This complaint petition is filed u/s 35 of the Consumer Protection Act’ 2019 at the instance of the Complainant against the Opposite parties for alleged deficiency of services on the part of the Opposite parties in a consumer dispute of shop room  construction and delivery thereof as a rehabilitation measure.

The facts of the complaint case in a capsulated form is that OP1 is the Landowner of a 910 Sq.ft area at Touzi no 109, RS Khatian no. 1227, RS Dag no 161, Mouza : Barhans Fartabad being holding no 2163, Garia Main Road PS Narendrapur under Ward no 29 of Rajpur Sonarpur Municipality. The OP1 desired to develop the property on that premises and entered into a development agreement dated 14.02.2019 with OP2. The complainant was a tenant in the existing shop room of 179 Sq.ft on the ground floor for last 50 years running tea shop for earning livelihood who entered into an agreement dated 24.12.2019 with the OPs valued for Rs. 2,00,000/- for rehabilitation and with a promise for handing over a newly constructed shop room admeasuring 140 Sq. Ft. carpet area i.e. 151 Sq. Ft. built up area on the ground floor facing West towards Garia Main road against a consideration money of Rs 2,00,000/-. The complainant paid Rs 1,00,000/- as advance out of the total consideration money. As per the sales agreement, it was agreed between the parties that the said shop would be completed and handed over by the OP within stipulated period from the date of signing of that agreement. But the OPs did not get the suit property registered and conveyed in favour of the complainant neither got delivery of physical possession.

A legal notice dated 21.02.2022 was also served by the complainant on the OPs in this respect but of no avail. The OPs did not take any step and there was no progress even after persuasions by the complainant and all his efforts went in vein. Hence, the complainant approached this Commission with a prayer for a relief to pass an order to give direction upon the OPs to execute and register the deed of conveyance alongwith compensation and cost for mental agony & harassment etc.

Complainant files exhibits such as Sale agreement (Annx-A) alongwith Memo of consideration and Legal notice in support of his claims.

The complaint case was taken up for final hearing on ex-parte basis on 23.07.2024 when only the Ld. Advocate of the Complainant was present who filed Brief Notes of Arguments. The submissions made by the Ld. Advocate for the complainant were considered and the materials on record were scrutinised.

The contents of the petition of complaint supported by affidavit and the documents annexed therewith were taken on record. Evidence on affidavit was also filed by complainant. The OPs neither filed written version within statutory period nor availed the opportunity to participate in the adjudication process nor did participate in final hearings.

A Revision Petition no RP/1506/2023 was filed by the OPs before the Hon’ble National commission challenging the ex-parte order of the District commission but that Order of the District commission on ex-parte hearing against the OPs was upheld by the Hon’ble National Commission.

Thus the case was heard ex-parte against the OPs.

Upon perusal of the petition of complaint and the evidence on record, it transpires that the OPs were going to construct a house building complex comprising flats and shop rooms and other facilities at suit premises. A tripartite agreement was executed between the OP1 landowner, OP2 Developer and the Complainant cum tenant against payment of memo of consideration.

It also transpires from records and evidences on affidavits and annexures exhibited by complainant in the complaint petition that the complainant and the Opposite parties entered into a Sale agreement on 24.12.2019 and by this agreement the complainant cum tenant booked one shop room at ground floor having a built up area of 151 sq. ft. receipts exhibited by the complainant.  It also appears that the OPs did not take any step for hand over of the suit property neither they took any step to refund the booking money to the complainant. It is not in dispute that the OPs have received the said booking amount of Rs. 1,00,000/- and complainant cum tenant’s area, but failed to deliver the possession of the constructed shop room to the complainant after taking balance consideration money.

As per records exhibited and filed by the complainant, the constructed suit property is duly earmarked and recorded as a shop-room as per the sanctioned plan & elevation no. 247/Rev/03/29/67 dated 11.04.2022 of Sonarpur-Rajpur municipality valid till 11.04.2025.

The opposite parties have failed to offer possession of the shop room agreed to be provided to the complainant by the date stipulated in the Tripartite Agreement having already expired from the said committed date. Hence the allegation of deficiency of service by OPs gets proved. The complainant can not be compelled to wait any more for the landlord and builder to deliver possession and he is entitled to get the delivery of possession along with appropriate compensation. The facts and circumstances and materials on record, more particularly, relying upon the evidence on record, it is palpably clear that the OPs could not keep their promise and as such, they are deficient in rendering services towards a consumer.

In view of the above discussions, it is held that the complainant is entitled to get the delivery of possession of the shop room as per schedule B of the agreement dated 24.12.2019 after payment of balance consideration amount along with appropriate compensation for the financial loss and mental agony and harassment that he suffered on account of the failure of the OPs to deliver possession of the suit property. We therefore hold that there is deficiency in service on the part of the Opposite parties in the matter of construction and delivery of possession of the shop room as per terms and conditions of the tripartite agreement dated 24.12.2019.

In the result, the Complaint case succeeds. The complainants are entitled to get relief as prayed for.

Hence, it is

                                                                                                Ordered

That the complaint case no. CC/69/2022 be and the same is allowed on ex-parte basis against the OPs with cost of Rs. 25,000/-.

The OP1 and OP2, jointly and/or severally, are hereby directed to deliver the possession of the shop room to the complainant as per schedule ‘B’ of the tripartite agreement dated 24.12.2019 and to execute and register the Deed of Conveyance in favour of the complainant after receiving the balance consideration money of Rs.1,00,000/- (Rs. One Lac only) from the complainant on the day of registration within 45 days from  the day of passing this order.

Further the OP1 and OP2, jointly and/or severally, are hereby directed to pay a compensation to the complainant in the form of a simple interest @ 9% per annum on the advanced amount of Rs.1,00,000/- (Rs. One Lac) with effect from the date of Sale Agreement i.e. 24.12.2019 till the date of registration and delivery of possession and final realisation of the entire amount of compensation for deficiency in services, mental pain and agony suffered by him.

The OP1 and OP2 are also jointly and severally liable and directed to pay a litigation cost of Rs. 25,000/- (Rupees Twenty Five Thousand) only to the complainant.

All the above said payments in terms of this order will be made by the OP1 and OP2 , jointly and / or severally, to the complainant within 45 (Forty five) days from this day I/D a simple interest @ 12% per annum will get accrued till the date of full compliance of the decree.

If the Opposite party fails to comply with the above said direction within the period mentioned above, then the complainant is at liberty to put the entire order into execution in due course of law.

Let a plain copy of this Order be provided to both the parties free of cost as per CPR 2005.