Date of Filing : 02/11/2020
Date of Judgement : 27/06/2024
Sri Manish Deb, Hon’ble Member
The Brief fact of the case is that the opposite party no.1 is the promoter/developer and opposite party no.2 is the owner of the landed property all that piece and parcel of land measuring about 2 cottah 0 chittack 24 square feet, Mouza-Kasba, J.L. No.-13, E.P.No.-45, in C.S. Plot No.-3091(P) being Premises No.-87, Sucheta Nagar(I), under KMC Ward No.- 105, Police Station-Kasba now Garfa, Post Office-Tiljala, Kolkata-700078 on which the G+3 building was to be constructed .
That the complainant with a desire to purchase a flat for his residential purpose approached to the opposite parties and accordingly the complainant and the opposite parties entered into an Agreement for Sale on 18/04/2018, on the same date, i.e., 18/04/2018 the opposite parties and the complainant also entered into a Supplementary Agreement for Payment Schedule of the said agreement and the complainant has paid a sum of Rs.2.00,000/- (Rupees Two lacs) only on the date of signing of Agreement for Sale, and it was settled that the balance consideration money of Rs.7,00,000/-(Rupees Seven lacs) only shall be paid by the complainant within stipulated period of the agreement and after payment of the entire consideration money the opposite parties should have to execute the registered Deed of Conveyance in favour of the complainant.
In this connection it was further stated as per agreement between the parties, the opposite parties shall handover possession of the flat to the complainant within 14 months from the date of agreement for sale in complete and habitable condition .
That on 11/03/2019 the complainant and the opposite parties entered into another Supplementary Agreement due to increase of the measurement of the flat area from 600 square feet to 750 square feet and accordingly a sum of Rs.1,00,000/- (Rupees one lac) only was also increased as the consideration money.
That according to the terms and conditions of the payment schedule of the agreement the complainant already paid a sum of Rs.4,35,000/-(Rupees Four lacs thirty five thousand)only and the opposite party No.-1 who received the said amount .
That the stipulated time framed for handing over possession the flat to the complainant in a complete and habitable condition was over and even after repeated verbal requests made by the complainant , the opposite parties did handover the possession of the flat and the opposite parties were not reacted .The complainant further stated that the opposite parties have already transferred the allotted or booked flat to third Party.
In this matter the complainant has made contact with the opposite party No.-1 for several times , opposite party No.-1 has given assurances to complainant to handover possession of the flat as early as possible, but opposite party No.-1 did not make no whisper about handover the possession of the flat to the complainant.
That the complainant being dissatisfied with the illegal and immoral acts of the opposite party No.-1, made a written complaint to the Officer-in-charge, Garfa Police Station on 11/01/2020 which was subsequently treated as FIR bearing No.-21 of 2020.
That from the date of signing of the Agreement for Sale dated 18/04/2018 till date filing of the complain case , more than 14 months were elapsed but the opposite parties neither handed over possession of the flat not informed about the progresses & position of the flat, as such the complainant was compelled to stop making any further payment of balance consideration money to the OPs from August. 2019.
That the complainant finding no other option for adequate remedy approached this Learned Commission seeking justice against the illegalities, misconduct and unfair of trade practice of the opposite parties .
OBSERVATION
we have perused the evidence and the material on record also upon hearing the Learned Advocate appearing for the complainant it appears to us that complainant entered in to an agreement with the opposite parties on 18/04/2018 subsequently on the same date the OPs and the complainant entered into a Supplementary Agreement for payment schedule for purchaser of a Flat situated at Mouza-Kasba, J.L. No.-13, E.P. No.-45, S.P. No.-47, C.S. Plot No.-309(P) being premises No.-87, Sucheta Nagar(1), P.S.-Garfa, Kolkata-700078, flat measuring about 600 square feet at a consideration of Rs.9,00,000/-
It is also evident from the record that the complainant has paid Rs.2,00,000/- as advance upon execution of the agreement and according to the term of the agreement complainant .
Subsequently the complainant and opposite parties again entered into another Supplementary Agreement of Sale on 11/03/2019 due to enhancement of measurement of area of the flat from 600 sq.ft to 700 sq.ft and also raised in the amount of the total consideration money from Rs. 9,00,000/- to Rs. 10,00,000/-
It is fact that the opposite parties undertook to complete the Flat and handover the possession of the Flat to the complainant after 14(fourteen) months from the date of execution of sale Agreement.
That the stipulated time frame for handing over possession of the flat in complete position and habitable condition to the complainant was already lapsed, even after repeated verbal request made by the complainant to opposite party No. 1 to hand over the possession of the flat but OPs did not take any initiative to hand over the possession of the flat to the complainant .
It is also stated that the after receiving information from the reliable sources that the opposite parties have sold the flat third party which was allotted in the name of complainant . The complainant has made a complain before the Garfa Police on 11.01.2020 against the opposite parties being dissatisfied with the illegal and immoral activities of the opposite parties.
Above all the opposite parties did not comply with the terms and conditions of the Agreement. Thus the complainant has initiated the complaint petition before this commission against the opposite parties considering there were deficiency of services and unfair trade practice towards the complainant by the opposite parties
The services of summons /notice upon the opposite parties are duly served. The opposite parties not entered appearance of the case. The opposite parties were abstained themselves from taking any steps in the case or filing of any written version before the commission for adjudication even they have not attended the commission after several dates are elapsed .
The complainant has filed Affidavit in - Chief, he also filed brief notes on arguments and also submitted verbally through his Ld. Advocate.
POINTS FOR DECISION
- Whether the complainant fall in the category of the “Consumer” under Consumer Protection Act, 2019.
- Whether the present complainant is within limitation under Consumer Protection Act, 2019.
- Whether the commission has the jurisdiction to decide the present complainant.
- Whether the opposite party in deficient in providing its services to the complainant.
- Is the case is maintainable or not.
- Is the complainant is entitled to get relief as prayed for.
The complainant is fall in the category of the “Consumer” underConsumer ProtectionAct, 2019.
The complaint is filled within two years from the date on which the cause of action has arisen.
The Commission has territorial jurisdiction to decide the present compliant, the complaint petition has been filed against opposite parties in respect of properties situated at Mouza-Kasba, J.L. No.-13, E.P.No.-45, in C.S. Plot No.-3091(P) being Premises No.-87, Sucheta Nagar(I),under KMC Ward No.- 105, Police Station-Kasba now Garfa, Post Office-Tiljala, Kolkata-700078within the territorial jurisdiction of this commission .
The main question for consideration before us is whether the opposite parties are deficient by avoiding process of hand over the possession of the flat stated in the compliant petition in complete & habitable condition.
Our view is that the opposite parties are also liable in deficiency in service and unfair trade practice as alleged by the complainant although the OP No. 2 has already conferred hispower of delivery & registration of the flat from the allocation of the Developers / opposite party No.1thusthe OP No. 2 is also fully liable in deficiency in service and unfair trade practice.
And we considered that regarding entitlement of getting relief sought by the complainant is also affirmative.
Undisputedly , the complainant with an intention of purchase the said flat he entered into a sale agreement with opposite parties , and the opposite parties had to hand over the possession of the same with habitable Condition within stipulated period as stated in the sale agreement after receiving of full consideration amount from the complainant.
However the opposite parties have failed to full fill their promise regarding delivery of the possession of the flat within the time frame and as such the opposite parties were deficient in rendering service towards the consumer i.e. the complainant.
The complainant several times requested the opposite parties to make registration of the flat but opposite parties shows don’t care mode and avoided the prayer of the complainant It is also shows the deficiency in service as breach of agreement between parties herein thus the case is maintainable as per law.
We also observed the opposite parties have been grossly neglecting and avoiding process of hand over the possession of the flat in favour of the complainant as per the stipulated period and conditions as stated in the sale Agreement , even opposite parties mainly opposite party No. 1 not willing to refund the earnest money on failure of hand over possession of the flat to the complainant Thus the opposite parties caused loss , injury and damages in respect of harassments and mental agony to the complainant.
We also perused the evidences of the complainant from where we could not able to trace any unethical points to disbelief the complainant’s stands and position in respect of responsibility of the opposite parties toward delivery of the possession of the flat of Flat , opposite parties could not be able abstain themselves from liability towards the complainant.
This is fact and it is clear that the complainant is consumer to the opposite parties as defined in Consumer Protection Act such the complainant can be categorized as the consumer with the definition of Section 2(7) (ii) of the Act ,, hence it is pertinent to state that as per application and written argument of the complainant, opposite parties failed to comply with their promise and offers within the stipulated period and it is caused deficiency in service on the part of the opposite parties, hence the complainant is entitled to get relief.
Hence it is
ORDERED
a) The opposite parties shall complete the flat and make it habitable condition and deliver the possession of the flat measuring about 750 square feet situated on the first floor of the building facing north-south-east side situated at “Jayanti Bhavan”, 1/45 Sucheta Nagar, under KMC Ward No. - 105, Police Station-Kasba now Garfa, Post Office-Tiljala, Kolkata-700078 property within 60 days to the complainant, alternatively return Back the entire consideration money Rs. 4,35.000 /- with interest @ 9% per annum from the date 18.04.2018.
b) The opposite parties shall pay the compensation for mental agony and harassment suffered by the complainant along with cost of litigation a sum of Rs 50 ,000/-.
c) The opposite parties, shall pay the entire amount awarded as per this order within 60 days from the date of receipt of the copy of this judgment, failing which interest@ 9% per annum should be paid till the date of actual payment in respect of the entire amount .
The Complaint Case is here by disposed of.
Directed and corrected by me
Member
