This case has been filed U/s.12 of the Consumer Protection Act, 1986 filed by the complainant, Sri Nimesh Samani that he purchased two flats from the opposite party which are being no. 1 having cover area 870.66 sq.ft and super built up area 1044-79 sq.ft. and being no. 3 having covered area 830.02 sq.ft. and super built up area 996.02 sq.ft. on the 1st floor of “MANOKA APARTMENT” Mirzapur Bankipur, under P.S.- Singur, Dist.- Hooghly through two registered deeds of sale and out of two deeds, flat no. 1 was registered in Book No. 1 C. D. Volume No. 5, pages from 211 to 228 being no. 04800 for the year 2014 of A.D.S.R. Singur, Dist.-Hooghly, West Bengal and Flat No. 3 was registered in Book No. 1, C.D. Volume No. 14, pages from 5123 to 5141 being No. 4770 for the year 2014 of A.D.S.R. Singur, Dist.- Hooghly, West Bengal and on 24.12.2014 & 29.12.2014 at the time of registration the opposite party could not complete the said first floor flat being no. 1 and 3 and as such the opposite party could not deliver the possession of those flats as such the opposite party assured the complainant that opposite party would deliver the possession of the said flats within eight months i.e. within August, 2015 but the complainant did not accept the said proposal of the opposite party but the opposite party cordially requested the complainant that the opposite party would deliver the possession positively of the said flats within August,2015 and he also declared if he would fail to deliver possession in that case he would pay compensation @ 1% per month on the consideration amount of both flats i.e total amount of Rs. 12,00,000/- and an agreement on that effect was executed by both the parties and the petitioner trusted upon the said declaration and accepted the said proposal of the opposite party but on 1st September, 2015 when the complainant asked the opposite party for delivery of possession of the above said flats, the opposite party stately declared that he would pay compensation for the period of delay to delivery of possession of those flats and on the other hand when the complainant asked the opposite party how long they would wait for delivery of possession of the flats but the opposite party did not give any reply.
The complainant also states that on 7.11.2016 a worker of the opposite party gave the keys of the above flats to the complainant and after taking the possession to note that there is no glass was fitted with the wings of the windows, no window in the room no. 1, no sour tap call was fitted, horizontal and vertical carks, on the walls of the room, no lift was fitted and incomplete Common Varanda or passage and then and there the complainant asked the opposite party over mobile phone, but the opposite party said that he was out of station and he would complete property in near future and on 31.12.2016 the complainant requested the opposite party firstly to complete the above incompleted points of the flats, secondly to pay the compensation @ 1% per month on amount of Rs. 12,00,000/- as he declared and thirdly to deliver the possession certificate of the above two flats and the opposite party assured the complainant that he would complete the above flats within a short time and pay the compensation and possession certificate within August, 2017 but he again did not keep his word and lastly he assured that he would pay the compensation and possession certificate within December,2017 but he failed and the cause of action for filling of the above case arose on 24.12.2014, 31.12.2016, 31.12.2017 when the opposite party refused the aforesaid proposal of the complainant.
Complainant filed the complaint petition praying direction upon the opposite party to pass and order of injunction direction the opposite party to complete the schedule flats by repairing the crakes and to fit the glasses to the wings of the window and to fix up the iron shatter gate of the passage on the first floor and to fix the lift and to pass an order directing the opposite party to issue the possession certification of schedule flats to the complainant and to pay sum of Rs. 10,00,000/- only as compensation for mental agony and to pay a sum of Rs. 1,80,000/- only for delay delivery of possession of schedule flats and to pay all costs of the case and any other relief or reliefs to which the complainant is entitled under law and equity.
Opposite party appeared but failed to file written version so the proceeding run ex-parte against them vide order No.9 dated 7.3.2019.
Argument advanced by the Ld. Advocate of the complainant heard ex- parte in full & he filed BNA.
ISSUES/POINTS FOR CONSIDERATION
1). Whether the Complainant Sri Nimesh Samani is a ‘Consumer’ of the opposite party?
2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3).Whether the opposite party carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
(1).Whether the Complainant Sri Nimesh Samani is a ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainant herein is the consumer of the opposite party, as the complainant being the intending purchaser paid consideration money and possessing the schedule mentioned flats, so he is entitled to get service from the opposite party as consumer.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite party are residents/having office address within the district of Hooghly. The complaint valued Rs.11,80,000/- for loss sustained by the complainant and as compensation for mental agony and other expenses ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
The case of the complainant, Sri Nimesh Samani is that he purchased two flats one measuring covered area 870.66 sq ft and super built up area 1044.79 sq ft of flat No.1 and other flat no.4 measuring covered area 830.02 sq.ft. and super built up area 996.02 sq.ft. on the 1st floor of “MANOKA APARTMENT” Mirzapur Bankipur under P.S.- Singur, Dist.- Hooghly through two registered deeds before A.D.S.R. Singur, Dist.-Hooghly, West Bengal on 24.12.2014 & 29.12.2014. At the time of registration the opposite party could not complete the said first floor flats being no. 1 and 3 as such he assured the complainant that opposite party would deliver the possession of the said flats within eight months i.e. within August, 2015 but the opposite party cordially requested the complainant that the opposite party would deliver the possession positively of the said flats within August, 2015 and he also declared if he would fail to deliver possession in that case he would pay compensation @ 1% per month on the consideration amount of both flats i.e. total amount of Rs.12,00,000/- and an agreement on that effect was executed by both the parties and the petitioner trusted upon the said declaration and accepted the said proposal of the opposite party but on 1st September, 2015 when the complainant asked the opposite party for delivery of possession of the above said flats but the opposite party did not give any reply. That on 7.11.2016 a worker of the opposite party gave the keys of the above flats to the complainant and after taking the possession the complainant found that there is no glass was fitted with the wings of the windows, no window in the room no. 1, no sour tap was fitted, horizontal and vertical cracks, on the walls of the room, no lift was fitted and incomplete Common Varanda or passage and then and there the complainant asked the opposite party over mobile phone, but the opposite party said that he was out of station and he would complete property in near future and on 31.12.2016 the complainant requested the opposite party firstly to complete the above incompleted points of the flats, secondly to pay the compensation @ 1% per month on amount of Rs.12,00,000/- as he declared and thirdly to deliver the possession certificate of the above two flats and the opposite party assured the complainant that he would complete the above flats within a short time and pay the compensation and possession certificate within August, 2017 but he failed.
So the Complainant getting no alternative filed the instant case praying directions upon the opposite party as incorporated in the prayer portion of the complaint petition. Despite receiving notice opposite party did not file written version and also failed to file evidence on affidavit in respect of the complaint petition filed by the complainant. So the complaint petition is unchallenged one.
After perusing the complaint petition, written version, evidence on affidavit and hearing the parties it is transparent that the complainant paid the consideration money during agreement for sale and paid agreed value and after registration is in possession since then. Dispute cropped up when the opposite party failed to complete the flats already delivered by executing deeds and also failed to pay delay compensation in delivery of the flats in accordance with the deed of agreement and also failed to issue possession letter. The complainant alleged that the opposite party failed to complete the impugned flats as per agreement in all corners in his complaint petition but the opposite party failed to show good gesture by completing the incomplete works after getting several reminders from the complainant which tantamount to deficiency of service on the part of the opposite party builder/ developer.
It is trite law that after accepting the entire consideration amount, it is statutory obligation on the part of the developer to execute the deed of conveyance in favour of the purchaser/buyer after completion of flat alongwith the possession letter. There is document available on the record that the complainant has made several requests to complete the flats, to get delay compensation in delivering the flats and to get possession letter in favour of him but it remained unheeded.
Therefore relying upon the materials on record we have no hesitation to hold that the complainant is entitled to an order of getting the flats being completed within the time framed. Since the landowner as well as well as developer did not take appropriate steps for completion of construction work and to deliver the flats in favour of the complainant within the time period from the date of payment as per terms of the agreement, it has caused tremendous mental agony and pain to the complainant. However, since the complainant is in possession considering the loss suffered by him, he is entitled to compensation of Rs.10,000/- from the opposite party.
Going by the foregoing discussion hence it is ordered that the complainant abled to prove the deficiency of service of the opposite party for non delivery of flats within the time framed, completion of construction work even after delivery of possession and not to pay compensation for delivering the flats beyond the time period by adducing cogent document/evidence and not issuing possession letter in favour of the complainant so the prayer of the complainant is allowed ex-parte. However considering the facts and circumstances there is order as to cost. With the abovementioned observation the complaint petition is thus disposed of accordingly.
4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant abled to prove the deficiency of service of the opposite party in respect of completion of construction works in the schedule mentioned flats, deliver the flats by providing possession letter.
ORDER
Hence, ordered that the complaint case being No.61/2018 be and the same is allowed ex-parte against the opposite party with a litigation cost of Rs.8000/- to be paid by the opposite party .
The Opposite Party is directed to complete the construction of the flat, unless already completed, in all respects provide all the agreed amenities and to issue possession letter in favour of the complainant in accordance with the terms of the agreement within 45 days from the date of passing this order.
The Opposite Party is directed to pay compensation amounting to Rs.50,000/- to the complainant for mental pain and agony within 45 days from the date of passing this order.
At the event of failure to comply with the order the Opposite Party shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.
Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.
