The brief facts of the complaint petition is that OP No. 1 to 3 are the original land owners and they registered one power of attorney in favour of OP No. 4 authorizing him to make residential flats after receiving the price of the flat from intending purchasers and after completion of the flats to execute and register the sale deed to the purchasers and deliver them peaceful vacant possession. They also agreed to sign in the sale deed of purchaser along with the developer OP No. 4 who shall take all steps for making the said flats after taking the due permission and due sanction of the proposed building from Konnagar Municipality. OP No. 4 being the Promoter-cum-Developer invited the intending purchasers to take their respective flats as per order of OP No. 1, 2 & 3 vide power of attorney. The intending purchasers of the locality booked their respective flats for residential purposes. The Petitioner No. 1 to 2 both husband and wife booked one flat comprising of 1000sqft. of 3BHK in the 3^rd floor of the proposed building with undivided proportionate share of the said building within common user, right of roof and also all its easementary rights and facilities and others. An agreement has been executed between the parties on 14.07.2014 in which the price of the said flat has been fixed at Rs. 19,00,000/- and purchasers were to pay Rs. 4,00,000/- at the time of agreement and petitioner shall pay lump sum money every month as per agreement. As per said agreement dated 14.07.2014 the petitioner paid Rs. 100000/- by cheque to OP No. 4 on 17.06.2014 at the time of booking of flat. On 14.07.2014 the petitioner paid Rs. 400000/- by cheque to OP No. 4 during the execution of agreement for sale, on 25.07.2014 paid Rs. 300000/- by cheque to OP No. 4. On 09.08.2014 paid Rs. 100000/- by cheque to OP No.4. On 8.9.14 they paid Rs. 300000/- by cheque to OP No. 4. On 23.11.2014 paid Rs. 100000/- to OP No. 4 by cheque. So, the petitioners paid Rs. 13,00,000/- by cheque to OP No. 4 as per agreement. As per agreement the OP No. 1 & 4 agreed that after completion of the flat by October, 2014 they shall execute and register the said flat to the petitioner by accepting the balance money of Rs. 6,00,000/- from the petitioner. The petitioner went to the office of the OP No. 4 with balance money Rs. 6,00,000/- in November 2014. But they came to know that OP No. 1 to 4 have not completed the flat even they refused to execute and register the said flat to the petitioners. So this petitioner sent a registered notice to OP No. 1 to 4 on 09.09.2015 through their advocate requesting the OP to complete the flat and to execute and register the said flat in favour of the petitioners within 30.9.2015 by accepting the balance money Rs. 6,00,000/-from petitioners. But OP No. 1 to 4 refused to comply the said notice dated 09.09.2015. So, the petitioners have got no other alternative but to file this case for deficiency of service before this Forum praying for a direction upon the OP No. 1 to 4 to complete the flat within one month from the date of receiving the notice, to execute and register sale deed in favour of the petitioners by accepting the balance money, Rs. 800000/- as compensation to the petitioner for causing harassment and mental agony and Rs. 200000/- as cost of the litigation.

OP No. 4  by filing Written Version denied the allegations as leveled against him and he averred that it is not true that the petitioners had paid money on 27.06.2014 amounting to Rs. 100,000/- as booking money, it is not true that the petitioner paid money on 14.07.2014 amounting to Rs. 4,00,000/- to the OP No. 4, he also denied the money paid on 25.7.14 amounting to Rs. 3,00,000/-, money paid on 09.8.2014 amounting to Rs. 1,00,000/-, money paid on 08.9.2014 amounting to Rs. 3,00,000/-and money paid on 23.11.2014 amounting to Rs. 100,000/- to OP No. 4.

Actual fact of the case is that OP NO. 4 entered into one agreement of sale and accordingly the OP No. 4 complied all the terms and conditions of the said agreement and completed the said flat within November 2014 and also on request of the complainant done all the extra work as per direction and instruction of the complainant and after that in many occasion OP No. 4 requested the complainant to pay the rest consideration money along with extra work bill and also requested to take possession and execute registration of the scheduled mentioned flat. But the complainant in different pleas did not pay the rest consideration money along with extra work bill to the OP No. 4. When the complainant was not paying the rest consideration money to the OP No. 4 according to agreement then OP No. 4 sent one legal notice to complainant by registered post on 20.03.2015 for the cancellation of the said agreement dated 14.07.2014. The complainants received the same but without responding anything to the Ld. Advocate of the OP No. 4. Then the OP No. 4 filed one declaration suit with a prayer for cancellation of the agreement dated 14.07.2014 before the Civil Judge Jr. Division First Court at Serampore, Dist. Hooghly vide Title Suit No. 392/2015, which is pending. The OP No. 4 is suffering from Cancer as a result he requires expensive treatment and the OP No. 4 informed the said incidents to the complainant. And due to urgent need of money OP No. 4 agreed to execute the said agreement as the complainants promised to pay Rs. 17,00,000/- within October 2014. But the defendant by different plea did not pay the said money of Rs. 17,00,000/- only to the OP No. 4. OP No. 4 requested the complainants to pay the same and due to complainants non compliance of terms and conditions of the said agreement OP No. 4 entered into deep trouble for want of money and from the market the OP No. 4 took accommodation of loan for rescue. The OP No. 4 gave many opportunities to the complainants. But the complainants did not take the same and also the complainants tried to delay the proceeding of payment of rest consideration money to harass the OP No. 4. So, the answering OP prayed to dismiss the case with limini.

Complainant files affidavit-in-chief which is nothing but replica of complaint petition.

Both sides file Written Notes of Argument which are taken into consideration for passing Final Order. Oral arguments advanced by the parties. Heard in full.

ISSUES/POINTS   FOR   CONSIDERATION

1). Whether the Complainants Smt. Jaya Maitra and Sri Dulal Chandra Maitra are ‘Consumers’ of the Opposite Parties?

 2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3).Whether the OPs carried on unfair trade practice/rendered any deficiency in service towards the Complainant?

4).Whether the complainants proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?

DECISIONS WITH REASONS

 In the light of discussions herein above we find that the issues/points should be decided based on the above perspectives.

1. Whether the Complainants Smt. Jaya Maitra and Sri Dulal Chandra Maitra are ‘Consumers’ of the Opposite Parties?

  From the materials on record it is transparent that the Complainants are “Consumers” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. As the complainant being intenders to purchase flat from the opposite party, deposited money and executed agreement for sale so the complainants are consumers of the OP as per the consumer protection Act, 1986. The Opposite party being service provider is entitled to provide service to these complainants.

(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

 Both the complainant and opposite party are residents and/or carrying on business within the district of Hooghly. The complaint valued 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 Parties carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?

The case of the complainants is that OP No. 1 to 3 are the original land owners and they registered one power of attorney in favour of OP No. 4 authorizing him to make residential flats after receiving the price of the flat from intending purchasers and after completion of the flats to execute and register the sale deed to the purchasers and deliver them peaceful vacant possession. They also agreed to sign in the sale deed of purchaser along with the developer OP No. 4 who shall take all steps for making the said flats after taking the due permission and due sanction of the proposed building from Konnagar Municipality. The Petitioner No. 1 to 2 both husband and wife booked one flat comprising of 1000sqft. of 3BHK in the 3^rd floor of the proposed building with undivided proportionate share of the said building within common user, right of roof and also all its easementary rights and facilities and others. An agreement has been executed between the parties on 14.07.2014 in which the price of the said flat has been fixed at Rs. 19,00,000/- and purchasers were to pay Rs. 4,00,000/- at the time of agreement and petitioner shall pay lump sum money every month as per agreement. As per said agreement dated 14.07.2014 the petitioners paid Rs. 13,00,000/- by cheque to OP No. 4. As per agreement the OP No. 1 & 4 agreed that after completion of the flat by October, 2014 they shall execute and register the said flat to the petitioner by accepting the balance money of Rs. 6,00,000/- from the petitioner. The petitioner went to the office of the OP No. 4 with balance money Rs. 6,00,000/- in November 2014. But they came to know that OP No. 1 to 4 have not completed the flat even they refused to execute and register the said flat to the petitioners. So this petitioner sent a registered notice to OP No. 1 to 4 on 09.09.2015 through their advocate requesting the OP to complete the flat and to execute and register the said flat in favour of the petitioners within 30.9.2015 by accepting the balance money Rs.6,00,000/-from petitioners. But OP No. 1 to 4 refused to comply the said notice dated 09.09.2015. So, the petitioners have got no other alternative but to file this case for deficiency of service before this Forum praying for a direction upon the OP No. 1 to 4 as prayed in the prayer portion of the complaint petition.

OP No. 4  by filing Written Version denied the allegations as leveled against him and he averred that it is not true that the petitioners had paid money on 27.06.2014 amounting to Rs. 100,000/- as booking money, it is not true that the petitioner paid money on 14.07.2014 amounting to Rs. 4,00,000/- to the OP No. 4, he also denied the money paid on 25.7.14 amounting to Rs. 3,00,000/-, money paid on 09.8.2014 amounting to Rs. 1,00,000/-, money paid on 08.9.2014 amounting to Rs. 3,00,000/-and money paid on 23.11.2014 amounting to Rs. 100,000/- to OP No. 4. It is the averment of the OP NO. 4 that he entered into an agreement of sale and accordingly the OP No. 4 complied all the terms and conditions of the said agreement and completed the said flat within November 2014 and also on request of the complainant done all the extra work as per direction and instruction of the complainant and after that in many occasion OP No. 4 requested the complainant to pay the rest consideration money along with extra work bill and also requested to take possession and execute registration of the scheduled mentioned flat. But the complainant in different pleas did not pay the rest consideration money along with extra work bill to the OP No. 4. When the complainant was not paying the rest consideration money to the OP No. 4 according to agreement then OP No. 4 sent one legal notice to complainants by registered post on 20.03.2015 for the cancellation of the said agreement dated 14.07.2014. The complainants received the same but without responding anything to the Ld. Advocate of the OP No. 4. Then the OP No. 4 filed one declaration suit with a prayer for cancellation of the agreement dated 14.07.2014 before the Civil Judge (Jr. Division) First Court at Serampore, Dist. Hooghly vide Title Suit No. 392/2015, which is pending. The OP No. 4 gave many opportunities to the complainants. But the complainants did not take the same and also the complainants tried to delay the proceeding of payment of rest consideration money to harass the OP No. 4.

The OP No.4 in his written version denied the payment made by the complainants but the money receipts of OP No.4 clearly speaks that the complainants paid a sum of Rs.100,000/- on 17.6.2014,  they paid a cheque  being cheque No.007961 dated 08.9.2014 of Allahabad bank on 08.09.2014, also paid Rs.300,000/- in cash to OP No.4 on 25.7.2014 and they paid a cheque  being cheque No.489119 dated 9.8.2014 of Allahabad Bank Hindmotor branch amounting to Rs.1,00,000/- to OP No.4 and all the money receipts are endorsed by the OP No.4 . The complainants also assailed that they paid a sum of Rs.400,000/- through cheque during the period of agreement. But no money receipt filed regarding the payment of Rs.400,000/- but in absence of payment how the agreement for sale took place.  So we may presume that after payment  of advance money the agreement for sale took place and the complainants paid a sum of Rs.12,00,000/- in total to the OP No.4.  Remaining amount is to be paid by the complainants for getting the impugned flat registered from the OP. The agreement for sale clearly speaks that total value of the flat is Rs.19,00,000/-( 1000 sq ft. @ Rs.1900/- per sq ft.) but in the written version he stated that he agreed to the complainants to deliver the said flat with a consideration money of Rs.17,00,000/- due to urgent need of money but the complainants failed to take the opportunity.

 From the above discussion we may safely conclude that the complainants proved their case beyond reasonable doubt so the OP No. 1-4 are under liability to execute and register the flat in dispute by taking the remaining amount of Rs.600,000/- from these complainants.

4). Whether the complainants proved their case against the opposite party, as alleged and whether the opposite parties are liable for compensation to them?   

  The discussion made herein before, we have no hesitation to come in a conclusion that the Complainants have proved their case and the Opposite Party is liable to pay compensation for mental pain and agony of the complainants.

ORDER

Hence, it is ordered that the complaint case being No.221 of 2015 be and the same is allowed on contest against the Opposite Party with a litigation cost of Rs.5000/- to be paid to the complainants.  

OP No. 1to 4 are directed to execute and register the sale deed of the schedule mentioned flat in favour of the complainants by taking the consideration money amounting to Rs.6,00,000/- from the complainants within 45 days from thereceipt ofmoney from the complainants.

The OP No.4 is directed to pay compensation amounting to Rs.10,000/- for causing harassment and mental agony to the complainants within 45 days from the date of order.

All the payments are to be made within 45 days from the date of this order.

 At the event of failure to comply with the order the O.P. No. 1 -4 will pay cost @ Rs. 50/- for each days 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.

  Dictated and corrected by me