FINAL ORDER/JUDGMENT   

SMT. SUKLA SENGUPTA, PRESIDENT

The complainant has filed this case U/s 35 of CP Act, 2019 against the OPs submitting, inter alia that he intend   to purchase the subject flat from the OPs on the basis of application code HGIBOOK/03499/14-15 and application No. 53970. The subject flat was allotted to the complainants in the apartment being No.  14A1 on the 14^th floor, tower 45, at Highland Greens hereinafter referred to as the project developed by the OPs/Co. as described in the schedule of the petition of complaint. The photocopy of application form mentioned above is annexed herewith as annexure-“1”. 

It is further stated by the complainant in the petition of complaint that on the basis of said application, they have entered into an agreement with the OPs on 09.08.2014 and the OPs offering allotment letter bearing No. Highland Greens/allotment/AG/14-15/T-45/14/A1 and the net price of the apartment/flat  is/was Rs. 20,80,000/- including the maintenance corpuses deposit and covered car parking. The photocopy of the allotment letter is annexed herewith as annexure “2”.  

The complainant further stated that they paid entire consideration money of the subject flat by installments to the OPs. The OPs in their  allotment letter have mentioned the flat /apartment. The list of payment details, 09.08.2014 to 03.08.2017 is annexed as annexure-“3”.

 It is alleged by the complainant in the petition of complaint that unfortunately, the OPs demanded the 8^th as well as final installments of consideration money in respect of the subject flat/apartment from complainant   before giving possession of the apartment in question vide letter dated 10.12.2019 informed the demand letter and also for the execution of deed of conveyance of the subject flat/apartment . They demanded a sum of Rs.  4,49,844/-.  They also stated that the complainant  is  liable to pay rest amount of Rs. 65,444/- along with cost of registration and stamp duty  but the complainant is not liable to pay any additional cost except the balance amount. The photocopy of demand letter dated 10.12.2019 issued by the OPs is annexed as annexure- “4”.

It is the further case of the complainant that as per general terms and conditions of the allotment letter dated 09.08.2014,  the OPs promised to handover the said flat/apartment  to the complainant within 42 months from the date of allotment of apartment described in the schedule  of the petition of complaint and after due payment of 8^th installment,  the OPs failed to deliver  the possession of the subject flat/apartment in question on and before the month of Feb, 2018. The photocopy of letter dated 19.06.2018 and 02.01.2019 are annexed as annexure-“5” series.

The complainant further stated that he made several communications   with the OPs since long but the OPs deliberately failed to give possession within specified time against receiving 8^th installment which is to be paid full and final by the complainant. The complainant visited the subject flat/apartment on 23.12.2019 and found that the same is not completed till them. In respect of joint inspection signed by the complainant and the appointed engineer of the OPs and also against the demand letter against 8^th and final installment, the complainant stated that the subject flat /apartment  needs to be repaired and completed  by the OPs but the OPs did not inform the complainant  about the status of flat/apartment. Ultimately, the complainant served a legal notice upon the OPs on 24.02.2020 which is annexed as annexure-“7”.  Thereafter on 17.07.2020,  the complainant  received a letter from the OP along  with statement of A/c dated  08.07.2020 wherein it was stated  that if the complainant did not pay the amount of  Rs. 3,14,569/-  to the OPs within 15 days,  the OPs will be constrained to  cancel   the  allotment of said apartment. The said letter dated 08.07.2020 is annexed as annexure-“8”.   

Then, without having any other alternative, the complainant has filed this case with a prayer to give direction to the OPs to deliver the possession  of the flat/apartment  to the complainant  by executing   the register deed of conveyance  in respect of the said flat/apartment  on receipt of balance amount  of consideration.  Upon obtaining the completion certificate together with the amount of interest @ 18 % p.a.  on the paid amount of Rs. 20,14,555/-  till the delivery of possession  of schedule flat /apartment on account  of delay of delivery  of schedule  property  and also prayed for giving direction to the OPs to pay compensation  of Rs.  10,00,000/-  for harassment,  mental pain and agony to the complainant along with litigation  cost of Rs. 50,000/-.

 The OPs have contested the case by filing a WV denying all the material allegations leveled against them.

It is alleged by the OPs that the complainant is not a consumer within the meaning of CP Act,  2019.  It is alleged that the petition of complaint is not maintainable before this commission. The OPs further alleged that the complainant has filed this petition of complaint by suppressing the material facts before this commission and he had no cause of action to file this case.

The OPs further alleged that there was no deficiency in service on their part. 

It is admitted by the OPs in their WV that the complainant has booked apartment being No. 14A1, 14^th Floor, Tower- 45 at Highland Greens. The said apartment /flat was allotted in favour of the complainant vide allotment letter dated Aug 09,  2014 and the complainant accepted the terms and conditions of  allotment  letter as well as the terms and conditions  of the GTC forming a  part of such allotment letter  by putting his signature thereon  and it is alleged by the OPs that a sum of Rs. 4,42,748/-  is still due and payable by the complainant towards the consideration  money of the subject apartment/flat and further an amount of  Rs. 69,832/-  has to be paid by the complainant.

The OP denied that the net price (consideration money) of the said apartment/flat  was not  of Rs. 20,80,000/- because the total cost of the said apartment/flat   is/was of Rs  24,50,207/- only. and the complainant was liable to tender certain extra charge such as generator charges, electrical   infrastructure cost and security deposit, legal charges and so on payable qua 14 of GTC. It is alleged by the OPs that the complainant failed to comply the terms and conditions of allotment letter and GTC and 8^th and final installment is due before the possession of apartment/ flat could be given to the complainant on Dec 10, 2019.   It is alleged by the complainant that he has leveled baseless, malicious, and vexatious allegations against the OPs for a merely exercising right as enumerative GTC and the petition of complaint is malafide and motivated one. The complainant has filed the petition of complaint for wrongful gains. Thus, the same is liable to be dismissed with cost.

In view of the fact and circumstances, the points of consideration are as follows:-

1. Is the case maintainable in its present form?
2. has the complainant any cause of action to file the case
3. Is the complainant a consumer?
4. Is there any deficiency in service on the part of the OPs?
5. Is the complainant entitled to get relief as prayed for?
6. To what other relief or reliefs is the complainants entitled to get?

Decision with reasons

All the points of consideration are taken up together for convenience of discussion and to avoid unnecessary repetition.

It is the case of the complainant that he intend to purchase one flat/apartment at Highland Greens from the OPs, in that effect he submits an application being code No. HG1BOOK/03499/1415 and application No. 53970. Accordingly, the OPs allotted the subject apartment/flat to the complainant being No. 14A1, on the 14^th floor, tower-45, at Highland Greens which is described in the schedule petition of complaint. In order to that the complainant and the OPs had entered into an agreement on 09.08.2014 by offering allotment letter bearing No. Highland Greens/Allotment/AG/14-15/T-45/14/A1 and the net price of the apartment/flat is of Rs.  20,80,000/-  only.  It is alleged by the complainant that the OP agreed to handover subject  flat /apartment  within 42 months from the date of allotment but they could not be able to handover the same to the complainant  on payment  of balance consideration  money even on repeated request by the complainant.  Hence, in order to prove this case, the complainant submitted the affidavit in e/chief that is evidence. The OPs on contrary also filed the WV and affidavit in chief.

On a close scrutiny of the materials on record, it appears that admittedly, the subject apartment/flat was allotted to the complainant by the OPs on the basis of application made by the complainant being application code No.  HG1BOOK/03499/1415, application No. 53970 and the subject flat/apartment being No. 14A1 of the 14^th floor, tower 45, at Highland Greens. From the evidence on record and the document as filed by the parties to this case, it is found that out of Rs. 20,80,000/-,   the complainant has already paid a sum of Rs. 20,14,555/- in total on installments to the OPs. From the documents issued by the OPs,   i.e. allotment agreement in clause 11 under heading “possession”,  it is clear by the OPs that they will give possession of the apartment/flat in question to the allottees within  42 months from the date of allotment. Admittedly, the allotment agreement was made in between the parties on 09.08.2014 by offering letter to the complainant by the OPs but the 42 months was expired on 08.02.2018. The complainant on repeated occasion requested the OPs to handover the possession of the subject flat/apartment to the complainant on receipt of the balance amount of consideration money i.e.  8^th and final installment but the OPs without handing over the possession of the subject flat/apartment in question demanded the 8^th and final installment from the complainant.  From the evidence on record, it is revealed that after several communications made from the end of the complainant to the OPs. The OP stated that subject flat/apartment was ready for handing over the possession but on a physical  verification  in the subject apartment/flat the complainant found that it was an  incomplete apartment/flat.  A joint inspection report was made in presence of the complainant and the engineer appointed by the OPs dated 23.12.2019 but the OPs did not give any response to the said letter dated 25.12.2019 of the complainant. Such conduct of the OPs should be considered as deficiency   in service and unfair trade practice because it is the view of the Hon’ble Apex court as observed in several cases that a real estate consumer cannot wait for an indefinite period for getting the possession of the subject flat/apartment or for the execution and registration of deed of conveyance  of the same. The Hon’ble Apex court has also been observed in several cases that if the service providers failed to handover the possession of the subject apartment/flat to the consumer within time limit as mentioned in the agreement or GTC in allotment letter, such conduct of the OPs should be considered as deficiency in service and unfair trade practice. In the instant case,   the complainant has also paid the consideration money of the subject apartment/flat of a sum of Rs. 20,14,555/- out of total consideration of Rs. 20,80,000/- in 7^th installment.  It was agreed that the 8^th and final installment will be paid after getting the possession of the subject flat/apartment but in the instant case, the OPs admitted in the WV, evidence on record and written argument that they allotted the subject apartment/flat in question as mentioned in schedule of the petition of complaint which is allotted on 09.08.2014 being apartment No. 14A1 on the 14^th floor, tower 45, at Highland Greens and mentioned in the offering allotment letter bearing No.  Highland Greens/allotment/AG/14-15/T-45/14/A1 and they demanded more money time to time from the complainant. The OPs denied that the total consideration money of the subject apartment was of Rs. 20,80,000/-. They stated that it was more than Rs. 20,80,000/- but from the allotment agreement and GTC and schedule  cost and charges and payment schedule of the apartment in question as  issued by the OPs,   it is found that the net price of the subject apartment/flat is/was of Rs. 20,80,000/-.

 So, from the discussion made above,  it is revealed that  in spite of payment of the maximum amount of the consideration money i.e. of Rs. 20,14,555/- out of total consideration  money of Rs. 20,80,000/-  in 7 installment  made by the complainant  as per terms  and conditions of the allotment agreement,  the OPs by taking several baseless pleas harassing the complainant and did not handover the possession of the subject apartment/flat as mentioned in schedule petition   of complaint within the specified time as per allotment agreement.

From which it is palpably clear that in the instant case, the complainant is a consumer within the ambit of CP Act, 2019 and the OPs are the service providers who neglected and failed to give service to the complainant and such conduct of the OPs should be considered and treated as deficiency in service on their part.  

From the evidence on record and also considering the position of law, it is found that this commission has got the ample jurisdiction to try this case both territorial and pecuniary.  

It is also found that the complainant  has the cause of action to file  this case arose on 17.07.2020 when the complainant received the notice dated 08.07.2020 from the OPs,   demanding a sum of Rs. 3,14,569/- along with Rs. 14,569/- during pandemic situation in reply of the lawyers notice dated  24.02.2020  served by the complainant. However, till date the OPs failed to handover the possession of the subject apartment to the complainant on received of the balance consideration money.  It is well known to us that cause of action is bundle of facts and is continuing till filing of the case.
            Under such circumstances, it is held by the commission that the complainant has sufficient cause of action to file the case against the OPs and it is also held that the complainant filed the case within the period of limitation.  

In sum, it is opined by this commission that the case is well maintainable in the eye of law.

It has already been discussed above and held by this commission that the complainant   is a consumer and the OPs are the service providers to each other within the ambit of CP Act,   2019.

It is also revealed from the evidence on record as adduced by the parties to this case that in spite of receiving the part consideration money of Rs. 20,14,555/- on installments out of the net price of subject  apartment/flat  of Rs. 20,80,000/- in total. It is also revealed  and proved from the evidence on record as well as facts and circumstances  of this case that in spite of expiry of statutory period  of  42 months on and from  09.08.2014 as per letter of allotment dated 09.08.2014.The OPs failed to handover the possession of the subject flat to the complainant and also failed to execute and register the deed of conveyance in favour of the complainant  to that effect on receipt  of balance  consideration  money from the complainant which caused harassment, negligence, mental pain and   agony to the complainant and could be  able to prove that there was clear deficiency in service on the part of the OPs.

On the basis of such discussions,   this commission is opined that the OPs being the service provider to the complainant has failed to fulfill the terms and conditions of  the letter of allotment  dated 09.08.2014 and are liable to give compensation  to the complainant .

Under such circumstances, being a consumer the complainant is entitled to get the relief as prayed for.

All the points of consideration are considered and decided in favour  of the complainant.

The case is properly stamped.

Hence,

Ordered

that the case be and the same is decreed on contest against the OPs with cost of Rs. 5,000/-.

The complainant  do get the decree as prayed for.

The OPs are directed to deliver the possession of flat/apartment to the complainant by executing and registering the deed of conveyance on receipt of balance amount of registration and also directed to  handover the completion   certificate to the complainant within 45 days from this date of  order.

The OP are further directed  to pay compensation  of a sum of Rs. 2,00,000/- to the complainants for harassment,  mental pain and agony along with litigation cost of Rs. 10,000/-. either jointly or severally within 45 days from this date of order id, the complainant will be at liberty to execute the decree as per law.

Copy of the judgment be uploaded forthwith  on the website of the commission for perusal.