Hon’ble Mrs. Soma Bhattacharjee, Member

CC/225/2017 has been filed by Dr. Atal Behari Sharma against the OP nos. 1 and 2 Tanvee Housing Development Pvt. Ltd., represented by its Director, having its office at Durgapur, District – Burdwan, Pin – 713212 and Tanvee Housing Development Pvt. Ltd., represented by its Director, having its office at Flat No. 2B, 1^st Floor, 8/2/16A, Arobindo Sarani, Parul Bhawan, Kolkata – 700028 (WB).

The complaint case in a nutshell is that the complainant agreed to purchase a flat under P.S Durgapur, Dist – Burdwan, Mouza Bamunara, R.S Plot no 205 & 208, L.R. Plot no. 5 & 6, J.L. No. 58, Khatian No. 548, Village & P.O. Bamunara, measuring 1555 sq. ft. super built up area and 1088 covered area in a G+11 proposed multi storied building along with car park of 120 sq. ft as per 1^st schedule of the agreement. The total consideration payable by the complainant was Rs. 27,87,400/-. The sale agreement between the complainant and the 2 OPs was executed on 25^th October, 2011. The OPs agreed to deliver the possession of the completed flat within 24 months from date of agreement along with a grace period of 4 months. It was mentioned in the agreement that if there is a delay in delivery of possession the developer would pay an interest @ 12 % on the amount paid by the complainant.

As per the payment schedule of the sale agreement the complainant paid an amount of Rs. 25,06,453/- up to 20.01.2014 and money receipts were issued by the OPs. (Copies of these have been filed by the complainant). Although the stipulated period of handing over the ready flat was February, 2014 the developers were reluctant to deliver possession of the said flat by that period. The complainant sent a letter to the OPs on 14.04.2014 requesting them for delivering the possession of the flat.

On 01.12.2015 a tripartite meeting was arranged by Consumer Affairs Deptt. at Burdwan for amicable settlement. However it did not materialise and the complainant filed a complaint case before DCDRC Burdwan. However, the complaint was dismissed by the trial court on grounds of pecuniary jurisdiction. The order dt. 20.09.2016 gave a liberty to the complainant to file his complaint before the appropriate authority. Thereafter, the complainant filed CC/225/2017 before this Commission.

Notices were issued upon and the OPs appeared and filed W.V. Later they prayed for their W,V being treated as their evidence. The evidence of the complainant was not challenged by the OPs. In the W.V of the OPs they have stated that Rs. 72,343/- is the service tax paid by the consumer and actual consideration paid by him is Rs. 24,34,110/-.  Therefore, the outstanding dues of the complainant is Rs. 3,53,290/-.

The complainant has submitted that due to delay in delivery of possession of the said flat the complainant had to hire an alternative accommodation paying a  rent of Rs. 8000/- per month from March, 2014. The case of the defense is that although the complainant paid Rs. 25,06,453/- the service tax applicable is 3.09 % amounting to Rs. 72,343/-. Hence, the complainant have paid actual consideration of Rs. 24,34,110/- towards consideration of the schedule flat. In terms of the agreement dt. 25.10.2011 the outstanding amount payable by complainant is Rs. 3,53,290/- + service tax on the balance amount. The OPs have argued that unless the balance consideration is paid to them the flat cannot be delivered and registered in favour of the complainant. The OPs have also cited delay in plan sanction by ADDA in their defense.

On consideration of the documents filed by the complainant, the W.V of the OPs and with due regard to the oral submission of the Ld. Counsels of both sides it is seen that the OPs are deficient in delivery of the scheduled flat to the complainant within the stipulated time. They did not give any written intimation to the complainants regarding handing over the possession of the flat. Thus they have been unfair and negligent in terms of C.P. Act, 1986.

The Ld. Counsel of the complainant has cited a decision of the Hon’ble NCDRC vide2018 (1) C.P.J. 320: 2018 (1) C.P.R. 203 wherein the Hon’ble NCDRC observed : “Upon receipt of said payments from complainant, OP Developer shall ensure that possession of property in question is duly delivered to complainant after observing all formalities, including providing a copy of completion certificate, etc. – Conveyance deed for said flat shall also be executed thereafter, within a period of four weeks from delivery of possession.”

With due regard to the documents, oral submissions and citation of judgment of NCDRC, CC/225/2017 succeeds on contest.

Ordered

(1) Opposite Parties are jointly and severally directed to handover possession of flat and car park as per the schedule, within 4 weeks from this order.

(2) Complainant to pay to Opposite Parties balance consideration of Rs. 3,53,290/-, along with service tax of 3% on this amount within 6 weeks of this order.

(3) Opposite Parties are jointly and severally directed to execute and register the scheduled flat and car park within 8 weeks of this order.

(4) Opposite Parties are jointly and severally directed to handover completion certificate within 8 weeks of this order.

(5) Opposite Parties are jointly and severally directed to pay compensation of Rs. 2,00,000/- for harassment and litigation cost of Rs. 20,000/- within 6 weeks of this order.

CC/225/2017 is allowed and disposed of accordingly.

Free plain copy be delivered to all parties.