FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
This is an application u/s.35 of the C.P. Act, 2019.
The brief facts as set out in the complaint are that the OP-1 being the owner of Premises No. 4/1R/1B, Abhiash Chowdhury Lane, PS-Topsia, Kolkata-700046 entrusted OP-2/Developer to develop her land measuring about 01 cottah 03 chittaks 04 sq. ft. under KMC Ward No. 59 for construction of G+3 storied Building as per sanction building plan. Complainant had entered into an Agreement for Sale dated 31.12.2017 with the OP-2 Developer for purchasing a flat measuring about 504 sq. ft. super built up area on the ground floor of the proposed building at a total consideration of Rs. 12,60,000/-. Complainant paid Rs. 11,35,000/- to the OP-2 Developer out of total consideration on different dates against proper receipts. OP-2 delivered possession of the subject flat to the complainant incomplete condition with an assurance to complete the flat in habitable condition within a short span. OP-2 has failed to meet his commitment and also failed to provide service. Having no other alternative, complainant had to complete the subject flat in habitable condition and also incurred Rs. 1,28,500/-. OP-2 also failed to execute and register Deed of Conveyance of the subject flat despite several request. Notice dated 01.06.2021 was sent to the OP-2 but of no consequence. Alleging deficiency in service and unfair trade practices on the part of the OP-2/ Developer, the complainant has prayed for relief as sought for in the complaint petition.
OPs were duly served of the complaint. Despite service of notices upon them, no WV is filed. Thus, the case has proceeded ex parte against both the OPs.
In support of his claim, the complainant tendered evidence and also relied Agreement for Sale dated 31.12.2017, Notice dated 01.06.2021 and Track Report of India Post. We have heard argument on merit and have also perused the record.
Complainant Sri Raj Kumar Shaw made allegation that despite payment of Rs. 11,35,000/- towards a major part of the Sale Consideration the OP-2 Developer miserably failed to execute and register Deed of Conveyance of the subject flat booked by him. Physical Possession of the flat was handed over to him without any flooring, plastering, fittings of windows, sanitary, plumbing line etc. Complainant was compelled to complete the subject flat at his own cost by incurring Rs. 1,28,500/-.
On bare perusal of the record, we find that the complainant entered into an Agreement for Sale dated 31.12.2017 with the OP-2 /Developer in respect of the subject flat measuring about 504 sq. ft. super built up area on the ground floor of the building from the allocation of the Developer at a total consideration of Rs. 12,60,000/- and paid a major part of sale consideration. Possession of the flat was handed over inhabitable condition. Complainant alleges that he incurred Rs. 1,28,000/- to complete the flat in habitable condition. Complainant failed to produce any single document to establish that he incurred Rs. 1,28,500/- for flooring, plastering, fittings of windows, sanitary, plumbing line etc. from his own pocket for the subject flat. Thus, the complainant is not entitled to adjust Rs. 1,28,500/- from the balance Sale Price of the flat.
It is true that OP-2 handed over physical possession of the subject flat to the complainant but did not execute and register Deed of Conveyance on receiving balance consideration amount. There is absolutely no evidence on the part of the OP-2/ Developer to rebut the allegations of the complainant. As per Agreement for Sale, the OP-2 is liable to sell the subject flat from his allocation to the complainant. Thus, the OP-2 fails to fulfill his commitment. Therefore, we have no hesitation in concluding that OP-2/ Developer has committed deficiency in service and as also has indulged unfair trade practice. OP-1 being the owner has only liability to execute and register Deed of Conveyance in favour of the complainant in terms of clause-4 of the Agreement for Sale with the OP-2/Developer.
In view of the above discussion, the present consumer complaint is allowed ex parte in part against the OPs with the following directions:-
- Complainant is hereby directed to pay balance consideration amount of Rs. 1,25,000/- (Rupees one lac twenty five thousand) only to the OP-2/Developer and thereafter both the OPs being owner & Developer are directed to execute and register Deed of Conveyance of the subject flat fully described in the schedule of the consumer complaint in favour of the complainant.
- OP-2/ Developer is also directed to pay compensation of Rs. 50,000/- (Rupees fifty thousand) only on account of deficiency in service, harassment and mental agony suffered by the complainant by the acts of the Developer along Rs. 15,000/- (Rupees fifteen thousand) only with litigation expenses.
- The aforesaid directions shall be complied within a period 08 weeks from today failing which the amount of compensation shall carry interest at the rate of 15 percent p.a. till its realization. It is also made clear that for non-compliance, the provisions enshrined under section 72 of the consumer protection act, 2019 would also be attracted.
Copy of the judgment be provided to the parties as mandated by the CP Act. The judgment be uploaded forthwith on the website of this commission for perusal of the parties.
