FINAL ORDER/JUDGEMENT

Smt. SAHANA AHMED BASU, Member,

The Case of the Complainants, I a nutshell, is that, the Complainants had booked a 2BHK Flat of 903 Sq.ft (super built up) on 21/12/2014 at a total consideration of Rs.36,81,735/- with the OP and subsequently entered into an Agreement for Sale with possession date in October 2017. The Complainants have paid an amount of Rs.34,47,639/- to the Op clearing up to 11 instalments out of 12 instalments as per payment schedule including Legal Charges of Rs.10,000/-. 12^th instalment was to be payment in October, 2017 on possession of the said flat as per payment schedule. But in August, 2018 the Op demanded the 12^th instalment without enclosing possession letter and completion certificate. Therefore the Complainants sent letters dated 27/08/20118 and dated04/09/2018 to the OP stating that had the OP given the possession with KMC Certificate I October 2017, the Complainants would have saved Rs.2,59,536/- and also requested the OP to give Rs.23,568/- per month from September 2018 onwards as long as OP is not getting completion certificate and to provide a copy of KMC certificate along with possession letter so that the last instalment with other miscellaneous money can be paid. But the OP has denied completion certificate and possession letter by various baseless, unjustified and false claims which are not in line with the said agreement by letter dated 27/09/2018. Claims made by the OP were denied by the Complainants by letter dated 05/10/2018 and dated11/10/2018 stating that OP has tried to divert attention from the main issue. By letter dated 27/09/2018 the OP has made false claim that the Complainants were given information regarding the completion certificate but the Complainants were not at all aware of the same. The Complainants vide letter dated 05/10/2018 and 11/10/2018 made it clear to the OP that Completion Certificate with possession letter is mandatory for taking possession and payment of last instalment otherwise the Op has to return the entire deposited amount with interest. Till date the Op neither given the possession letter and Completion Certificate, nor refunded the deposited amount. As such the Complainants have no other option but to file this case before this Commission.

Upon service of notice OP contested the case by filing WV contending inter alia that the Complaint Petition is bad, vexatious, misconceived, and unsustainable in law and on facts and as such the same is liable to be dismissed. Specific case of the Op is that by an Agreement for sale dated 30/01/2015 the Complainants had agreed to purchase one residential flat being No. 9B in Block 1 of the project Symphony Towers at 278, ho Chi Minh Sarani, P.S.–Behala, Kolkata – 700071.  As per the payment schedule of the Agreement the OP sent demand letters for releasing of payment time to time and the OP informed the Complainants vide letter dated 10/10/2017To obtain the Completion Certificate and request to take possession. Again on 18/08/2018 the OP sent a letter demanding further payment as per Clause 18 of Agreement for Sale. Thereafter vide letter dated 27/09/2018 the OP requested the Complainant to make all payments and take possession. But instead of taking possession the Complainants kept demanding Rs.26,568/- per month from the OP. Since the Complainants failed to make payments and take possession the OP was forced to cancel the booking vide letter dated 03/01/2019 and agreed to refund the paid money after deducting the statutory amount as stated in the Agreement for Sale. Therefore, there is no deficiency in service on the part of the OP and the instant Complaint Petition is liable to be dismissed.

To prove their case both parties have adduced evidence on affidavit. They have also filed questionnaires and replies vis-à-vis relevant documents in support of their respective cases. We have also examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

Admitted fact is that the Complainants have booked a residential flat being No. 9B in Block 1 of the Symphony Towers at 278, Ho Chi Minh Sarani, P.S. Behala, Kolkata – 700071, along with a car parking space.It is also admitted that the Complainantshave booked the said flat by paying Rs.34,47,639/-out of total consideration amount of  Rs.36,81,735/-upto11 installments out of 12 installments as per Agreement for sale dated 30/01/2015. The Complainants alleged that the OP had to demand the last installment i.e. 12^th installment on possession of the flat in October, 2017, but the OP demanded the same on 18/8/2018 without enclosing Possession Letter and Completion Certificate. Controverting this submission Ld. Advocatefor the OP argued that the OP informed the Complainants about obtaining Completion Certificate and requested them to take Possession of the said flat. On perusal of the record it is found that a letter has been issued by the OP on 10/10/2017 to the Complainant informing that Completion Certificate has been obtained from KMC by the OP as well as requested them to take possession of the said flat. It is also submitted by the Ld. Advocate for the OP that said letter was issued to all purchaser and Xerox copy of the Completion Certificate is well displayed on the notice board of the said project premises. Photocopy of the letter dated 18/08/2018 reveals that the OP issued invoices regarding the balance payments to the Complainants. It is also submitted by the OP that instead of paying balance considerations the Complainant kept demanding Rs.26,568/- per month which they have to pay as rent for temporary accommodation for the alleged delay on the part of the OP. Photocopies of the letter dated 27/08/2018, 04/09/2018, 05/10/2018 and 11/10/2018 issued by the Complainants to the OP support this submission. In reply vide letters dated 27/09/2018 and 10/11/2018 the OP expressed their willingness to deliver the Possession of the said flat, hand over the Completion Certificate and to execute the Deed of Conveyance in favour of the Complainants. It is also submitted by the Ld. Advocate for the OP that vide letter dated 03/01/2019 the OP cancelled Agreement for Sale dated 30/01/2015 in respect of the said flat and car parking space for breaching ofthe said Agreement and was ready to refund the deposited amount deducting the statutory charges as per Agreement for Sale dated 30/01/2015. Photocopy of the said letter is furnished by the OP.

Under such circumstances, we are of the opinion that the flat in question was completed by the OP and they were ready to discharge their responsibility to the Complainants.The Complainantswere stubborn in their claims to get Rs.26,568/- per month from September, 2018 onwards from the OP along with a copy of Completion Certificate and Possession Letter. During the Hearing of Argument the Complainant No.1 has submitted the same before this Commission. Somehow the Complainants are in a mindset that as they are Complainant that’s why they can get undue advantage. The Consumer Protection Act is enacted to protect the Consumers from unfair trade practice and deficiency in service on the part of the trader, manufacturer, seller and service provider. But that does not mean that a Complainant can exploit the Act by making an unjustified demand.

Based on the above discussion the Complaint Petition is allowed on contest in part without any cost with a direction to the OP to refund the deposited amount of Rs.34,47,639/- to the Complainant for the ends of justice within 30 days from the date of passing of this order.

Liberty be given to the complainant to put the order in execution, if the OP transgress to comply the order.

Copy of the Judgment be given to the parties as per rules