FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
Brief facts of the case are that the OP-1 is a Partnership firm and OPs 2 and 3 are its partners. They runs construction business and sell flats/units to intend purchasers. OP-4 is the owner of a piece of land measuring about 19 decimals more or less lying and situation at RS Dag No. 464, Rs Khatian No. 512, LR No. 608, LR Khatian No. 3344 within mouza Podrah within the District of Howrah. The OP-4 appointed OP-1 for construction of G+4 storied building over the said plot of land by entering into a registered Development Agreement and also executing a registered Power of Attorney dated 15.03.2016 in favour of the OPs 2 and 3. Complainant interested to purchase a flat being No. 105 on the first floor, Block-B of the proposed building namely “Bonolata Apartment” measuring an area of 1000 sq. ft. more or less including 20 % super build up area fully mentioned in the schedule of the complaint petition. An Agreement for Sale dated 07.12.2016, was executed between the complainant as purchaser and OPs 2 and 3 being the partners of OP-1 firm. The total sale price of the subject flat is Rs. 20,75,000/- and the complainant had already paid Rs. 20,18,000/- to OPs 2 and 3 on several dates against money receipts. Complainant obtained House Building Loan of Rs. 19,92,140/- from SBI, Bakultala Branch, Howrah. In terms of the Agreement for Sale, the OPs are liable to deliver physical possession of the subject flat within December 2017. The OPs 2 to 3 despite receiving payment have failed and neglected to deliver physical possession of the subject flat despite several request. Ultimately, in the month of September, 2019 the OPs 1 to 3 delivered possession of the subject flat incomplete condition and the measurement of the flat is 997 sq. ft. instead of 1000 sq. ft. Complainant incurred a huge amount to do the marble and tiles work and other finishing work of the subject flat. Despite request, the OPs 1 to 3 did not execute and register Deed of Conveyance of the subject flat in favour of the complainant on receiving balance sale price. The OPs 1 to 3 have failed to complete the entire building and finish the common areas and also failed to provide the completion and possession certificates of the building though they have started illegal construction over the roof of the proposed building for their illegal gain and profit. Finding no other alternative, the complainant issued legal notice dated 29.09.2020 to the OPs 1 to 3 with a request to execute and register Deed of Conveyance on receiving balance sale price. The legal notice was unattended. Alleging deficiency in service and unfair trade practice on the part of the OPs the complainant has filed the present complaint seeking reliefs mentioned in the prayer.
Despite service of notices to the OPs, they did not turn up to contest the case by filing WV within the statutory period provide under the CP Act. Thus, the case runs ex parte against the OPs.
Complainant Mustaque Ahmed filed his evidence by way of affidavit in which he has reirritated all the averments taken in the complaint and relied the documents annexed with the complaint petition. We have heard the Ld. Advocate appearing for the complainant and also perused the material available on record.
In course of hearing the Ld. Advocate for the complainant submitted that there is a gross deficiency in service and unfair trade practice on the part of the OPs 1 to 3. Despite receiving a bulk amount of sale price, the OPs 1 to 3 did not execute and register Deed of Conveyance. It is prayed that the consumer complaint should be allowed in terms of the prayer.
We have given our thoughtful consideration to the various pleas raised by the Ld. Advocate of the complainant and find that the OP-4 is the owner of a land measuring about 19 decimals more or less lying at situated at RS Dag No. 464, Rs Khatian No. 512, LR No. 608, LR Khatian No. 3344 within mouza Podrah within the District of Howrah and a Development Agreement was executed and registered between the OP-4 and the OP-1 for construction of a G+4 storied building over the said plot of land. The OP-4/land owner also executed and registered a Power of Attorney dated 15.03.2016 in favour of the OPs 1 and 2. On perusal of the photocopy of Agreement for Sale dated 12.07.2016, it appears that complainant booked a flat being No. 105 on the first floor, Block-B of the proposed building name Bonolata Apartment measuring about 1000 sq. ft. more or less including 20 % of the super build up area. The sale price of the subject flat is Rs. 20,75,000/- and out of such sale price the complainant has already paid Rs.2,18,000/- to the OPs 1 to 3 against money receipts. Ultimately the OPs 1 to 3 delivered physical possession of the subject flat measuring about 997 sq. ft. instead of 1000 sq. ft. incomplete condition. Complainant alleges that he is ready and willing to pay the balance sale price to the OPs 1 to 3 with a request them to execute and register Deed of Conveyance along with completion and possession certificates. The OPs 1 to 3 did not execute and register Deed of Conveyance on receiving balance sale price for which the complainant issued legal notice dated 29.09.2020. Such notice was unattended. The OPs 1 to 3 did not file their WV denying the allegations of the complainant as mentioned in the complaint petition. It is the duty of the OPs 1 to 3 to execute and register Deed of Conveyance in favour of the complainant against receiving balance sale price but in the instant case the OPs 1 to 3 did not perform their obligation in terms of the Agreement for Sale dated 07.12.2016. Complainant cannot be made to wait indefinitely for execution and registration of the Deed of Conveyance. Thus, the Commission has the authority to pass appropriate order in this complaint case.
It is settle law that the complainant being the purchase of the subject flat for residential purpose is a ”Consumer” under the provision of Consumer Protection Act, 2019. We also find both deficiency in service within the meaning of section 2 (11) and unfair trade practice within the meaning of section 2 (47) of the Consumer Protection Act, 2019 to be well and truly evident on the part of the OPs 1 to 3.
There is no independent evidence on the part of the complainant that the OPs 1 to 3 illegally constructing over the roof of the Bonolata Apartment and complete the common portion of the Apartment. Even, the complainant did not file any application for appointment of Advocate Commissioner to ascertain his allegation of illegal construction as well as in complete work of common portion of the Apartment. Therefore, we are not inclined to direct the OPs 1 to 3 to complete unfinished work of common portion of the Apartment.
In view of the above discussion, the present consumer complaint is allowed in part ex parte against the OPs 1 to 3 and dismissed ex parte against the OP-4/land owner without any cost with the following directions:-
- OPs 1 to 3 are directed to execute and register Deed of Conveyance in respect of subject flat being No. 105 on the first floor of Block-B of the building namely Bonolata Apartment measuring about 1000 sq. ft. more or less including 20 % super build up area and undivided proportionate share of land with common area on receiving balance sale price of Rs. 57,000/- in favour of the complainant.
- OPs 1 to 3 are also directed to issue possession and completion certificates of the flat and building to the complainant.
- OPs 1 to 3 are directed to pay Rs. 25,000/- only as compensation to the complainant for his mental agony and harassment.
- OPs 1 to 3 are further directed to pay Rs. 10,000/- only to the complainant towards litigation cost.
The aforesaid directions shall be complied with within a period of 90 days from today and the complainant shall pay the balance sale price of Rs. 57,000/- to the OPs 1 to 3 within 60 days from today, failing which the amount of compensation shall carry interest @ 7 % P.A. till its realization.
Copy of the judgment be supplied to the parties as per CP Act. Judgment be uploaded on the website of this Commission forthwith for perusal of the parties.
