FINAL ORDER/JUDGMENT   

SMT. SUKLA SENGUPTA, PRESIDENT

This is an application filed by the complainants U/s 35 of the CP Act,   2019.

            The fact of the case in brief is that the complainants were looking for accommodation and intended to purchase a flat for their residential purpose in a good locality.

They made contact with the OPs and expressed their desire to purchase a flat/unit, in that score they visited the project of the OPs which was running under the name and style IVY Greens lying and situated within the jurisdiction  of Rajarhat-PS,  District- 24 Pgs (N), Chandpur, Gram Panchayat Mouza- Sikharpur, West Bengal  as described  and mentioned  in the schedule-A of petition of complaint.

 Thereafter, the OPs on the basis of desire of the complainants agreed to sell unit No. D4 on fourth floor, in Block No. 1G-06 having  a super built up area of 990 sq. ft. more or less along with one car parking space together with undivided proportionate share in the land of the said block and user rights  in common parts and portion of IVY Greens. The standard specification of which is Part-1, Schedule–iv of the agreement for sale.  Accordingly, the complainants and the OPs have entered into an agreement for sale which was executed on 04.03.2014 under the terms and conditions mentioned in the said agreement.

It is further stated by the complainants  that the OP have represented themselves as the owners/developers and having a good reputation and good will in regard to and in dealings and as such other  was no possibility of the complainants being duped in any manner what so ever.

It is further stated by the complainants that they agreed to purchase the subject flat in the premises in question as mentioned above at a consideration of Rs.  30,71,500/- out of which they paid Rs. 28,81,705/-  to the OPs as part consideration out of total consideration  of Rs.  30,37,500/- only against the valid money receipt issued by the OPs lastly on 01.07.2017 and agreed to handover the khass possession of the subject flat i.e. the said unit No. D4, within 36 months from the effective date of agreement for sale. The xerrox  copy of agreement for sale dated  04.03.2014 is annexed as annexure P-1.  The xerrox  copy of acknowledgment money receipt of Rs. 28,81,705/-  paid by the complainants are  annexed as annexure  P-2 issued by the OPs.

 The complainants  further stated that they paid Rs. 28,81,705/- out of Rs. 30,71,500/- only to the OPs as per schedule iii of the agreement for sale and they requested the OPs to accept the balance consideration amount of Rs.  1,89,795/- and to execute the deed registration  in respect  of subject flat in their favour but the OPs did not response the same. As a result, the complainants are hereby facing problems as the OPs did not execute the deed of registration in respect  of Unit D-4 in faovur of the complainants even on repeated request made by them on receipt of balance amount  of consideration.

It is alleged  by the complainants that  the OPs did not pay any heed to their words then without having any other alternative, the complainants were compelled  to serve a legal notice dated 20.06.2020 upon the OPs which was duly received  by the OPs. The OPs replied  the said legal notice but  they did not execute the deed of registration in respect of  the subject flat in favour  of the complainants. The copy of legal notice dated 20.06.2020 is annexed as annexure P-3.  Such inaction of the OPs caused harassment, mental pain and agony to the complainants which is amounting to deficiency in service on the part of the OPs as the service providers.

Under such circumstances, the complainants compelled to file the petition of complaint before this commission for getting relief with a prayer to give direction to the OPs to complete and or perform registration in respect of said unit No. D-4 on 4^th floor, in Block No. 1G-06 having a super built up area 990 more or less along with one car parking space together with undivided proportionate share in the land underneath, the said block and user right common right and portion of IVY Greens and to deliver the possession of the same to the complainants and also prayed for permanent injunction restraining by the OPs from creating any third party interest in respect of the flat.

The complainants also prayed for compensation to tune of Rs.  10,00,000/-  to the complainants for harassment,  mental pain and agony.

            The OPs 1 to 3 have contested the claim application by filing a WV denying all the materials allegations leveled against them.  It is the case of the contesting OPs that the complainants have/had no cause of action to contest the case and the claim application is premature one. It is also the OPs case that this commission has got no pecuniary as well as territorial jurisdiction to try this case. It is also stated by the OPs that the complainants  are  not a consumer within the ambit  of CP Act,  2019.

            It is admitted by the OPs that the complainants have booked the subject flat but they booked the same for resale purpose which is commercial in nature.  So, the complainants  are not a consumer and the petition of complaint is not tenable before this commission. It is alleged by the OPs that the complainants failed to make payment of consideration money in time in respect of the subject flat for which the agreement for sale has been cancelled.   It is also alleged by the OPs that the petition of complaint is full of incurable defect. Thus, the same is liable to be dismissed. It is further case of contesting OPs that the cause of action of this case arose out of breach of contract which is not a consumer dispute.  The complainants have suppressed the material facts and the delay caused by the OPs due to force-majeure condition because the infrastructure sector throughout India including west Bengal is/was going to very bad period and there was a slow down over all development which has adversely affected the progress of the project. The economics slow down in respect to the infrastructure sector beyond their control for which they could not be held responsible.

The OPs further stated that the delay was also caused due to natural calamities and the progress of project work was affected for continues rain and flood. The flood caused the non-availability of labour in market. Sudden demonetization is also one of the causes of delay of the project.  It is stated by the contesting OPs that there was no deficiency in service on their part and the complainants are not entitled to get any compensation from them. The petition of complaint is baseless and is liable to be dismissed.

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

1. Is the case maintainable in its present form?
2. have the complainants any cause of action to file the case
3. Are the complainants a consumer?
4. Is there any deficiency in service on the part of the OPs?
5. Are the complainants 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 discussions and to avoid unnecessary repetitions.

            On careful perusal of the material on record, it appears that the OPs are running their business in the address situated within territorial jurisdiction of this commission.

This commission has pecuniary jurisdiction up to Rs. 50,00,000/-  and the valuation of the subject matter of this case is well within the pecuniary jurisdiction of this commission.  

            From the material on record,  it is also revealed that the OPs failed to comply the terms and conditions  of the agreement for sale executed in between the parties of this case on the ground of purchasing the subject flat at a total consideration of Rs. 30,71,500/-  out of which the complainants have paid  Rs. 28,81,705/- against proper money receipt for the subject unit No. D4 in the premises in question as mentioned in the schedule- A and B of the petition of complaint.

 It is evident from the material on record that the OPs failed to comply the terms and conditions of the agreement for sale then the complainants served a legal notice dated  20.06.2020 upon the OPs which was duly received by them. So, cause of action arose on  04.03.2014, 20.06.2020  and was continuing  till filing of this case i.e.  on 24.08.2020 from which it is held by this commission that the complainants have sufficient cause of action to file this case and they filed this case well within the period of limitation . Thus, it is held  that the case is well maintainable in eye of law and the complainants have/had sufficient cause of action to file the case.

            It is the complaints case that they intend to purchase the subject flat being unit No. D4 on the 4^th floor, block No 1G-06, having a super built up area of 990 sq. ft more or less along with one car parking space together with undivided propionate share  in the ground floor of the said block and user and right in common parts and portions of IVY Greens under PS-Rajarhat, Dist 24 Pgs  (N), within Chandpur Gram Panchayat, Mouza-Sikharpur at a consideration of Rs. 30,71, 500/- in total.  Both the parties to this case then entered into an agreement  for sale dated 04.03.2014 on payment of Rs. 28,81,705/- as part consideration of the subject flat out of total consideration  of Rs 30,71,500/-. From the money receipt as issued by the OPs on received  of the amount of Rs. 28,81,705/- only on different occasion by cheque paid by the complainants and received by the OPs is proved that the complainants are  consumer and the OPs are the service providers within the ambit of CP Act,  2019.

            Now let us see,  whether the OPs being the service provider to the consumer complainants have/had any deficiency in their service.

            In this regard,  it is alleged by the complainants in their petition of complaint and evidence on record that it was agreed by and between the parties vide agreement for sale dated 04.03.2014 that the complainants will purchase  the subject flat as mentioned   in schedule  B of petition  of complaint as unit No. D4, on the 4^th floor of block No. 1G-06 at IVY Greens as reflected in schedule iii of the general terms and condition of the agreement for sale at a consideration   of Rs.  30,71,500/- in total. The complainants have paid Rs. 28,81,705/- as part payment against the money receipt issued by the OPs  out of Rs. 30,71,500/- total consideration  amount as per agreement for sale.   As per agreement for sale (P-1)  the OPs agreed that they will hand over the possession of the subject flat being Unit No. D4 in the premises in question  within 36 months from the effective date of agreement for  sale i.e. on and from 04.03.2014. On receipt of balance consideration money  and is also executed register deed of conveyance in respect of the subject flat in favour of the complainants  but from the materials as well as evidence on record and also from the admission of the OPs that even on repeated request made by the complainants the OPs did not take any fruitful steps to complete the construction of the subject flat and to handover the possession  of the same after executing the register deed of conveyance in favour of the complainants  on receipt of balance consideration  money i.e. of a sum of Rs. 1,80,000/- only. It is also evident from the materials on record that the complainants for a considerable period requested the OPs to register the deed of conveyance in respect of the subject flat and to handover the possession of the same to them but in vain.

Ultimately, they served legal notice upon the OPs on 20.06.2020 which was duly received by the OPs but they did not take positive steps to that effect so that the complainants will get the possession of the subject flat or get the registered deed of conveyance in their favour which compelled the complainants to file this case before this commission for getting   reliefs. 

The OPs  tried to make a third story by submitting ,  inter alia that the complainants  wanted to  purchase the  subject flat for commercial purpose  and to resale  the same   but  that is  mere allegation  for allegations sake. The OPs failed to prove the same by giving any supportive documents  or evidence. So, the allegations of the OPs in this respect as stated by them in their WV and during the course of argument has no leg to stand upon and is not acceptable to this commission rather the conduct of the OPs established  the fact that they received a sum of Rs. 28,1750/- from the complainants out of the total consideration  of Rs. 30,71,500/-  for the subject flat as per terms  and conditions  of the agreement  for sale dated 04.03.2014 but  till filing of this case i.e.  24.08.2020. They could not be able to perform their part as per terms and conditions  of the agreement for sale dated  04.03.2014 and harassed the complainants  by taking several pleas including force meajure. So, the conduct of the OPs established that definitely there was deficiency in  service  on their part  which caused harassment,  mental pain and agony as well as finical loss to the consumer/complainants and for which they are liable to pay compensation to the complainants and to complete the construction of the subject flat i.e. unit No . D-4, in IVY Greens Project and executed the register deed of conveyance of the subject flat in faovur of the complainants  on receipt of balance consideration.

In view of discussion made above, it is held by this commission that the complainants being the consumers could be able to prove their case against the  OPs service providers beyond all reasonable doubts and are entitled  to get relief as prayed for.

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

The case is properly stamped

Hence,

Order

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

The complainants do get the decree as prayed for.

The OPs are directed to complete the construction of subject flat in IVY Greens project and to execute the registered deed of conveyance  in respect of the said unit No. D4. on the 4^th floor in Block No. 1G-06, having super built up area of 990 sq. ft. more or less, along with one car parking space together  with undivided proportionate share in the land underneath the said block  on receipt of balance consideration   money  and  to hand over the possession of the  same to the complainants  and user right in common part and portion of IVY Greens, under PS-Rajarhat, Dist-24 PGs (N), as per terms and conditions  of the agreement for sale as described  in the schedule B of  petition of complaint within  45 days from this date of order

The OPs are further directed to pay compensation to the complainants of a sum of Rs 30,000/- for harassment, mental pain and agony along with litigation cost of Rs. 5,000/- 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.