FINAL ORDER/JUDGEMENT

Smt. SAHANA AHMED BASU, Member,

Brief facts of the case, is that, Shaikh Ali Akbar and his wife Arzoo Parveen is the Consumer in this instant case and the Petitioner has filed this case in his representative capacity on behalf of the Consumers as both of them have to leave Kolkata for abroad temporarily for which they have executed the Power of Attorney in favour of the Petitioner. The case of the Petitioner is that, OP has entered into a Booking Agreement with the Shaikh Ali Akbar and Arzoo Parveen on 01/04/2016 in respect of a flat measuring about 750 sq.ft more or less including 20% of super built up area on the 5^th Floor at Premises No. 3, Mohammmedan Burial Ground Lane, P.S. – Ekbalpore, Kolkata – 700023 for a total consideration of Rs.32,62,500/- . Arzoo Parveen was a bonafide tenant in respect of one room measuring about 256.55 sq.ft situated on the 1^st Floor of the same premises. In the Booking Agreement dated 01/04/2016 OP is also agreed to transfer the ownership of the existing 253 sq.ft rented area of Arzoo Parveen @ Rs.780/- per sq.ft to the Complainants and it was also decided between the parties that calculated amount of consideration money for the said area will be paid at the time of flat registration.Another Agreement was executed between the Arzoo Parveen and the OP on 10/02/2017 wherein the OP agreed to pay an amount of Rs.6000/- per month to the Complainants which would start from April 2017 for rehabilitation of Complainants during construction work till restoration of her possession in the newly constructed building and repossession of Arzoo Parveen as tenant in respect of her previous tenanted portion together with other facilities. OP assured the Complainants that the construction of said G+4 building will be completed within 30 months from the date of signing the Booking Agreement dated 01/04/2016 and possession will be delivered on 01/10/2018. As per Terms and Conditions of the Booking Agreement dated 01/04/2016 Complainants paid Rs.16,31,250/- on 01/04/2016 and 10/10/2016. In spite of receiving the 50% of total consideration OP miserably failed and neglected to star the construction work on the said premises and did not pay a single farthing in respect of shifting consideration of Rs.6000/- per month to the Complainants till date. Despite several reminders by the Complainants the OP failed assure the Complainants regarding the completion of the building in question. Moreover OP had approached the Complainants with one revised Booking Agreement dated 04/03/2022. Being frustrated by the act of the OP the Complainants sent a Legal Notice to the OP which remains unanswered. Finding No other option the Complainants have compelled to file this case before this Commission seeking relief/reliefs.

Upon service of notice OP did not appear before the Commission to defend themselves and no WV is filed on behalf of them within stipulated period. Thus the case runs ex parte against them.

            Ld. Advocate for the Petitioner has tendered evidence supported by affidavit. We have gone thoroughly evidence adduced by the Petitioner including documents on record and gave careful consideration to the arguments advanced by the Ld. Advocate for the Petitioner.

Evidently a Booking Agreement dated 01/04/2016 and an Agreement for Shifting Money dated 10/02/2017 were executed between the parties. As per the Booking Agreement dated 01/04/2016 total consideration of the said flat measuring about 750 sq.ft including 20% of super built up area is Rs.32,62,500/- and as per Agreement for Shifting Money OP has agreed to pay Rs.6000/- on Monthly basis to the Complainants which was to start from April 2017 for rehabilitation during construction work till restoration of her possession in the newly constructed buildingand it was also undertaken by the OP that after completion of the building in dispute the Complainants will repossessed her tenanted portion measuring about 256.55 sq.ft of carpet area as tenant with facilities of common user of water connection, bath and privy in the said premises. On perusal of the documents on record furnished by the Petitioner it is found that an amount of Rs.6,52,500/- and Rs.9,78,750/- were paid on 01/04/2016 and 11/10/2016 respectively by the Complainants and the OP issued Money Receipts against said payments.Photocopy of the Legal Notice dated 09/09/2019 furnished by the Petitioner also reveals that the Complainants asked the OP to complete the flat in dispute and expressed their willingness to pay the balance consideration. Ld. Advocate for the Petitioner alleged that neither the OP completed the construction work on the said premises nor replied the Legal Notice dated 09/09/2019 sent through the Ld. Counsel of the Complainants.

It is true that in terms of the Booking Agreement OP is bound to handover a flat measuring 750 sq.ft. to the Complainant at the abovementioned premises. In spite of Booking Agreement OP has failed to handover the possession of the flat in question. Due to non-delivery of the possession of the said flat OP demonstrated a gesture of deficiency in service and indulged in unfair trade practice.

Ld. Advocate for the Petitioner corroborates his case by adducing evidence on affidavit as well as by producing documents. Despite given several opportunities, the OPs did not file their WV to deny the allegations made by the complainant. Thus, the evidence of the Petitioner remains unchallenged and uncontroverted.  In absence of any contrary and controverting materials on record and having regard to the documents on record we can safely state that that on failure to file WV by the OP tantamount to admission of the allegations stated in the Complaint Petition. As such, the Petitioner is entitled to get reliefs.

Based on the abovementioned discussion the Complaint Petition is allowed on contest against the OP with following directions:

1. OPs is directed to hand over the said flat to the Complainant within 30 days from the passing of this order failing which OP has to refund the deposited amount of Rs.16,31,250/- within 30 days thereafter to the Complainant.

2. OPs is also directed to pay an amount of Rs.6000/- per month as per Agreement for Shifting Money from April 2017 to date of passing of this order to the Complainant within 60 days from the date of passing this order.

3. Further OPs is directed to pay an amount of Rs.25000/- to the complainant for causing harassment and mental agony within 60 days from the date of passing this order.    

4. Aforesaid payment should be made within stipulated failing which the deposited amount shall attract the interest @12% p.a.  

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

Copy of the Judgement be supplied to the parties as per rules.

Judgement be uploaded on the website of this Commission forthwith for perusal of the parties.