Presented by:

Minakshi Chakraborty,  Presiding Member

BRIEF FACTS OF THE CASE :

This instant case has been filed by the complainants under section 35 of the Consumer Protection Act 2019. As per submission of the complainant, the O.p. is the developer of the property in dispute. The O.p. proposed to sell of property being a residential flat no.4E, Block – 2 measuring about 911 Sq.ft more or less super built up are on the 4^th floor of the building consisting of 3 bed rooms 1 living-cum-dining room 2 bathroom-cum-privy, 1 kitchen and 1 balcony situated at RS and LR Dag No.46, 47 and 48 corresponding to L.R. Dag No.47, 48 and 49 in Mouza Dakshin Jhapardaha, JL No.15, P.S. Domjur, District-Howrah and the complainant agreed to purchase the same, one registered Agreement for Sale was executed in between the parties on 06/12/2021 and the total consideration amount was fixed at Rs.21,75,000/-. As per submission of the complainant, he has already paid Rs.11,01,000/- as advance alongwith Rs.80,000/- for registration charge including other expenses by issuing different cheques in favour of the O.p. on different dates and the O.p. acknowledged the same and issued receipts to that effect in favour of the complainant.

As per submission of the complainant, the O.p. agreed to complete the construction and make the property in good and habitable condition and moreover, agreed to handover the complete possession of said flat in question within 30/01/2022. In spite of the stipulated period for delivery of possession of flat has already been over the O.p. did not handover the possession of the said flat in question to the complainant till date. As per submission of the complainant, on several occasion, the complainant is requested the O.p. to deliver the relevant documents regarding the said flat and also requested to handover the peaceful possession of the said flat to the complainant all are in vain. Accordingly to the complainant on several occasion complainant wanted to pay the rest consideration amount to the O.p. but the O.p. did not receive the same nor shown any interest to handover the vacant peaceful flat to the complainant. Having no other alternative on 01/09/2023 complainant sent one demand notice through his Ld. Advocate to the O.p. which is duly received by the O.p. but the O.p. did not feel it necessary to reply the same nor they have shown any interest to repay the amount that has been paid by the complainant as part consideration.

Being aggrieved by the acts and conducts of the O.p. the complainant pray for an order directing the O.p. to repay the amount of Rs.11,81,000/- alongwith 10% interest with a further direction to the O.p. to pay sum of Rs.50,000/- as compensation for unfair trade practice as well non-performance of Agreement for Sale dated 06/12/2021, Rs.2,00,000/- for mental pain, agony and harassment, Rs.2,00,000/- for deficiency in service and Rs.50,000/- for cost of this case.

Evidence on record

The complainant filed evidence on affidavit and written notes of argument which are nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.

Argument highlighted by the complainant side

Complainant has filed separate written notes of argument. As per BNA., evidence on affidavit and written notes of argument shall have to be taken into consideration for disposal of the case.

Heard argument of the complainant side at length. In course of argument ld. Lawyer for the complainant has given emphasis on evidence and documents produced by them.

From the discussion hereinabove, we find the following issues/points for consideration.

Issues/points for consideration

1. Whether the complainant is the consumer?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
3. Whether there is any deficiency of service on the part of the opposite party?
4. Whether the complainant is entitled to get relief?

DECISION WITH REASONS

Issue no.1:

The pertinent question herein lies whether the petitioner is a consumer?

In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2(7) of the Consumer Protection Act, 2019.The point is thus answered in the affirmative.

Issue no.2:

                 The complainant is resident within the district of Howrah and the claims do not exceed the pecuniary limit of this commission. This point is thus disposed of accordingly.

Issue nos. 3 & 4:

Prior to discuss of these two issues let it be made clear that the case is running ex-parte against the O.p. vide order no.4 dated 18/12/2023.

Both the issues are taken up simultaneously for the sake of convenience.

Specific case of the petitioner is that the O.p. is the developer of the property in dispute. The O.p. proposed to sell of property being a residential flat no.4E, Block – 2 measuring about 911 Sq.ft more or less super built up are on the 4^th floor of the building consisting of 3 bed rooms 1 living-cum-dining room 2 bathroom-cum-privy, 1 kitchen and 1 balcony situated at RS and LR Dag No.46, 47 and 48 corresponding to L.R. Dag No.47, 48 and 49 in Mouza Dakshin Jhapardaha, JL No.15, P.S. Domjur, District-Howrah and the complainant agreed to purchase the same, one registered Agreement for Sale was executed in between the parties on 06/12/2021 (photocopy of the Agreement of Sale has been annexed) and the total consideration amount was fixed at Rs.21,75,000/-. The complainant has already paid Rs.11,01,000/- (photocopy of receipts issued by the O.p. have been annexed) as advanced alongwith Rs.80,000/- for registration charge including other expenses by issuing different cheques in favour of the O.p. on different dates and the O.p. acknowledged the same and issued receipts to that effect in favour of the complainant.

As per submission of the complainant, the O.p. agreed to complete the construction and make the property in good and habitable condition and moreover, agreed to handover the complete possession of said flat in question within 30/01/2022 (para no.7.1 page no.14 of Agreement for Sale). In spite of the stipulated period for delivery of possession of flat has already been over the O.p. did not handover the possession of the said flat in question to the complainant till date. As per submission of the complainant, on several occasion, the complainant is requested the O.p. to deliver the relevant documents regarding the said flat and also requested to handover the peaceful possession of the said flat to the complainant all are in vain. Accordingly to the complainant on several occasion complainant wanted to pay the rest consideration amount to the O.p. but the O.p. did not receive the same nor shown any interest to handover the vacant peaceful flat to the complainant. Having no other alternative on 01/09/2023 complainant sent one demand notice through his Ld. Advocate to the O.p. which is duly received by the O.p. but the O.p. did not feel it necessary to reply the same nor they have shown any interest to repay the amount that has been paid by the complainant as part consideration.

In spite of receiving notice, O.p. has not appeared nor the claims made by the complainant are being denied by the O.p. side either by filing any documents or by showing any papers. The act and conduct of the O.p. clearly indicates that there is gross negligence on the part of the O.p. in case of handing over the possession of the said flat in question.

After scrutinizing all the petitions alongwith annexed documents this Commission holds that there is deficiency in service on the part of the O.p. and the complainant is entitled to get the relief.

Both the issues are disposed of.

Hence,            

                                                  O R D E R E D

That the Complaint Case No.231 of 2023 be and the same is decreed ex-parte against the O.p.

The complainant do get refund of Rs.11,81,000/- alongwith interest to the tune of @9% per annum from the date of institution of this case till realization from the O.p. within 45 days from date.

The complainant do further get Rs.50,000/- for mental harassment and agony and Rs.20,000/- towards litigation cost from the O.p. within 45 days from date.

In case, the O.p. does not comply the award passed by this Commission within stipulated period, the complainant is at liberty to take recourse of law.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

The Final Order will be available in the following website The word file is drafted and corrected by me.

(Minakshi Chakraborty)

               Member

D.C.D.R.C., Howrah