Date of filing: 02.08.2018                                                                          Date of disposal: 15.11 .2019

Complainant:              Sumit Sinha, S/o. Sri Kalyan Kumar Sinha, resident of Rabindrapally, Suri, PO: Suri, PS: Suri, District: Birbhum, PIN – 731 101.

- V E R S U S -

Opposite Party:  1.      Bengal Infra Projects Private Limited, represented by its Director, having its office at Vill. & PO: Bamunara, PS: Durgapur, District: Paschim Barddhaman, PIN – 713 212.

                            2.     Tapas Roy, S/o. Srikanta Roy, Director of Bengal Infra Projects Private Limited, having his residence at Vill: & PO: Bamunara, PS: Durgapur, District: Paschim Barddhaman, PIN – 713 212.

Present:

           Hon’ble President: Smt. Jayanti Maitra (Ray).

       Hon’ble Member: Ms. Nivedita Ghosh.

Appeared for the Complainant:                        Ld. Advocate, Suvro Chakraborty.

Appeared for the Opposite Party Nos. 1 & 2: None (ex parte).

J U D G E M E N T

This complaint is filed by the complainant under Section 12 of the C. P. act, 1986 alleging deficiency in service and unfair trade practice against the Ops as the Ops did not give possession of the flat inspite of getting 95% of the payment and also failed to execute Registered Deed of Sale in favour of the complainant.

The case of the complainant in brief is that for purchasing a flat, situated at Mouza Bamunara, J.L. No. 58, Thana Kanksa, Durgapur, Dist: Burdwan contacted with the OPs in the year2013 and also entered into an agreement for sale with the Ops on 25.06.2013 for total consideration amount of Rs. 12, 35,000=00. As per Part III of Fifth schedule of the Agreement for Sale, i.e., payment schedule, the complainant paid Rs. 51,000=00 and thereafter paid 95% of the total consideration amount to the Ops up to 17.12.2015. As per agreement for sale the Ops allotted Flat No. “3C” on the 3^rd Floor at Block 49 Apartment and it is also agreed by the Ops to hand over the possession of the allotted flat within 36 months from the date of agreement, i.e., within 24 June, 2016. As per Clause No. 11.4 of the agreement the complainant is entitled to get compensation from the Ops @12% upon the amount paid by him in case of default to comply the Part III of 5^th Schedule of Agreement by the Ops.

The further case of the complainant is that though 95% payment was made to the Ops but the Ops till 2016 failed to complete the flat within the schedule period. As such complainant several times requested verbally as well as by way of sending mails and letters to the Ops for handing over the possession of the flat but the Ops did not bother to pay any heed to such requests. The complainant also requested the Ops to pay compensation upon the paid amount as per agreement as he compelled to reside at a rented house with his family but the Ops refused to pay the same. Therefore, getting no other alternative, knocked the door of the C.A. Department, Durgapur and thereafter field this instant case.

The complainant further submits that he is bonafide consumer of the Ops and never done any act detrimental to the interest of the Ops. inspite of getting the 95% payment the Ops failed to execute Registered Deed of Sale in favour of the complainant and also failed to hand over possession of the flat. The Ops on the one hand have not completed the flat, agreed to purchase by the complainant till date of filing of this case and on the other hand did not bother to pay any compensation as per agreement. These conducts of the Ops are tantamount to deficiency in service and unfair trade practice and they are liable to compensate the complainant. The complainant prays for directing the Ops to hand over the possession of the agreed flat to the complainant after completion of the same, directing the Ops to Execute and Register the Deed of Sale in favour of the complainant, directing the Ops to pay compensation @12% per annum upon Rs. 11, 68,896=00 from 17.12.2015 till date of realization by holding them liable for their conducts of deficiency in service and unfair service and also directing the Ops to pay a sum of Rs. 3,00,000=00 to the complainant as compensation for mental pain agony and harassment and for Rs. 50,000=00 as litigation cost.

The cause of action arose on and from 24^th June, 2016 when the schedule time of handing over possession comes to an end and thereafter the same is arising on each and every day as the Ops did not hand over the possession till date.

After admission hearing the complaint was admitted and notices were sent to OP Nos. 1& 2 through speed post. Thereafter the complainant filed affidavit of service and postal track report wherefrom it is evident that the summons were received by the Op Nos. 1& 2 but did not appear to contest the case orally or by filing written version. So the case was fixed ex parte against the Ops.

Points for determination:-

1. Whether the complainant is a consumer or not?
2. Whether the complainant is entitled to get relief/reliefs as prayed for?

Decision with reasons:-

Issue No. 1 which is the most vital point for consideration according to C. P. Act as it appears that according to section 12 of the CP Act, 1986 the complainant is duty bound to prove that he is a bonafide consumer under the OP and legally entitled to file claim application against him.

Here in the instant case it appears that the complainant wants to purchase a flat from the Ops who are Bengal Infra Project Pvt. Ltd. represented by its Director Tapas Roy and for that an agreement was executed between the complainant and the Ops on 25.06.2013 where it was settle that total consideration amount of the flat agreed to be purchased by the complainant was Rs. 12,35,000=00 and the complainant should pay Rs. 51,000=00 for the first time i.e. at the time of booking and thereafter should pay further amount as per agreement time to time and after payment of full consideration amount the OP should hand over the possession of the allotted flat within 36 months from the date of agreement and it also appears that the complainant is able to prove that according to agreement he paid the amount of Rs. 51,000=00 for the first time and thereafter paid as per agreement i.e. 95% of the total amount to the OP, by documents and after perusing all the documents it reveals that there is no doubt that the complainant is able to prove that he is a bonafide consumer under the OP by paying total amount of 95% as terms and condition and also able to prove that inspite of payment, OP have not yet hand over the possession of the flat and for that the complainant has been compelled to lodge the claim application.

Accordingly this issue disposed off.

Regarding issue No. 2 that is whether the complainant is entitled to get any relief from the OP as claimed or not?

Now it appears that an agreement was executed in between the complainant and the Ops on 25.06.2013 duly signed by Tapas Roy Director of Bengal Infra Projects Ltd. and Sumit Sinha and his father Kalyan Kumar Sinha for piece and parcel of the unit/flat bearing No. “3C”on the 3^rd floor measuring about an area a little more or less 925 sq. ft. (super built up area) 648 sq. ft. (covered area) together with the proportionate share of land content at and under the said premises and further together with the common areas, benefits amenities facilities and others thereof of the building/buildings named as Block 49 constructed upon the schedule premises, namely, “Topoban City” along with car parking space facilities on condition that the complainant should pay the entire amount i.e., Rs. 12,35,000=00 to the Ops as a price of the flat and after payment the OP should allotted flat No. “3C” on the 3^rd floor, Block No. 49 Apartment within 36 months from the date of the agreement. It was also settled according to agreement that the complainant is entitled to get compensation from the OP @12% p.a. upon the amount paid by the complainant in case of default, i.e. if the OP failed to hand over the possession of the flat to the complainant within time after full payment.

It further appears that as per terms and conditions of the agreement complainant paid Rs. 51,000=00 as booking amount and thereafter paid 95% of total amount for allotted flat No. “3C” Block No. 49 to the Ops and OP also received the said amount from the complainant but failed to hand over the possession of allotted flat to the complainant as per agreement, i.e., within 24^th June, 2016 and it further appears that the Ops failed to complete the flat within scheduled period as per agreement and for that the complainant requested several times to the Ops verbally as well as by sending mails and letters for hand over the possession of the flat but the OP did not pay any heed to the request of the complainant. The complainant also requested Ops to pay compensation amount as the possession of the allotted flat was not hand over within time and as such he compelled to reside at a rental house with his family members but the Ops again refused to accept the proposal of complainant and also did not pay any heed to the request of the complainant.

We have already discussed about the payments for allotted flat and also discussed that the Ops have received the said amount but failed to hand over the possession and did not bother the request of the complainant by giving possession of the flat, on the contrary, the documents as produced by the complainant shows that the OP without hand over the possession of the flat to the complainant asked him that if he wants to change his flat from block 49 to another block then they will hand over the possession of the flat before October, 2017 and further asked if the complainant agreed with the proposal of the OP then should inform in writing to them. This type of attitude of the Ops clearly shows that they are not actually interested to hand over the possession of the allotted flat as per agreement with the complainant after receiving price i.e. 95% of the total consideration amount and for that they have suggested such type of vague proposal to the complainant which is not acceptable according to law, specially when agreement was executed for a flat being Flat No. “3C” on the 3^rd Floor at Block 49 Apartment situated at Mouza Bamunara, JL No. 58 within Police Station Kanksa.

It further appears that there is no dispute that the complainant has not yet paid full amount for the alleged flat but he paid 95% of the total consideration amount to the Ops up to 17.12.2015 but still Ops were remain silent regarding hand over the possession of the flat, which was fixed for hand over on 24^th June, 2016. After that, finding no other alternative he lodged the claim application and it also appears that Ops have received notice but never bother to reply to the complainant even never stated about the money which they have received from the complainant, i.e., whether the same will be refunded with interest as per agreement or complainant will get possession of the said allotted flat after payment of rest of the amount as per agreement. Accordingly such type of behavior of the Ops show that there is deficiency in service and unfair trade practice has done towards complainant. Ld. Advocate for the complainant has filed Xerox copies of judgement passed by Hon’ble National Commission in connection with Appeal No. 2273/2017, C.C. No. 1133 of 2017, C. C. No. 2557 of 2017 and C.C. No. 1132 of 2017 respectively.

We have gone through all the judgements as cited by the Ld. Advocate for the complainant and after that we found that the Ops have failed to hand over the possession of the allotted flat within time and thereafter they told if the complainant wants to change his flat from Block 49 to another Block then they will hand over the possession of the said flat before October, 2017. So, the conducts of the Ops prove that their intention was/is not good and they are also not interested to behave properly with the complainant as per agreement.

So accordingly complainant is able to prove the allegation against the Ops and as such entitled to get relief as prayed for.

Thus this issue disposed off.

Hence, it is

O r d e r e d

that the present Consumer Complaint being No. 122/2018 be and the same is allowed ex parte against the Ops. the Ops are hereby directed either to execute and register the Deed of Sale in favour of the complainant within 30 (thirty) days from the date of passing of this award and thereafter the complainant is directed to make payment of the rest amount to the Ops as per agreement within 15 (fifteen) days from the execution of registered sale deed and the whole process will be completed within 45 (forty five) days from the date of passing of this award and thereafter the Ops will hand over the possession of the agreed flat to the complainant within 45 (forty five) days from the date of making payment of the rest amount by the complainant to the Ops as per agreement and the whole process will be completed within 90 (ninety) days from the date of passing of this award,

or,

to pay entire amount which received from the complainant as price of the allotted flat, i.e., Rs. 11, 68,896=00 (Rs. Eleven lacs sixty eight thousand eight hundred ninety six) only along with interest @12% (twelve per cent) per annum (as agreed rate as per agreement) from 17.12.2015 till the date of realization of the order without fail and further directed to pay a sum of Rs. 10,000=00 (Rs. Ten thousand) only as compensation for mental pain and agony and harassment suffered by the complainant and also to pay Rs. 3,000=00 (Rs. Three thousand) only as litigation cost.

The entire award should be completed within 90 (ninety) days from the date of passing of this award, failing which, the complainant is at liberty to execute the award as per provisions of law.

Let plain copies of this order be supplied to the parties free of cost as per provisions of law.

Dictated & Corrected by me:                                                               (Jayanti Maitra (Ray)

                                                                                                                     President

     (Nivedita Ghosh)                                                                            DCDRF, Purba Bardhaman

          Member

DCDRF, Purba Bardhaman

                                                                 (Nivedita Ghosh)

                                                                        Member

                                                         DCDRF, Purba Bardhaman