FINAL ORDER/JUDGEMENT           

SHRI SWAPAN KUMAR MAHANTY,   PRESIDENT

            Brief facts of the case are that the Mr. Biswanath Dutta, Mr. Sambhu Nath Dutta, Mr. Guru Das Basak, Mrs. Sikha Pal, Mrs. Java Pal Chatterjee and Mr. Priya Darsahan Pal are  the joint owners of a land measuring about 04 cottahs 08 chittaks and 44 sq. ft. more or less situated at KMC premises being No. 9/3/1A, Hatibagan Road (North), Kolkata-700014 who desirous to construct a multi storied building on the said plot of land and the OPs is interested to construct a multi storied building thereon. The owners of the land and OPs had entered into a registered Development Agreement dated 29.09.2014 for construction of G+4 storied building consisting of flats and other saleable spaces, where the land owners will be allotted 50 % of the FAR in the proposed building and the remaining portion will be allocation to the OPs. Subsequently, Power of Attorney dated 29.09.2014 was also executed and registered by the land owners in favour of the OP-2 and 1 Mr. Sandip Basu, since deceased one of the partner of the OP-1. Complainant had entered into an Agreement for Sale dated 30.03.2014 for purchase of a self contained flat measuring about 1170 sq. ft. more or less including 30 % super built up area on the 4^th floor (front side) of the proposed building including one covered car parking space measuring about  135 sq. ft on the ground floor of the said building from the allocation of the OPs. The total consideration of the subject flat and covered garage was Rs. 63,50,000/- . Complainant paid the entire consideration amount of the subject flat and car parking space to the OPs and the OPs executed and registered a deed of conveyance dated 25.09.2017 in favour of the complainant.

            Further case of the complainant is that the OPs delivered possession of the subject flat to the complainant on 14.07.2018 and the covered car parking space has not been given physical possession to the complainant. The OPs additionally charges Rs. 7,62,000/- towards GST without granting proper GST invoice. The OPs did not complete the boundary wall, flooring of the roof, construction of bath for security guards and drivers. Despite several request and reminder the OPs failed and neglected to handover physical possession of the covered car parking space and construction of boundary wall, flooring of the roof, construction of bath for security guards and drivers on the subject building. Thus, the OPs failed to fulfill their commitment. Alleging deficiency in service and unfair trade practice on the part of the OPs, the complainant has filed the present consumer complaint seeking reliefs mentioned in the prayer of the consumer complaint.

            Despite opportunities the OPs, they failed to file their WV within the statutory period as prescribed in the CP Act,  2019.  Thus, the case runs ex parte against the OPs. The OP-2 filed Miscellaneous Application being No. 331/2021 praying for taken off the case from the ex parte board.  Such application was rejected vide order dated 23.03.2022.

In support of his case,  the complainant Rehan Firdausi has tendered evidence supported by an affidavit and also relied documents annexed with the complaint petition. Complainant has also filed written argument. We have heard argument on merit and have also perused the record.

The Ld. Advocate for the complainant argued that there is gross negligence, deficiency in service and unfair trade practice on the part of the OPs as despite payment of full consideration amount the Ops did not handover  the subject covered car parking space including construction of boundary wall, flooring of the roof, bathroom of the security and drivers.  Complainant  requested the OPs to handover physical possession of the  covered car parking space including construction of boundary wall, flooring of the roof, bathroom of the security and drivers. Ld. Advocate for the complainant further submitted that the OPs did not bother to handover physical possession of the subject car parking space and including construction of boundary wall, flooring of the roof, bathroom of the security and drivers which itself a gross violation of law. The OPs did not handover copy of original invoice with regard to deposit of GST of Rs. 7,62,000/- in respect of the flat and garage. Thus, the Ld. Advocate for the complainant has prayed for direction upon the Ops to handover the subject covered car parking space, possession letter of the parking space, copy of original invoice of GST, refund the advance  maintenance charges of Rs. 50,000/- and construction of  unfinished work of the building.

Before explaining the other issues involved in the complaint case, we try to decide whether the instant case falls within the  purview of Consumer Protection Act and there is any gross negligence or deficiency in service on the part of the OPs.

We note that the complainant has  booked a self contained flat  measuring an area of 1170 sq. ft.  more or less  on the 4^th floor (front side )  of the proposed building including one covered car parking space measuring about 135 sq. ft. on the ground floor. The sale price of the subject flat and covered car parking space was Rs 63,50,000/-. On perusal of the photocopies of money receipts and registered deed of conveyance dated 25.09.2017, it is clear that the complainant has already paid total sale price of Rs 63,50,000/- to the OP-1. Thus, the complainant comes within the definition of “Consumer” according to Consumer Protection Act, 2019.

It is true that  the OPs executed and registered a deed of conveyance dated 25.09.2017 in respect of the subject flat and covered car parking space in favour of the complainant. It is not in dispute that the OPs issued possession letter dated 14.07.2018 to the complainant in respect of the subject flat being No. 4A on the fourth floor of the building situated at KMC premises No. 9/3/1A, Hatibagan Road, Kolkta-700014. The OPs did not offer possession of the subject covered car parking space to the complainant despite several request. Even the OPs did not  provide copy of original invoice of GST.  Despite notice dated 16.09.2019 of the complainant, the OPs did not bother to reply the same.  It is true that no WV has been filed by the OPs  though several opportunities were given to them and as such, the allegation stated in the complaint petition remains unchallenged.  Regarding this matter we can safely state that on failure to file WV by the OPs tantamount to admission of the allegations stated in the complaint petition. Demand Notice dated  16.09.2019 clearly reveal that there is continues negligence and deficiency in service on the part of the OPs. It is very unfortunate that the OPs have failed to handover physical possession of the covered car parking space to the complainant in terms of the agreement for sale as well as register of deed of conveyance . It is not our expectation that the complainant by any means suffer from loss of time for the breach of the agreement for sale on the part of the OPs. Under the above facts and circumstances, the gross negligence,  unfair trade practice and deficiency in service on the part of the OPs is well proved and the complainant is entitled to get reliefs in part.

Complainant never filed any application for appointment of Advocate commissioner who ascertain that whether  the OPs did not complete the work of boundary wall, flooring of the roof, construction of bathroom for the security guards and drivers. Thus, we are not inclined to direct the OPs to do all the maintaining works fully mentioned in the para 26 of the complaint petition. 

The Hon’ble Supreme Court in Fortune Infrastructure Vs. Trevor D’ Limba, I  (2018) SLT556-II (2018) CPJ1 (SC)= (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure  Ltd. Vs. Govind Raghavan III (2019) SLT 435=II  (2019) CPJ 34  (SC)=(2019)5 SCC 725, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, III (2019) SLT 631=II (2019) CPJ29 (SC)2019 (6) SCALE 462 and Wg. Cdr. Arifur Rahman Khan Vs. DLF  Southern Homes Pvt. Ltd. VI  (2020) SLT 50=IV  (2020) CPJ 10 (SC)=2020 16 SCC512 held the buyer cannot be made to wait for unlimited period for possession.

Based on the discussion above and the law laid down by the Hon’ble Supreme Court, we are disposed of the consumer case in part ex parte on the following terms:-

1. OPs are directed to handover physical possession of the covered car parking space in terms of the agreement for sale dated 30.03.2014 and the deed of conveyance dated 25.09.2017.
2. OPs are further directed to handover possession letter of the covered car parking space  to the complainant.
3. OPs are also directed to supply a copy of original invoice regarding deposit of GST of Rs. 7,62,000/- in respect of the subject flat and covered car parking space to the complainant.
4. OPs are directed to make payment of Rs.  50,000/- (Rupees fifty thousand)  only as compensation for harassment and mental agony caused to the complainant on account of deficiency in service.
5. OPs are also directed to pay Rs. 10,000/- (Rupees ten thousand) only as cost of litigation to the complainant.
6. Above directions should be complied within a period of 90 days  from the date of this order failing which the complainant may  put the order in execution as per CP Act,  2019.

Thus, consumer case is allowed ex parte against the OPs and disposed of as per above observation.

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.