HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This instant appeal has been filed under section 41 of the Consumer Protection Act, 2019 ( in short, ‘the Act’) passed by the Learned District Consumer Disputes Redressal Commission, Unit- I, Kolkata in connection with consumer case No. CC/293/2021 titled Smt. Itherkana Ghose Vs. M/s. Simoco Systems and Infrastructure Solutions Limited and Ors. The appellant being the complainant filed a complaint case against the opposite parties praying for the following reliefs :-

“i) Direct the Opposite Parties to execute and register the Deed of Conveyance for the said Flat in favour of the Complainant and deliver possession of the said Flat in favour of the Complainant forthwith;

ii) Direct the Opposite Parties to pay Rs.5,00,000/- (Rupees 5 Lakhs) only towards compensation for mental pain and agony;

iii) Direct the Opposite Parties to pay Rs.1,28,450/- as penalty for delayed delivery of the said Flat at Rs.5 per Sq. Ft. Super built-up per month;

iv) Direct the Opposite Parties to pay Rs.2,80,000/- only towards the rent paid by the Complainant up till the date of delivery of possession;

v) Direct the Opposite Parties to pay interest @18% per annum compounded on the monies paid;

vi) Direct the Opposite Parties to pay a sum of Rs.50,000/- (Rupees Fifty Thousand) only as cost of litigation;

vii) Direct the Opposite Parties to pay a sum of Rs.15,00,000/- (Rupees Fifteen Lakhs) only as penal damages;

viii) And to pass such other order or further orders as your Honour may deem fit and proper in the facts and circumstances of the case.”

2. Notice was duly served upon the opposite parties but the opposite parties did not turn up and did not contest the case. As such, the case was heard ex parte against the opposite parties.

3. The Learned District Commission vide order dated 24.11.2021 allowed the complaint and passed the order which is reproduced as under :-

“that the Complaint Case be and the same is allowed ex parte against all the Opposite Parties.

Opposite Parties are directed jointly or severally to execute and register the deed of conveyance of the flat in question in favour of Complainant within 1 (One) month from the date of this order.

Opposite Party are directed to pay jointly or severally compensation of ₹50,000/- (Rupees Fifty Thousand only) for mental pain and agony and litigation cost of ₹20,000/- (Rupees Twenty Thousand only) in favour of Complainant within 1 (One) month from the date of this order.

Liberty given to the Complainant to file Execution Case in case of failure to carry out the above order by the Opposite Parties.

Hence, this complaint case is disposed of accordingly.”

4. Being aggrieved by and dissatisfied with the impugned order the appellant / complainant filed this appeal.

5. I have heard the Learned Advocate appearing for the appellant and also carefully perused the record and the impugned judgment.

6. It is submitted by the Learned Counsel that the appellant is entitled to get the sum of Rs.02,80,000/- (Rupees two lakh and eighty thousand only) towards rent per annum compounded on the money paid and a sum of Rs.50,000/- (Rupees fifty thousand only) as costs and further a sum of Rs.1,50,000/- (Rupees one lakh and fifty thousand only) as penal damage. The Learned District Commission has failed to pass an order with regard to such rent.

7. It is further submitted that the appellant is entitled to get a sum of Rs.1,28,450/- (Rupees one lakh twenty eight thousand four hundred and fifty only) as penalty for delayed delivery of the said flat calculated @ Rs.5/- per sq. ft. super built up area per month till the filing of the complaint case from the opposite parties.

8. It is further submitted that the Learned District Commission below failed to appreciate that the appellant is entitled to get a sum of Rs.5,00,000/- (Rupees five lakh only) as compensation from the respondents.

9. Having heard the Learned Advocate appearing for the parties and on perusal of the record it appears to me that agreement to sale dated 12.06.2015 discloses that if the opposite party fails to hand over the possession of the flat in question to the complainant by the end of the grace period of six months expiring on 26.10.2018 the opposite party shall be liable to pay to the complainant, the compensation to be calculated @5/- per sq. ft. of the super built-up area for every month of delay and thereafter until the actual date of handing over possession of the flat to be fixed by the opposite parties.

10. On consideration of the said agreement to sale and on perusal of the record I think that the complainants is entitled to get Rs.01,28,450/- (Rupees one lakh twenty eight thousand four hundred and fifty only) as penalty for delayed delivery of the said flat @Rs.5/- per sq. ft. super built up per month.

11. I am also of the view that the amount of Rs.50/- (Rupees fifty only) awarded to the complainant towards compensation, I think that this amount is so meager. It would be just and proper if the compensation of Rs.01,00,000/- is awarded to the complainant towards compensation for mental pain and agony. As regards the rent it appears to me that the complainant has prayed for Rs.02,80,000/- (Rupees two lakh and eighty thousand only) towards rent paid by her.

12. On going through the record it appears to me that the complainant has not filed any papers and /or money receipts to show that the complainant has paid Rs.02,80,000/- (Rupees two lakh and eighty thousand only) towards rent by her. Therefore, it may be concluded that the complainant has failed to prove that she has paid Rs.02,80,000/- (Rupees two lakh and eighty thousand only) towards rent.

13. In the result, I hold that the complainant has failed to prove that she has paid Rs.02,80,000/- (Rupees two lakh and eighty thousand only) towards rent. As such, she is not entitled to get any amount from the opposite parties towards rent paid by her.

14. Under this facts and circumstances and on consideration of the materials on record I am of the view that this appeal should be allowed in part and the impugned order should be modified.

15. In the result, the appeal filed by the appellant is allowed in part and the impugned order dated 24.11.2021 passed by the Learned District Commission is modified and the appellant / complainant is also entitled to get Rs.01,28,450/- (Rupees one lakh twenty eight thousand four hundred and fifty only) as penalty for delayed delivery of the said flat at Rs.5/- per sq. ft. super built up per month and she is also entitled to get compensation of Rs.01,00,000/- (Rupees one lakh only) for mental pain and agony in addition to what has been awarded by the impugned order with no order as to costs.

16. The appeal is, thus, disposed of accordingly.

17. The respondents are directed to comply with this order within two months from the passing of this order. In default, the appellant / complainant is at liberty to put the order into execution.