The main legal point established in the judgment is the liability of the Developer/Builder for deficiency in services and unfair trade practice under the Consumer Protection Act, 1986, based on the terms of the agreement and the failure to deliver possession as per the agreed timeline.

ORDER :

Samaresh Prasad Chowdhury, Presiding Member—The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of a couple/intending purchaser against the Developer/Builder on the allegation of deficiency in services on the part of them in respect of a flat and car parking space in a dispute of housing construction.

2. Succinctly put, the complainants’ case is that on 19.7.2007 they had entered into an Agreement for Sale with the Opposite Party to purchase of an apartment being numbered 1402 on the 13th floor, Tower No. 9 having a super built-up area of 1,475 sq. ft more or less in the complex of ‘Cascades’ in Uniworld City, New Town, Kolkata along with one covered car parking space and proportionate undivided share in the common areas at a total consideration of Rs. 50,03,625 .The complainants have stated that they have already paid total sum of Rs. 47,39,371 to the O.P. adhering strictly to the terms and conditions of the agreement. The opposite party was under obligation to deliver possession by 30.6.2010 but they failed to keep their promise. The complainants time and again requested the O.P. to deliver possession, but all their requests and persuasions including legal notices went in vain. Hence, the complainants have lodged the complaint with prayer for following reliefs, viz.—(a) to admit the complaint; (b) to issue show cause notice upon the Opposite Party named in the complaint; (c) to direct the O.Ps. to complete construction and hand over the possession of the flat on the 13th floor, Tower the No. 9, measuring approximately 1,475 sq. ft. in the complex ‘Cascades’ in the Uniworld City, Kolkata, West Bengal; (d) O.P. be directed to execute and register a Deed of Conveyance transferring the title of the aforesaid flat in favour of the complainants; (e) interest @ 12% on the Rs. 47,39,371 from 1st July, 2010 to 31st January, 2016 i.e. Rs. 31,75,378 round about Rs. 31,75,000; (f) pay compensation for mental agony and physical harassment assessed at Rs. 2,00,000; (g) pay litigation cost of Rs. 1,00,000 and to pass any such further direction and/or directions order and/or orders, as the Hon’ble Commission may deem fit and proper in the matter.

3. The opposite party by filing a written version has admitted the existence of agreement between the parties in respect of property in question and also admitted the factum of payment of Rs. 47,39,371 by the complainants but it has been stated that they are ready and willing to complete the project and perform its obligation in terms of the agreement and in this regard they will pay compensation to the purchaser @ Rs. 5 per sq. ft. per month for the period of delay in offering the delivery of the same and the period indicated in the agreement. The opposite party has also stated that they are willing to give to the complainants an option of swap in apartment where possession of such apartment may be made available at an earlier date with nearly some specification and, therefore, the complaint should be dismissed with costs.

4. Both the parties have tendered evidence on affidavit. They have also given reply against questionnaire set forth by their adversaries. At the time of final hearing both the parties have also filed brief notes of arguments in support of their respective cases.

5. Having heard the learned Advocates appearing for the respective parties and on perusal of pleadings and the evidence available on the record, it emerges that on 19.7.2007 the complainants had entered into an agreement with Bengal Unitech Universal Infrastructure Pvt. Ltd. (O.P.) to purchase of an apartment being numbered 1402 on the 13th Floor, Tower No. 9 having a super built-up area of 1,475 sq. ft. approximately along with one car parking space and proportionate undivided share in the common areas in the complex of O.P. being ‘Cascades’ in Uniworld City, New Town, Kolkata at a total consideration of Rs. 50,03,625. It is not in dispute that as pe