JUDGMENT

Samiksha Bhattacharya, Member—The instant complaint has been directed by the complainants Sk. Asraf Ali and Sraboni Ali under Section 17 (1) (a) (i) of CP Act, 1986, against the OPs alleging deficiency in service.

2. The facts of the case in brief are that the OP No. 1 is the developer/promoter and he is carrying his business in the name and style ‘M/s. Jay Ma Construction’ and the OPs No. 2, 3, 4 are the land-owners. In the year 2010, the complainants entered into an agreement for sale dated 21.05.2010 with the OP No. 1 to purchase a flat on the ground floor measuring about 320 sq. ft. super built up area including proportionate share of land situated at S.P. Plot No. 43, Sahapr Colony, part of premises No. 23 A, Diamond harbor Road, P.S. New Alipore, Kolkata 700053, having its postal address 22/3, Sahapur Colony, Kolkata 700053, which was under construction. The consideration of the flat was fixed at Rs.5,50,000/- and out of which the complainants have already paid a sum of Rs.5,20,000/- to the OP No. 1. The complainants have paid Rs.1,00,000/- on 10.05.2010, Rs.1,00,000/- on 21.05.2010, Rs.50,000/- on 01.06.2010, Rs.50,000/- on 27.08.2010 Rs.50,000/- on 26.08.2011 and Rs.1,70,000/- on 22.03.2013, all by cash. After receiving Rs.5,20,000/- up to 26.08.2011 the OP No. 1 was started to neglect to complete the said flat and to deliver the khas possession of the flat to the complainants. In the meantime, the complainants made several requests to complete the said flat since they were in urgent need of the flat for their residential purpose, but the OP No. 1 did not pay any heed. In the month of April 2013, the complainants personally met with OP No. 1 and requested to complete the said flat as early possible then the OP No. 1 demanded Rs. 1,70,000/0 within the one month to complete the said flat for delivery of possession and otherwise the flat would be sold to third party.

3. Under such situation, the complainants were bound to pay Rs.1,70,000/- on 22.03.2013 and after receiving the said amount OP No. 1 gave a written undertaking in the form of affidavit on 03.04.2013 assuring that the flat would be completed within 15.05.2013 and the possession of the same would be delivered on 20.05.2013. It was also assured by OP No. 1 that within 15 days from the date of handing over the possession of the said flat he would complete the registration process in favour of the complainants and the balance amount of Rs.30,000/- would be paid by the complainant at the time of registration of the flat in question. But as per written undertaking, OP No. 1 neither completed the flat nor took any step to give the possession of the same to the complainants. Then the complainants again met with the OP No. 1 on 20.07.2013 with the request to complete the flat and to give possession of the same. Then the OP No. 1 told the complainants that the flat would be given to the third party with a high rate. Then the complainants sent a demand notice on 25.07.2013 but since there was some typographical mistake complainants sent a demand notice dated 27.07.2013 cancelling the earlier demand notice dated 25.07.2019. The flat in question was constructed on the ground floor which is a garage space as per sanctioned plan and in the front road side three shop rooms were constructed without leaving minimum space as per KMC Act and Kolkata Municipal Rules. On or about 06.10.2014, the OP No. 1 constructed two unauthorized constructions on the top floor violating the terms and conditions as per Para 12 of the agreement for sale dated 21.05.2010. Since all the acts and activities of OP No. 1 suffers from deficiency in service and gross violation of the terms and conditions of the agreement for sale dated 21.05.2010 the complainants are suffering from mental agony and anxiety and therefore they are entitled to get Rs.19,00,000/- as compensation. Hence the petition of complaint praying for direction upon OPs to hand over the peaceful vacant possession of the flat in