ORDER

IA No. 4458 of 2020 (condonation of delay)

This application has been filed for condoning the delay in filing the present Appeal. Not opposed. Application is allowed on payment of cost of Rs.5000/- to the respondent by way of demand draft within 4 weeks.

First Appeal

The present Appeal has been filed against the order dated 16.01.2020 of the State Commission West Bengal.

2. The brief facts of the case are that respondent / complainant ( hereinafter referred to as ‘complainant’) had entered into an agreement to purchase a flat measuring 1015 sq.ft. being flat No. 5-C on the 5th Floor in Block-A together with one open car parking space measuring more or less 120 sq. ft. in G + 12 storied building together with proportionate undivided share of land situated at Municipal holding No.57, Vivekananda Sarani, P.S.Sonarpur, Dist. South 24 Parganas within the local limits of Ward No.26 of Rajpur-Sonarpur Municipality at a total consideration of Rs.41,07,000/- on 27.05.2014. She had stated that she had paid a sum of Rs.40,24,994/- as part consideration. She also obtained a loan from LIC Housing Finance Ltd. and also approached State Bank of India Baruipur Branch for obtaining the loan. As per the agreement, the possession was to be handed over in October 2015 with grace period of 6 months but no offer was made till filing of complaint. Aggrieved, she served a legal notice dated 14.08.2018 and, thereafter, she filed a complaint seeking possession of the flat and also seeking compensation and litigation cost.

3. The appellant appeared before the State Commission but did not file any written statement nor contested the matter and was proceeded ex parte.

4. The complainant filed her testimony by way of an affidavit and also filed documents including the occupancy certificate dated 11.06.2018. She also, thereafter, filed amended complaint whereby she sought measurement of flat to be done as she found that flat was not of the same area as was promised by the opposite party and also sought possession as per the agreement and if the flat is not as per the agreement, sought refund of the money.

5. The State Commission heard the ex parte arguments of the complainant / respondent and held as under:—

Clause 3 of the agreement for sale between the parties relates to committed date of delivery of possession, which is set out below:—

“The possession of the flat would be handed over in the month of October’15. Further there will be a grace period of 6 months. If the possession is not delivered even within the said grace period the purchaser will be eligible for getting banking interest for the delayed number of days starting after the expiry of the grace period subject to the final payment which has to be made within 15 days from the date of intimation of completion is being served.”

From the above, it is quite clear that the OP/developer was under obligation to handover the subject flat to the complainant within October, 2015 and if the grace period of six months is added, the committed date of delivery of possession should have been within month of March, 2016.

Evidently, after completion of construction of the building, developer has obtained Occupancy Certificate from Rajpur-Sonarpur Municipality on 11.06.2018. It signifies that the OP could not deliver the possession within the committed date of delivery of possession which prompted the complainant to lodge the complaint on 05.10.2018. In this regard, all the requests and persuasions including legal notice given by the complainant dated 14.08.2018 turned a deaf ear.

The complainant has specifically alleged that the developer is under obligation to provide her a flat having super built up area of 1015 sq. ft. In this regard, Mrs. Debjani Mitra, Ld. Advocate of the complainant has invited our attention to the report of Valuer appointed by State Bank of India, Baruipur Branch before granting loan in favour of complainant. After inspection of the flat in question, the Valuer of the Bank ha