IMPORTANT POINT
Deficiency in Service – Deficiency in service is manifest as possession has not been offered by the respondents despite payment of nearly 90% of the consideration agreed upon between the parties.

ORDER

Subhash Chandra, Presiding Member—The present appeal under section 21 (b) of the Consumer Protection Act, 1986 (in short, ‘the Act’) read with Regulation 14 of the Consumer Protection Regulations 2015, assails order in Complaint no. 328 of 2015 on 02.11.2017 passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (in short, ‘the State Commission) in allowing the complaint and directing the opposite parties jointly and severally directed to deliver the possession and to execute the deed of conveyance in respect of the flat and the car parking space as mentioned in the schedule of the agreements for sale in favour of the complainant within 60 days from the date of the order subject to payment of balance consideration amount.

2. The brief facts of the case are that the appellant had filed a complaint before the State Commission against the Developer (respondent no.1) and Land Owners (respondent nos. 2 to 7) alleging deficiency in service in the construction and transfer of flat after receipt of the requisite payment of consideration. The appellant states that on 24.03.2013 he entered into two Agreements for Sale (in short, ‘the Agreements’) with the respondents for the purchase of a flat measuring about 650 sq ft super built up area on the 2nd floor and one car parking space of 120 sq ft on the ground floor in a four storied building situated at 12/1A, Centre Sinthee Road, P K Sinthee, Kolkata, 700 050 Ward no.2 of Kolkata Municipal Corporation for a total consideration of Rs.24,05,000/- and Rs.4,00,000/- respectively, totaling to Rs.28,05,000/- The appellant alleges that he had paid a total sum of Rs.25,25,000/- as part consideration (Rs.25 lakh for the flat and Car Parking and Rs.25,000/- for a separate electric meter) and that Rs.3,05,000/- was due to be paid at the time of delivery of possession or registration of the sale deed. The appellant claimed that the respondents were under obligation to hand over the subject property in a habitable condition within 18 months from the date of Agreements but failed to do so. The appellant submitted that he was ready to pay the balance amount of Rs.3,05,000/- but the respondents have been dishonest in fulfilling their terms of the contract. Hence, the appellant was constrained to approach the State Commission on 26.08.2015 in Complaint no. 328 of 2015. However, aggrieved by the impugned order of the State Commission, the appellant has prayed before us to:

a. Admit the instant First Appeal;

b. Call for the records of the CC no. 328 of 2015 before the State Commission disposed of on 02.11.2017 and to issue notice to show cause to the respondent as to why this First Appeal not be allowed and after the causes shown and after hearing the parties to allow the appeal on the reliefs claimed herein;

c. To award interest in favour of the appellant in terms of Clause 7 of the agreement for sale dated 24.03.2013 with the ready flat and car parking for use;

d. Alternatively some interest amount for the loss for mental agony of the appellant;

e. Any other reliefs as may be applicable for the appellant against respondent no.1/developer and respondent nos 2 to 7 for serious default;

f. Cost, litigation charge penalty rate of interest and expenses also to be enhanced against respondent nos.2 to 7 and to enhance against respondent no.1; and

g. Such other or further relief/s as may be thought fit and proper.

3. The case was contested by the respondent landowners’ nos.2, 4, 7 and 8, before the State Commission. However, respondent no.1 did not appear despite service of notice. The appellant filed his evidence by way of affidavit and also reply against the questionnaire set by respondent nos. 2, 4, 7 and 8. Respondent no.4 filed his evidence by way of affidavit. The appellant submits that the respondent had replied to the questions forwarded by the appellant. It has been mentioned that none of the respondents had disputed the case of the appellant as per agreement