IMPORTANT POINT
Possession of flat – Sale agreement executed – Non-payment of part of sale price would not affect validity of sale.

ORDER

Rohit Kumar Singh, Member—The present appeal has been filed under Section 51 of the Consumer Protection Act, 2019, arising out of the final Judgment and Order dated 16.08.2019 passed by the State Consumer Disputes Redressal Commission, West Bengal in Complaint Case No.287 of 2017 wherein the State Commission allowed the Complaint

against Opposite Party No.1 and 2 (Appellants herein).

2. Brief facts of the case are as follows: The Respondents/Original Complainant Nos. 1 and 2 in need of a residential accommodation entered into and executed an “agreement of sale” dated 07.09.2014 for purchase of a flat. The respondents purchased Flat No.A on the 1st floor in a G+3 storied building situated at premises No.44/C, Mahendra Chandra Garden Road, P.S. Dum, Kolkata-700030. The respondents got possession of the flat after the execution of conveyance deed dated 03.02.2017. They asserted that the appellants had received the complete payment of Rs.35 Lakhs at the time of execution of the conveyance deed. The complainants alleged that time and again they had requested the opposite party No.1 & 2 to complete the construction and to handover the flat in question but to no avail. The complainants maintained that it was agreed the service tax liability would always rest with the developer and that the consideration amount already included all costs, including service tax, for the flat.

3. The Appellants/Opposite party (OP) is a sole proprietorship concern engaged in construction business. The appellants asserted that money receipt of Rs.16,00,000 by three cheques and that the last payment of Rs 1,12,000 and a sum of Rs.87,500 remained due out of the total consideration money of Rs.35 lakhs. The OP Nos. 1 and 2 served a legal notice dated 17.03.2017 to the Respondents. The appellant asserts that the dispute is purely civil in nature as the possession had already been delivered. The OPs asserted that they had completed the construction of the flat within the stipulated period, but due to non payment of the consideration money, cost of extra decoration and service tax, the possession of the flat could not be delivered. The opposite party claims that the complainants borrowed additional funds from them to address financial difficulties caused by demonetization and to complete the registration of the Sale Deed. However, this loan has not yet been repaid and remains outstanding.

4. The learned State Consumer Disputes Redressal Commission vide its order dated 16.08.2019 allowed the complaint against OP Nos. 1 & 2 and dismissed against OP No.3 with the following directions:

“(i) The Opposite party Nos. 1 and 2 are jointly and severally directed to handover the possession of the flat as mentioned in the Deed of Conveyance dated 03.02.2017 in favor of complainants within 60 days after obtaining Completion Certificate from the South Dum Dum Municipality;

(ii) The Opposite party No.1 & 2 are directed to pay compensation of Rs.1,00,000/- in favor of the complainants;

(iii) The opposite party Nos. 1 and 2 are directed to pay Rs.10,000/- to the complainants as costs of litigation;

(iv) The above payments must be paid within 30 days from date, in default, the amount shall carry interest @9% p.a. from date till its realization.”

5. Being aggrieved by the impugned order passed by the Ld. State Commission, the Appellant No.1 & 2 have filed this present appeal No.1954 of 2019 seeking to:

“(i) Admit the present appeal

(ii) Call for the trial court records;

(iii) Set aside the impugned order dated 16.08.2019 passed by the Hon’ble State Consumer Dispute Redressal Commission, West Bengal in CC No.287 of 2017;

(iv) Stay the impugned order dated 16.08.2019 passed in CC No.287 of 2019 by the Hon’ble State Consumer Dispute Redressal Commission, West Bengal;

(v) Award the cost of litigation to the present Appellant; and

(vi) Pass such other and further order(s) as this Hon’ble Commission may deems fit and proper in the facts and circumstances of th