PER: HON’BLE MR. SAMARESH PRASAD CHOWDHURTY, PRESIDING MEMBER

        The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of a son and father in relation/ intending purchaser against the developer/builder (OP No. 1) and the landowner (OP No. 2) on the allegation of deficiency in services, primarily on the part of developer in a dispute of housing construction.

          In a nutshell, complainants’ case is that on 21.09.2016 they entered into an agreement with the Opposite Parties to purchase of a self-contained flat measuring about 1167 sq. ft. more or less on the third floor alongwith a covered car parking space on the ground floor together with undivided proportionate land at premises No. 07-273 in street No. 273(erstwhile plot No. 75 in Block- DD) in New Town, P.S.- Kolkata Leather Complex, Dist- South 24 Parganas at  a total consideration of Rs. 57,00,000/-. The complainants have stated that they have already paid Rs. 35,00,000/- as part consideration amount towards the said total consideration amount. In the agreement, it was stipulated that the developer will deliver possession of the flat in habitable condition within 8 months from the date of execution of agreement with a grace period of 3 months. The complainants have stated that they have already paid a bulk consideration amount and the balance amount was due to be paid at the time of registration of flat. However, the OPs have failed to keep their promise and they found that construction was incomplete till the end of 2017 and in spite of repeated demands, the OPs could not deliver the flat.  In that perspective, the complainants pray for refund of the amount paid by them but the developer has refused to adhere to the same. Hence, the complainants approached this commission with prayer for several reliefs, viz.- (a) an order directing the OP Nos. 1 and 2  to deliver the flat in complete condition as mentioned in schedule ‘B’ to the agreement for sale dated 21.09.2016 alternatively, to refund amount of Rs. 35,00,000/- along with interest thereon @  12% p.a.; (b) compensation of Rs. 10,00,000/- for harassment and mental agony etc.

   The Opposite Party No. 1/developer by filing a written version admitted the existence of the agreement and the payment of Rs. 35,00,000/- as part consideration amount by the complainants. However, the OP No. 1 has stated that the complainants have defaulted in payment of rent. The OP No. 1 has submitted that he is still ready to handover the property in question to the complainants subject to receipt of balance payment of Rs. 22,00,000/- along with sufficient time to complete the work.

          The Opposite Party  No. 2/landowner by filing a separate written version has stated that he has no knowledge about the agreement between the complainants and OP No. 2 and as he has not received any money whatsoever from complainants, the complaint should be dismissed against him.

          The complainants and OP No. 1 have tendered evidence through affidavit. They have also filed reply against the questionnaire set forth by their adver