The instant complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of a father and son/purchasers against the developer/builder and the landowner on the allegation of deficiency in services on the part of the developer in a consumer dispute of housing construction.

Succinctly put, complainants’ case is that on 12.03.2015 they entered into an agreement for Sale with the Opposite Parties to purchase of a self-contained residential flat measuring about 1855 sq. ft super built up area being Unit No. D on the 1st floor in Tower No.5 together with two open car parking spaces and servants room as specified being No. SQ-D in the building lying and situated at Premises No.54/10, D.C. Dey Road, P.S.- Tangra, Kolkata – 700015, Dist- South 24 Parganas within the local limits of Ward No. 58 of Kolkata Municipal Corporation. Subsequently, on payment of entire consideration amount, on 26.03.2015 a Deed of Conveyance was executed in respect of the flat, car parking spaces and servant’s quarter together with proportionate share or interest in all common portions with the facilities and amenities described in 4th Schedule of the Deed of Conveyance. At the time of execution of Sale Deed, the possession was also delivered in favour of the complainants. After taking possession, complainants verbally requested the OPs to send a proposal for such addition/alteration and/or modification but the opposite parties did not send any quotation as well as formal proposal for such modification. The complainants state that the opposite parties never claimed any charges for such modification. On 30.11.2015 the complainants sent a legal notice to the OPs demanding delivery of possession and subsequently, the complainants have also sent another demand notice dated 01.03.2016 but it turned a deaf ear. Hence, the complaint with prayer for following reliefs, viz. (a) to direct the OPs to give possession to them as per Deed of Conveyance dated 26.03.2015; (b) to provide the facilities, amenities and services as per Deed of Conveyance; (c) to pay compensation for delay in delivery of possession; (d) to pay interest for loan from the date of Deed of Conveyance till actual delivery of possession etc.

The Opposite Party Nos. 1 to 3 by filing a joint written version have stated that at all material time they were and still willing to handover the flat to the complainants upon receipts of costs of additional works. The contesting OPs have also stated that they had entered into a commercial transaction with the complainants and there was no scope for carrying out additional work gratuitously without consideration.

Both the parties have tendered evidence through affidavits. They have also given reply against the questionnaire set forth by their adversaries.

Both the parties have also filed brief notes of arguments at the time of final hearing of the case.

The pleadings, evidence on record and brief notes of arguments filed by the parties make it abundantly clear that on 12.03.2015 the complainants entered into an Agreement for Sale with the Opposite Parties to purchase of a self-contained residential flat measuring about 1855 sq. ft super built up area being Unit No. D on the 1st floor in Tower No.5 together with two open car parking spaces and servants room as specified being No. SQ-D in the building lying and situated at Premises No.54/10, D.C. Dey Road, P.S.- Tangra, Kolkata – 700015, Dist- South 24 Parganas within the local limits of Ward No. 58 of Kolkata Municipal Corporation. Subsequently, on payment of entire consideration amount of Rs.95,97,750/-, the developer executed the Deed of Conveyance on 26.03.2015 in respect of the flat, car parking spaces and servant’s quarter together with proportionate share or interest in all common portions with the facilities and amenities described in 4th Schedule of the Deed of Conveyance. The Deed of Conveyance and the contents of written version indicate that at the time of execution of Sale Deed, the possession of the flat was also delivered to the complainants. It is also not in dispute that the developer has obtained Completion Certificate from the Kolkata Municipal Corporation before delivery of possession.

Undisputedly, after taking formal possession of the flat, the complainants handed over the purchased flat to the developer for some repairing. The correspondences between the parties indicate that after transfer and conveyance, the complainants had entrusted the possession of the said flat to the developer for carrying on additional works but there is no evidence whatsoever what kind of additional work will be done by the developer. The developer did not ever send any quotation to the complainants as to such repairing and claiming any amount for repairing purpose. It is contended on behalf of OPs that due to delay on the part of the complainants in providing the tiles, the additional works has been delayed. It is surprising enough that either of the parties did not take any initiative to ascertain the quotation as to the works required for repairing and the estimated costs thereof. However, it is evident that though the complainants have taken symbolic possession but actual possession of the flat is still lying with the opposite parties. The complainants had not only purchased the flat but also two open car parking spaces and also servants quarters but as the developer keep the keys in possession of them, the complainants are not in a position to take possession of the flat which prompted them to lodge the complaint.

In such a situation, on 30.11.2015 the complainants through their Advocate wrote a letter to the Managing Director of OP No.1 Company requesting them to deliver possession within 15 days. A reply was given by OP No.1 on 23.12.2015 against that letter but the said letter is totally silent as to the amount claimed by them for replacement of tiles in the flat of the complainants but stated that they are ready to handover possession. In this backdrop, the complainants compelled to send a demand notice on 01.03.2016.

Ld. Advocate for contesting OPs has submitted that since the transaction has already been completed and the flat in question was handed over to the OPs for the purpose of repairing, complainants cannot be termed as ‘consumer’ as defined in Section 2(1)(d) of the Act. On the other hand, Ld. Advocate for the complainants has contended that only symbolic possession was delivered but the complainants did not take any physical possession of the flat and keeping in view the object behind the legislation of the Act, the complainants are entitled to an order of delivery of possession.

It is well settled that after accepting the entire consideration amount as per agreement, the developer is under obligation to – (a) deliver possession, (b) execute and register the Sale Deed and (c) obtain completion certificate/occupancy certificate from the authority concerned. In the instant case, the Deed of Conveyance has already been executed and the OPs have obtained Completion Certificate from the Kolkata Municipal Corporation and also delivered symbolic/technical possession but did not provide physical possession. It is manifest from the statement of Objects and Reasons and the Scheme of Act that its main object is to provide for better protection of the interests of the consumer. Therefore, having due regard to the scheme and purpose sought to be achieved, viz. better protection of the interest of consumers, the provisions of the Act have to be given purposive, broad and positive construction. Evidently, the developer without informing the complainants as to the costs to be borne by them for the purpose of alteration, repair or renovation cannot hold the subject flat for an indefinite period to claim amount at their own whim and fancy, more

so, when the developer has opportunity to institute a suit before a competent Court of Law to recover the amount. In any case, the developer has no authority to keep the possession of the flat which has already been purchased by the complainants on payment of entire consideration amount. In view of the above, the complaint is disposed of with the following directions – i. The Opposite Parties are jointly and severally directed to issue a possession letter in favour of the complainants in respect of the property as mentioned in 2nd Schedule to the Deed of Conveyance dated 26.03.2015 within 30 days from date; ii. The Opposite Parties are jointly and severally directed to pay Rs.10,000/- to the complainants as costs of litigation within 30 days from date in default the amount shall carry interest @ 9% p.a. from date till its realisation.