Presented by: -
Shri Debasish Bandyopadhyay, President.
The complainant has filed this complaint case against the O.p. for passing direction to deliver peaceful and vacant possession of the schedule mentioned flat and to pay compensation and litigation cost.
Fact of this case
Case of the complainant
This case of the complainant which is deciphered from the complaint petition of complaint in bird’s eye view is that the complainant is a consumer under the O.p. who is a DEVELOPER and a Deed of Conveyance was executed on 4th May, 2015 and complainant became the owner in respect of the said suit flat and O.p. admittedly received the consideration amount. It is submitted that the complainant purchased the schedule mentioned flat by taking loan and complainant has been paying installment amount to the Bank Authority. It is alleged that although the Deed of Conveyance was executed but O.p. refrained himself from giving peaceful and vacant possession of the suit flat in spite of repeated demands. Being aggrieved and dissatisfied with the activities of the O.p. and due to gross deficiency and negligence of service the complainant has been compelled to institute this case against the O.p. as per prayer of the complaint petition.
Defense Case
The O.p. after receiving notice appeared in this case and has contested this case by filing W.V. denying all the materials allegations described in the complaint petition and it is submitted that on 28/04/2015 the Deed of Conveyance in respect of flat no.1 of 4th Floor Block – “A” situated at premises no.79, Madhusudan Lane, P.S. and District Howrah the complainant became the owner of the suit flat and O.p. handed over possession of the said flat. It is alleged that after the lapse of 5 years the complainant has instituted this complaint case with a wild allegation about non-delivery of flat. It is also submitted that there is no deficiency of service or negligence on the part of the O.p. For all these reasons the O.p. has prayed for dismissing this case.
Points of consideration
On the basis of the pleadings of the parties, this District Commission for arriving at just and proper decisions in this case and/or for the interest of proper and complete adjudication of this case is going to adopt the following point for considerations:
(i) Is this case maintainable in its present form and in the eye of law?
(ii) Has this District Commission territorial and pecuniary jurisdiction to try this case?
(iii) Whether the complainant is a consumer under the OP or not?
(iv) Whether the complainant has any cause of action for institution of this complaint case against the OP or not?
(v) Whether the complainant is entitled to get the direction for delivery of possession of the said flat and also entitled to get compensation and litigation cost or not?
(vi) To what other relief / reliefs is the complainant entitled to get from this case?
Evidence lying of this case record
The complainant in order to prove this case has filed evidence on affidavit in support of his point of contention. As the O.p. is not contesting this case after filing w.v. no interrogatories has been filed against the said evidence.
Argument highlighted by both sides
In this complaint case the complainant has filed Brief Notes of Argument and in addition to the filing of B.N.A. the complainant side at the time of verbal argument lay emphasis on the oral and documentary evidence.
Decision with reason
The first 4 (four) points of consideration are related with the questions whether this case is maintainable in its present form and in the eye of law and whether this District Commission has jurisdiction to try this case or not and whether this complainant is a consumer in the eye of law or not and whether the complainant has cause of action for institution of this complaint case or not? In this regard, this District Commission after going through the material of this case record finds that there is no dispute over the issue that the complainant is a resident of Shibpur area which is within the jurisdiction of Howrah District and O.p. is running his business within Howrah Town and thus it is crystal clear that this District Commission has its territorial jurisdiction to try this case. Moreover the claim of the complainant is far below than that of Rs.20,00,000/-. This factor is clearly reflecting that this District Commission has its pecuniary jurisdiction as well. After going to the materials of the case record this District Commission finds that the complainant has paid consideration money to the O.p. for the purpose of purchasing the self content residential flat mentioned in the schedule and to that effect one Agreement for Sale was executed. This matter is clearly reflecting that the complainant is a consumer under the O.p. It is also evident from the evidence on record that the O.p. has neither delivered possession and executed and register the Sale Deed in respect of the above noted flat nor refunded the advanced amount. This matter is clearly reflecting that the complainant has cause of action for filing this case.
All these factors are clearly reflecting that the complainant is a consumer under the OP and so the complainant has the right of institution of complaint case against the OP as is aggrieved against the activities of the O.p. Thus, all the above noted 4 points of considerations are decided in favour of the complainant.
The point of consideration no.5 is related with the question whether the complainant is entitled to get direction to deliver peaceful and vacant possession of the said flat and also entitled to get compensation and litigation cost or not? In this regard this District Commission has already observed that the complainant has paid consideration money to the O.p. but the O.p. has neither delivered possession of the said flat nor executed and register Deed of Sale. In this regard, it is important to note that the evidence which is given by the complainant remains unchallenged or uncontroverted as no interrogatories has been filed against the evidence of the complainant. There is no reason to disbelief the unchallenged and uncontroverted evidence of the complainant. Thus, it is crystal clear that the complainant has proved his case in respect of points of consideration nos.5 & 6.
Recapitulating the above noted discussion this District Commission is of the view that the complainant is entitled to get an award directing the O.p. to deliver peaceful and vacant possession of the scheduled mentioned flat in favour of the complainant and also entitled to get compensation of Rs.20,000/- and litigation cost of Rs.5,000/- from O.p.
In the result,
it is accordingly,
ORDERED
That this Complaint Case being No.146/2020 be and the same is allowed ex-parte but in part.
It is held that complainant is entitled to get an award directing the O.p. to deliver peaceful and vacant possession of the scheduled mentioned flat in favour of the complainant and also entitled to get compensation of Rs.20,000/- and litigation cost of Rs.5,000/- from O.p.
O.p. is directed to handover peaceful and vacant possession of the scheduled mentioned flat to the complainant and to pay the above noted amount within 60 days from the date of passing of this judgment. Otherwise the complainant is given liberty to execute this award as per law.
The parties of this case are entitled to get a fresh copy of this judgment as early as possible.
Let this judgment / final order be uploaded in the official website of The word file is drafted and corrected by me.
(Debasish Bandyopadhyay)
President
D.C.D.R.C., Howrah
