In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.

Case No. CC/198/2023.

Date of filing: 16/10/2023.                     Date of Final Order: 03/07/2024.

Sri Anup Kumad Das,

s/o Late Joy Kumar Das,

of 364/F. Indira Gandhi Road,

P.O. Konnagar, P.S. Uttarpara,

Dist. Hooghly, PIN. 712235.

Presently residing at Golden Near Housing Society,

353, Indira Gandhi Road, P.O. Konnagar,

P.S. Uttarpara, Dist. Hooghly, PIN. 712235.                                      ……complainant

  -vs  -

Sri Arghya Majumder,

s/o Late Nirmalya Majumder,

r/o at N-86/A/1, Arabinda Road,

P.O. Konnagar, P.S. Uttarpara,

 Dist. Hooghly, PIN. 712235.                                                                  …….opposite party

Before:            President, Shri Debasish Bandyopadhyay.

                          Member,  Debasis Bhattacharya.

                          Member, Babita Chaudhuri.

FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that with a view to construct a multistoried building (G+2) upon the property mentioned in 1^st schedule the complainant entered into a development agreement cum general power of attorney on the 28.4.2021 with the op which is executed and registered before the ADSR, Uttarpara, West Bengal being no. 062102194 for the year 2021, Book no. 1, volume no. 0621-2021, pages from 92978 to 93008 and it was agreed amongst the parties and it has been specifically mentioned and stipulated in the development agreements that complainant shall get entire second floor flat measuring about 925 sq.ft. more or less along with proportionate, undivided, undemarcated and impartiable share in the land of the said property with right of enjoyment of all common portions and common facilities to be set in the building proposed to be constructed upon the 1^st schedule mentioned and apart from with complainant get additional of Rs. 5,00,000/- which is non refundable mentioned in 2^nd schedule.

As per development agreements it has been specifically mentioned and stipulated that the complainant would get money on the following mode:

1. At the time of execution of development agreement Rs. 1,00,000/-
2. After 1^st floor roof casting Rs. 2,00,000/-
3. After handed over the owner allocation Rs. 2,00,000/-.

As per the development agreement it has been specifically mentioned and stipulated that the construction of the building shall be completed its entirely by the OP/developer within 24 months from the date of registration of the development agreement and power of attorney but the OP did everything violating the terms and conditions of the agreement and the OP did not obey the commitment and also harassed the complainant in giving them timely possession and money.

It has been specifically mentioned and stipulated that the complainant shall be entitled to get the cash amount of Rs.500000/- only within 24 months from the date of execution of the agreement but since execution of the agreement the OP only paid a sum of Rs.300000/- only to the complainant but thereafter inspite of repeated demands he did not pay the balance amount as per the agreement to the complainant.Since execution of the said agreement the OP did not complete the construction work nor made any arrangement for giving possession of the flat mentioned in 2^nd schedule below to the complainant inspite of making regular demand for completion of the said project and to hand over the possession of the said flat but the OP did not pay any heed to the same.The complainant requested the OP a number of times for payment of the balance consideration money and complete the construction and handed over possession with completion certificate but the OP paid no heed to such requests of the complainant for reasons best known to him to hand over the possession of the said flat.

The complainantfinally send a letter to the opposite party with same request vide letter dated 12.12.2022 and thereafter opposite party sends a letter to the complainant dated 19.5.2023 with some false and fabricated version and demanded to pay for extra work although complainant never said and requested to the opposite party for doing the extra work and thereafter finding no other alternative complainant further sends a letter on 19.8.2023 to the opposite party and further requested him to pay the balance amount and hand over the possession of the said flat but the opposite party refused the said matter and the complainant also informed the matter to the Chairman, Konnagar Municipality by a letter on 21.8.2023 and thereafter complainant further sends a letter on 30.8.2023 to the opposite party with the same request but the opposite party refused the said letter and thereafter the complainant waited some time for reply by the opposite party and thereafter the complainant further send a letter on 15.9.2023 with same request to handed over possession as per agreement and pay the balance amount of Rs. 2,00,000/- only but in vain and the opposite party refused the said letter.

Complainant filed the complaint petition praying direction upon the opposite party to give delivery of possession duly completed flat along with completion certificate and possession letter of flat mentioned in the 2^nd schedule and to pay a sum of Rs. 2,00,000/- along with 18% interest with effect from 28.4.2023 and to pay a sum of Rs. 500000/- toward mental agony, anxiety and harassment and to pay a sum of Rs. 3,00,000/- towards financial damage of the complainant and to pay the rent amount and maintenance charge (Rs. 8000 + 1162) from 28.4.2023 to till handed over the flat and balance consideration amount along with interest and to pay a sum of Rs. 30,000/- towards litigation cost and to give any other relief(s) as deem fit and proper.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.

Argument highlighted by the ld. Lawyers of the parties

Complainant filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of complainant are to be taken into consideration for passing final order.

            Argument as advanced by the agent of the complainant heard in full. In course of argument ld. Lawyer of complainant has given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties inspite of receiving notice have not filed any W/V and also have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. This District Commission after going through the materials of the case record finds that the complainant is a resident of Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. It has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus on close examination of the pleadings of the complainant it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law.

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the complainant and there is also necessity making scrutiny of the documents filed by the petitioner of this case.

            For the purpose of arriving at just and proper decision in respect of points of consideration nos. 4 and 5 this District Commission finds that there is necessity of making scrutiny of the evidence given by the complainant. In this regard it is important to note that the ops have neither filed any W/V nor filed any evidence on affidavit to disprove the case of the complainant. On close examination of the evidence given by the complainant side it is revealed that the complainant has categorically described his case in the evidence and the evidence given by the complainant is also supported by documents. It is also revealed that the evidence (oral and documentary) which is given by the complainant side remains unchallenged and/ or uncontroverted as no cross examination has been highlighted in this case by the ops. After going through the materials of this case record this District Commission finds that there is no reason to disbelieve the unchallenged and uncontroverted testimony of the complainant side. It is also transpires that the complainant has proved his case by way of adducing evidence in connection with the points of consideration nos. 4 and 5 which have been adopted in this case.

All the above noted factors are clearly reflecting that the complainant is entitled to get relief in this case which has been prayed by this District Commission.

In the result it is accordingly

ordered

that the complaint case being no. 198 of 2023 be and the same is allowed ex parte but in part.

It is held that complainant is entitled to get a decree directing the OP to give delivery of possession of the 2^nd floor flat in duly completed position alongwith completion certificate and possession letter and also entitled to get compensation of Rs.45000/- and litigation cost of Rs.5000/-  and to get refund of Rs.2,00,000/-.  OP is directed to hand over / deliver possession of the second floor flat in fully completed position alongwith completion certificate and possession letter and also directed to pay compensation of Rs.45000/-and litigation cost of Rs.5000/- and of Rs. two lakh within 45 days from the date of passing of this judgment.  Otherwise complainant is given liberty to execute this award as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite party nos. 1 and 2 are also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.

Dictated and corrected by me.