In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/25/2022.
Date of filing: 22/02/2022. Date of Final Order: 5/11/2024.
- Dr. Krishnapada Das
Son of Late Kalipada Das
- Mrs. Anita Das
W/o. Dr. Krishnapada Das
Both of Charu Niketan New Park,
P.O. Bandel, P.S. Chinsurah,
District Hooghly. PIN 712123.…..complainants
M/S. Sai Construction,
a Partnership Firm
Having its office address at
P/C/1 Pritha Apartment, Bankim Kanan,
Talikhola, Chinsurah Station Road,
P.O. & P.S. Chinsurah, District Hooghly PIN 712102
Represented by its Partners
- Sri Barun Kumar Mahajan
Son of Ranjit Kumar Mahajan
Of P/C/1 Pritha Apartment,
Bankim Kanan, Talikhola, Chinsurah Station Road,
P.O. & P.S. Chinsurah, District Hooghly, PIN 712102
Also residing at Nilanjana Complex,
Bankim Kanan, Chinsurah Station Road,
P.O. & P.S. Chinsurah, District Hooghly, PIN 712102.
- Sri Ayan Das
Son of Sri Ranjit Kumar Das
Of N.S. Road, Kharua Bazar,
P.O. & P.S. Chinsurah, District Hooghly, PIN 712101.
……opposite parties
Before: President, Shri Debasish Bandyopadhyay.
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 complainants stating that the O.P. being the vendor/promoter of the 'A' Schedule mentioned property formulated a scheme of developing the property by way of constructing multistoried building (G+4) for the purpose of residential and commercial complex comprising of flats/shops/garages/car parking etc. over the 'A' Schedule below mentioned property.
That thereafter of O.P. canvassed the matter for attracting intending purchasers to the general public at large and also made several advertisements regarding the said project and being aware of the said fact the Complainants entered into a registered Agreement for Sale on 17.01.2018 being Deed No. 060300195 for the year 2018 registered in the Office of A.D.S.R. Hooghly entered in Book No. I, Vol. No. 0603-2018, Pages from 3442 to 3481 with the O.P. for the purpose of purchasing one Flat being Flat No. B/3, on the third floor having covered area of 560 and common service area 140sq.ft. and aggregate approximately 700 sq.ft. super built up area. Super built up area inclusive of proportionate share of common portions briefly mentioned and described in the 'B' Schedule hereunder at a consideration of Rs. 11,20,000/- and for other facilities a sum of Rs. 1,25,000/-i.e. totaling Rs. 12,45,000/-.
That after execution of the said agreement the Complainants has already paid a sum of Rs. 10,00,000/- (Rupees Ten Lakhs) only and it had been settled that the possession of the said flat shall be given within the month of June, 2018 from the date of agreement and the rest consideration value will be paid by the petitioner at the time of Registration and delivery of possession of the said Flat and as per agreement the vendor is liable to pay to the purchasers simple interest @ 24% per annum on the amount of advance for the period of delay.
That the Complainants have paid a total sum of Rs. 10,00,000/- the manner of which is described in the complaint petition and since execution of the said agreement and inspite of receiving payments from the Complainants, the O.P. No. 1 and 2 did not complete the construction work nor made any arrangement for giving possession of the 'B' Schedule flat in favour of the Complainants. The Complainants has made regular demand for completion of the said project and for handing over the possession of the said flat, but the O.Ps. did not pay any heed to the same.
That the O.P.s sent a letter to the complainants vide letter dated 10.05.2018 stating interalia for making full and final payment for causing registration of the flat but as the complainants asked the O.P. to provide lift facility in the said apartment, to install transformer or meter box, and to install bathroom fittings, for providing space for 2 wheeler garage and to fix aluminum panel shutter system window before final registration and since then the O.P. started delaying the registration process although according to the said agreement the O.P.s were under obligation to complete the flat in all respect including the open common entrance and requested the O.P.s to complete the apartment in all respect enabling the complainants to register the B schedule below mentioned flat by June, 2018 according to the agreement but inspite of receiving the said notice, the O.P.s did not pay any heed to the same rather started killing time with one pretext to other.
Complainants filed the complaint petition praying direction upon the opposite parties to hand-over possession of the 'B' Schedule property in favour of the Complainants within the date fixed by the Ld. District Commission and to execute and register sale deed in their favour simultaneously or subsequently after taking the balance sum of Rs. 2,45,000/- and to refund the amount Rs. 10,00,000/- received by them along with interest 18% per annum at a time, in case of failure to give possession of the 'B' Schedule property within the stipulated period and to pay a further sum of Rs. 10,00,000/- towards compensation in favour of the Complainants for causing severe mental pain, agony, anxiety and harassment and to pay a sum of Rs. 50,000/- toward litigation cost.
Defense Case:- The opposite party No. 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that though a partnership firm was established, O.P. no. 2 had no authority to sign any cheque or conduct any transaction of money. It is also to be mentioned that a Title Suit between O.P. no. 1 and O.P. no. 2 is pending before the Learned Civil Judge, Jr. Div., 1st Court at Hooghly. Thus, the complaint against op no. 2 does not stand here. All these incidents were preplanned to trap the O.P. no. 2 and the O.P. no. 1 is absconding at present, so the O.P. no. 2 alone cannot do anything especially when a Title Suit as mentioned before in this petition, is pending before the court of law. So, the complaint petition should be dismissed.
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:-
- Whether the complainants is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainants?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainants is entitled to get relief which has been prayed by the complainants in this case or not?
Evidence on record
The complainants filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainants in the complaint petition and denial of the written version of the opposite party no. 2.
The answering opposite party no. 2 filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.
Argument highlighted by the ld. Lawyers of the parties
Complainants and opposite party no. 2 filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.
Argument as advanced by the ld. Advocates of the complainants and the opposite party no. 2 heard in full. In course of argument ld. Lawyers of both sides have 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 complainants 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.
For the purpose of arriving at just and proper decision in respect of the above noted points of considerations, there is urgent necessity of making scrutiny of the material of this case record and there is also urgency of scanning the evidence on record.
After going through the material of this case record it appears that the complainants have instituted this case under section 35 of the Consumer Protection Act 2019. But as per provisions Consumer Protection Act 2019 (sec.35(1)(c ) of the said Act) when there are more than one complainants, there is necessity of taking permission of the District Commission for joint filing of the institution of this case. For this instant case there are two complainants but the said complainants at the time of filing of this case on 22.2.2022 had not obtained any such permission from this District Commission. No application has been filed by the complainants under section 35(1) (C) of the Consumer Protection Act 2019. This matter is clearly reflecting that the institution of this case is illegal from the very beginning. But fact remains that the complainants have not taken any steps for curing the said defect. Thus it is crystal clear that this case is not maintainable in the eye of law.
Moreover, according to the case of the complainants agreement for sale was executed and registered on 17.1.2018 in between complainants and OPs but this case has been filed by the complainants on 22.2.2022 which is after four years. According to section 69 of the Consumer Protection Act 2019 each and every case is to be filed within two years from the date of cause of action. In this instant case the complainants have not followed this provisions of law. Moreover, the cause of action and delay in the matter of filing of this case also have not been properly explained.
A cumulative consideration of the above noted discussion goes to show that this case is not maintainable and there is no cause of action for filing this case. So this case is liable to be dismissed.
In the result it is accordingly
ordered
that the complaint case being no. 25 of 2022 be and the same is dismissed on contest. No order is passed as to cost.
However, let the complaint petition be returned to the complainants with liberty to file the same afresh on the self-same cause of action after curing the defects.
Parties are entitled to get a free copy of this judgment as early as possible.
Let this judgment be uploaded in the official website of this District Commission immediately.
