P R E S E N T - Smt. Chandrima Chakraborty - Member
- Sri Nirmal Kumar Roy - Member
J U D G E M E N T
Order no. 27., dt. 10.09.2015.
Claiming himself as a consumer, under the C. P. Act, 1986, the complainant has sought for interference of this Forum in respect of fact complained of.
In succinct, the case stated in the complaint, is that, the Complainant entered into an ‘Agreement for Sale’ on 12.03.2011, with the Opposite Party No. 1 for purchasing a self contained residential flat, being flat no. D/402, on the 3rd floor, measuring 1700 Sq. ft. more or less including super built up area, @ Rs. 1550/- per Sq. Ft, at a total consideration of Rs. 24,18,000/- only, in a residential building named ‘Chandi Apartment’ moreover described in the ‘B’ Schedule property. Accordingly the complainant claimed to have paid the entire consideration amount within 28.09.2011 and after receiving the entire payment the Opposite Party No. 1 had already handed over the actual vacant possession of the said flat to the Complainant after an extra payment of Rs. 2,40,000/- only was made by the Complainant by a self cheque towards the Opposite Party No. 1.
But the Opposite Party No. 1 had failed to deliver the sanctioned building plan, the copy of the Development Agreement, the Site Plan of the said flat, the Receipt of the Security Deposit of CESC Ltd. has not yet been delivered to the Complainant in spite of repeated demand. Moreover, after verification of the said flat the Complainant found that the covered area of the said flat is actually 1430 sq. ft. instead of 1560 sq. ft.
Moreover, the Opposite Party No. 1 also flailed to execute and register the Sale Deed in respect of the said flat in favour of the Complainant, what amounts deficiency and/or negligence in rendering service towards him, for which he has to suffer harassment and mental agony and prayed for compensation. Hence, this case is filed seeking adequate redressal.
Resisting the complaint, all the Opposite Party No. 1 by filing separate Written Versions denying all the contentions and all material allegations made by the Complainant in the petition of complaint and stating inter alia, that the Complainant has no locus standai, and the case is not maintainable either in law or in fact.
The specific case, as stated by the Opposite Party No. 1, in terse, is that the Opposite Party No. 1 entered into an ‘Agreement for Sale’ on 12.03.2011 for selling a flat described in the ‘B’ Schedule property @ Rs. 1,600/- only per sq. ft. and the Complainant has paid a sum of Rs. 24,18,000/- only not the entire consideration amount. As per the obligation of the Opposite Party No. 1 he had arranged for registration of the said flat (‘B’ Schedule property) taking valuation from the ADSR Serampore, Dist. Hoogly and had prepared the Draft Deed and accordingly had delivered the actual possession of the said flat to the Complainant on 28.09.2011 although the Complainant did not pay the entire consideration amount. The Complainant also never paid the residue amount for the extra work amounting to Rs. 4,62,300/- only to the Opposite Party No. 1.
Ultimately the Opposite Party No. 1 issued the legal notice on 08.08.2012 to the Complainant for non compliance of the terms and conditions of the said ‘Agreement for Sale’ dated 12.03.2011. Thus the Opposite Parties denied any deficiency and negligence against the Complainant and prayed for dismissal of the case against them.
Despite proper service of the notice to the Opposite Party No. 2, the concern Opposite Party never appeared before the Forum to contest the case nor he had filed any ‘Written Version’ on his behalf or through any Ld. Advocate/Representative. Thus the Opposite Party No. 2 has relinquished his scope to refute the case. So, the instant case has been heard ex-parte against the Opposite Party No. 2
Point for Consideration
1. Is the complaint maintainable under the C. P. Act ?
2. Was there any negligence and/or deficiency in service
on the part of the O.P ?
3. Is the complainant entitled to get the relief as prayed for ?
Decision with Reasons
All the points are taken up together for consideration for the sake of convenience and brevity.
We have carefully considered and scrutinized the submission made before us by the Ld. Advocate for the Complainant and also the Ld. Advocate for the Opposite Party No. 1 and also critically perused all the material documents on record.
The dispute between the both Complainant and the Opposite Party is that whether the Complainant is entitled to get the said flat executed and registered by the Opposite Parties and also entitled to get the other reliefs as prayed for or not.
On overall evaluation of the argument made before us by the Ld. Lawyer for the Complainant and also the Ld. Advocate for the Opposite Party No. 1 and the material evidences on record, it is evident and admittedly the Complainant entered into an ‘Agreement for Sale’ on 12.03.2011, with the Opposite Party No. 1 for purchasing a self contained residential flat in a residential building named ‘Chandi Apartment’ moreover described in the ‘B’ Schedule property and admittedly the Complainant had paid a sum of Rs. 24,18,000/- only as consideration amount for the said disputed flat and the Opposite Party No. 1 had handed over the actual possession of the said flat to the Complainant and by filing the instant case the Complainant has prayed for the sanctioned building plan, the copy of the Development Agreement, the Site Plan of the said flat, the Receipt of the Security Deposit of CESC Ltd. and for the execution and registration of the Sale Deed in respect of the said flat.
Manifestly, it is crystal clear from the petition of complaint and also from the ‘Agreement for Sale’ dated 12.03.2011 that the consideration amount of the said flat is Rs. 24,18,000/- as stated by the Complainant. And it is specifically stated in the Section 11, Clause (1) of the Consumer Protection Act, 1986, that the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed “does not exceed rupees twenty lakhs”.
Moreover, the Complainant had also claimed for compensation of Rs. 2,00,000/- 0nly and for litigation cost of Rs. 20,000/- only from the Opposite Parties, which distinctly exceeds the limit of the pecuniary jurisdiction of the District Forum as per the C. P. Act, 1986.
The Ld. Advocate for the Complainant referred a ruling of the Hon’ble State Commission, Kolkata (S.C. Case No. CC/08/66) which is not relevant with the instant case as in the sited case reference the execution and registration of the flats had been completed for which that case is not related with the instant case.
Thus, the unanimous decision of the Forum is that though the claim of the Complainant exceeds the pecuniary jurisdiction of the statute of the Consumer Protection Act, 1986, the instant case is not maintainable in the District Forum, but the Complainant is given the liberty to file the instant case afresh before the appropriate Forum.
Therefore, in light of the above analysis, we are of the opinion that the Complainant is not entitled to get the relief as prayed for and consequently the points for consideration are decided in negative.
In short, the Complainant deserves failure.
In the result, we proceed to pass.
The case is dismissed on contest without cost, with liberty to file fresh.
O R D E R
That the case be and the same is dismissed on contest against the Opposite Party without any cost, and morefully with a liberty to file the instant case afresh before the appropriate Forum within three months from the date of this order.
Let copies of the order be supplied to the parties free of cost when applied for.
