Presented by: -

                   Shri Debasish Bandyopadhyay, President.

Complaint Case No. 226/2021

The complainants have instituted this case against the OPs for passing direction upon the OPs to produce the Completion Certificate after obtaining the same from Howrah Municipal Corporation in connection with the schedule mentioned property and also to execute and register the Sale Deed in respect of the residential flat in favour of the complainant after taking balance consideration amount of Rs. 88,500/- and also to pay compensation and litigation cost.

Fact of this case

Case of the complainant

The case of the complainant which is deciphered from the petition of complaint in bird’s eye view is that the  OP No. 2 was the owner  and occupier  in respect of 12 Chittaks Bastu Land comprised  within the Howrah Municipal Corporation Ward No. 23 and situated at Premises No. 19, Kalachand Nandy Lane, P.O. Kadamtala, P.S. Bantra, Dist. Howrah and subsequently  the OP No. 2 entered into a Development Agreement  with OP No. 1 and also executed and registered  Power of Attorney in favour of the OP No. 1 which were registered at the  ADSR Office, Howrah for development of the suit property which  is described in the A Schedule property .  It is submitted that thereafter the OP No. 1 have constructed multi storied building (G+2) and obtained the specific portion towards developers allocated share as per terms & conditions of the Development Agreement  for which the petitioners  as a intending purchasers entered into an agreement for sale dtd. 17.09.2019 with the OPs in connection with one residential flat  at the 1^st  floor of the A Schedule property measuring about 500 sq. ft.  including  super built area together with undivided  proportionate  share of the land and interested underneath of the said building  at a consideration amount of Rs. 9,00,000 (Nine Lakhs)  out of which the petitioners  had paid Rs. 8,11,500/- towards earnest month in favour of the OP and the balance amount of Rs. 88,500/- is only due .  It is  pointed out that the petitioners  obtained possession of the B Schedule flat from the OP No.1  and thereafter invested money for extra job which was amount to Rs. 50,000/- including  charges of obtaining new electric connection from CESC Ltd.  in the B Schedule property as per name of the petition No. 1 to complete the plaster and other incomplete works at the common passage and also to execute and  register  the  Deed of Conveyance  in respect of the B Schedule property .  But unfortunately,  the OP No. 1 did not pay any heed to the request of complainants.  It is further alleged that thereafter the complainants had sent Advocate’s Notice to the OPs dtd. 28.09.2021 and then on 05.10.2021 for completing the execution and registration  of the Deed of Sale  in respect of the B Schedule property but the OPs remains silence.   As a result of which  the complainants  under compelling  situation  approached  before  this District Commission and instituted this complaint case against the  OPs for negligence , deficiency of service etc.  as per prayer of the complaint petition.

Defence Case

In spite of receiving notice  the OP No. 1 did not appear  and taken any steps  due to malafide intention and for which this case is running ex-parte against the OP No. 1

However, the OP No. 2 entered appearance  in this case  and contested this case by filing W/V where the OP No. 2 has practically denied  each and every allegations  of the complainants.  This specific case of the OP No. 2 is that the OP No. 2 is to the owner and occupier  of the A Schedule property  and she acquired the said property from brother Pradip Das and 4 (four) others by virtue of a registered Deed of Gift  dtd. 6^th June, 2018 and then the OP No. 2 duly mutated her name  in the records of Howrah Municipal Corporation and  also in the records of  BLRO.  It is submitted that the OP No. 2 was interested to develop the said land  by constructing  multi storied  building  and for that reason  she entered into a Development Agreement  and registered Power of Attorney with Op No. 2 on 26.03.2019 which were registered before the ADSR Office, Howrah.  It is alleged that the OP No. 1 did not comply  the terms & conditions  which have been mentioned  in the said Development Agreement.  It is also alleged that the OP No. 1 did not obtain any sanction plan from H.M.C. for which proceeding was started against him Howrah Municipal Authority .

Points of consideration

On the basis of the above noted pleadings of the parties this District Commission for the interest   of  proper and complete adjudication of this case and also for arriving at just and proper decision in this case is going to adopt the following points of consideration :-

             (i)        Is this case maintainable in its present form and in the eye of law?

(ii)       Has this District Commission any jurisdiction to try this case?

(iii)      Are the complainants are consumer under the OPs or not?

(iv) Whether the complainants have any cause of action for filing this case or not ?

 (v)   Whether the complainants are entitled to get  direction upon the OPs for production  of the Completion  Certificate  and also for execution and registration  of the Deed of Conveyance  in respect of B Schedule Property after obtaining  the balance consideration money of Rs. 88,500/- or to refund the earnest money of Rs. 8,11,500/- and Rs. 50,000/-  to the complainant alongwith compensation and litigation cost or not?

(vi)      To what other relief / reliefs are  the OPs  entitled to get in this case?

Evidence on  record

The complainant side in order to prove the case have filed evidence on affidavit  and against the said evidence on affidavit  the OP No. 2  has filed  questionnaire and against the questionnaire the complainant side has given reply.

But fact remains  that the neither OP No. 1 nor OP No. 2 have filed any evidence on affidavit  to disprove  the case of the complainant.

Argument  highlighted  by the parties

The complainant side  and OP No. 2 have filed their BNA.  In addition to filing BNA Ld. Advocates of both the complainant side & OP No. 2 have highlighted their verbal argument  and has given emphasis  on the oral and documentary evidence.

Decision with reasons

All the points of consideration  which have been remained in this case are clubbed together  and taken up for discussion jointly  for the convenience of discussion and also for the interest of proper and complete adjudication  of this complaint case

For the purpose of arriving at just and proper decision in respect of the points of consideration  which have been framed in this complaint case, there is urgent necessity of going through the evidence on affidavit  and documents which have been produced by both parties.

After going through the material of this case record and also after scanning the evidence on record this District Commission finds that the complainants entered into Agreement for Sale with OPs in the matter of purchasing  the residential flat which has been described  as B Schedule property  and in this regard  the earnest money  of Rs. 8,11,500/- have been paid to the OP No. 1.  It is also revealed  that the OP No. 1 has also received the said amount from the complainants.   This matter is clearly reflecting  that the complainants are the consumers and customers under the  OPs and for that reason,  it is crystal clear that this case is also maintainable  in its present form and in the eye of law.  Moreover,  the OP No. 1 have not yet  complete some of the construction work of the said building  and also have not executed and registered the Sale Deed in favour of the complainants.   As a result of which the complainant have been compelled to take shelter of this District Commission.  This factor is also clearly depicting that this complaint case is maintainable in the eye of law  as well and the complainants have their cause of action for filing this case.

Thus, the first 4(four) points of consideration are decided in favour of the complainants.

The point of consideration No. 4 has been framed over the issue whether the complainants are entitled to get  direction upon the OPs for production of the Completion Certificate and for execution and registration of the Deed of Conveyance  in respect of the B Schedule property  after taking balance consideration amount of Rs. 88,500/- or alternatively for refunding the amount of Rs. 8,61,000/- ( Earnest money of Rs. 8,11,500/-  + Rs. 50,000/- for Development Work) or not.  Point of consideration No. 5 has been framed over the issue whether the complainants are entitled to get any other relief or reliefs against the OPs or not .

In order to decide the above noted points of consideration  this District Commission  after going through the material of this case record finds that the OP No. 1 in spite of receiving notice has neither appeared nor filed any W/V to disprove  the case of the complainant.  Thus, the evidence on affidavit  which has been filed by the complainant which is the replica of the petition of complaint  remains  unchallenged  and / or uncontroverted .  In this regard it is important to note that the OP No. 2 also have not filed any evidence on affidavit to disprove the case of the complainant side.  This matter is clearly depicting that the OP No. 2 is also admitting the case of the complainant.  In this regard, it is the settled principle of  law  that “fact admitted, need not be proved” the provisions of Section 58 of the earlier Evidence Act is very important in this regard.

A cumulative consideration of the above noted discussion goes to show that the complainant have proved their case in respect of points of consideration Nos. 4 & 5 by adducing satisfactory evidence which remains unchallenged  and / or uncontroverted.  There is no reason to disbelieve the unchallenged and / or uncontroverted testimony  of the complainant side.

Thus,  it is crystal clear that the complainant has proved all the points of consideration which have been framed in this case.  So, the complainants are entitled to get relief as per prayer of the complaint petition.

In the result, it is accordingly,

ORDERED

That this Complaint Case being No. 226/2021 be and the same is allowed on contest but in part against OP No. 2 and it is allowed ex-parte against OP No. 1.

The OP Nos. 1 & 2 are directed either to hand over  Completion  Certificate  and to execute and register Deed of Conveyance in favour of the complainants  in respect of the B Schedule property or alternatively refund the amount of Rs. 8,61,000/-  alongwith interest  @ of Rs. 9% per annum  from the date of filing of this case within 2(two) months  from the date of passing of this judgment .  Otherwise the complainants are given liberty  to execute this award as per law.

The parties of this case are entitled to get a free copy of this judgment as early as possible.

Let this judgment / final order be uploaded in the official website of this District Commission immediately.

Dictated & corrected by me

  President