In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/158/2023.
Date of filing: 21/08/2023. Date of Final Order: 25/06/2024.
Sri Sukanta Mukherjee alias Mukhopadhyay,
s/o Lt. Kamal Krishna Mukherjee alias Mukhopadhyay,
of Abhipsa Apartment, of flat no. 302 & 303,
3rd floor of block “C”, 83/27, Amarendra Sarani,
Uttarpara, P.O. & P.S. Uttarpara,
Dist. Hooghly, PIN. 712258. …..complainant
vs
- Smt. Krishna Bhatterecharjee,
w/o Lt. Avijit Bhatterjee,
of Abhipsa Apartment, of flat no. 401,
4th floor of block “B”, 83, Amarendra Sarani,
Uttarpara, P.O. & P.S. Uttarpara,
Dist. Hooghly, PIN. 712258.
- Smt. Arushi Bhatterecharjee,
d/o Lt. Avijit Bhatterjee,
of Abhipsa Apartment, of flat no. 401,
4th floor of block “B”, 83, Amarendra Sarani,
Uttarpara, P.O. & P.S. Uttarpara,
Dist. Hooghly, PIN. 712258. ……opposite parties
Before: Member, Debasis Bhattacharya.
Member, Babita Chaudhuri.
FINAL ORDER/JUDGEMENT
Presented by:-
Babita Chaudhuri, Member.
Brief fact of this case:- This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that the predecessor of the ops namely Avijit Bhatterjee who was the husband of the op no. 1 and father of the op no. 2, the complainant purchased the “A” schedule flat of the holding no. 83, Amarendra Sarani of Abhipsa Apartment, P.O. & P.S. Uttarpara, District. Hooghly and the complainant along with his wife namely Smt. Seema Mukhopadhyay obtained the same by way of registered purchase deed no. 1363 of 2007 executed by said Avajit Bhatterjee (now deceased) and mutated their names before the holding registered of Uttarpara-Kotrung Municipality and thereafter the complainant asked the owner/ developer Avijit Bhatterjee for purchasing one “B” schedule car parking garage for the use of the complainant who was then a government employee (now retired) and after negotiation it was fixed that the total consideration money amounting to Rs. 95,000/- (ninety-five thousand) thereon and accordingly the complainant paid the amount in three different dates against receipts dated 21/12/2008 Rs. 45,000/-, on 28/06/2009 Rs. 30,000/-, and on 8/06/2010 Rs. 20,000/- (Rs. 45,000/- Rs. 30,000/- Rs. 20,000/-) and after that took possession of the said car parking garage shown in schedule "C" of the petition.
Thereafter the complainant several times requested the husband and father of the O.P. No. 1 and 2 respectively, Avijit Bhatterjee the owner/developer (now deceased) for making registration of the same but despite the assurances he made several excuses and did not make the registration of "B" schedule car parking garage measuring super built-up area 179 sft. which is situated at ground floor of Block "C" of ABHIPSA HOUSING COMPLEX under Uttarpara- Kotrung Municipality Holding No. 83, Amarendra Sarani, Uttarpara, under R.S. Dag No. 4354, under L.R. Dag No. 4931, under L.R. Khatian No. 3826 of Mouza Uttarpara, J.L. No. 12, P.S. Uttarpara, District Hooghly which is shown and delineated in "C" schedule of the petition.
The Thereafter unfortunately, owner/developer namely Avijit Bhatterjee died intestate on 21/09/2021 leaving behind his widow namely Smt. Krishna Bhatterjee, the O.P. No 1 herein and his daughter namely Arushi Bhatterjee the O.P. No. 2 herein as his only legal heirs. Few months later the complainant showed the said payment receipts and requested the said O.Ps. to make the registration of the "B" schedule car parking garage. The O.P. No. 1 being accustomed with the facts assured and requested the complainant to wait for another few months and the complainant waited until April 2023 for the registration to be made. After that the complainant was frustrated and hence compelled to give notice to the Opposite Parties for non-fixing of the date of registration of said car parking garage through his Advocate Soumika Ghosh on 30/05/2023 by registered post with A/D asking for fixing up of the date of registration of "B" schedule car parking garage within 15 days shown and delineated in "C" schedule which is part and parcel of "B" schedule. The notices returned on 07/06/2023 with the endorsement "unclaimed" which also tantamounts to good service.
Therefore, complainant filed the complaint petition before this Ld. Commission and praying direction upon the opposite parties to execute and registered the “B” schedule below car parking garage which is shown and delineated in “C” schedule below in favour of the complainant or any other order or orders as may deem fit and proper and to pay a sum of Rs. 20,000/- for harassment and mental agony and to pay a sum of Rs. 20,000/- as litigation cost.
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 complainant 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 complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- 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 Uttarpara, 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 points 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. 158 of 2023 be and the same is allowed on ex parte.
Opposite parties are directed to execute and register the ‘B” schedule car parking garage being covered area 149 sft. super built up area 179 sft. which is shown and delineated in the ‘C’ schedule rough sketch map of the petition, within 45 days from the date of this order in favour of the complainant otherwise the complainant is given liberty to execute this order 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.
