Presented by: -

                   Shri Debasish Bandyopadhyay, President.

Complaint Case No. 361/2018

This case has been filed by the complainants with the prayers for payment of the arrear total amounting to Rs. 3,76,500 from the month of July, 2014 to April, 2018 and also for awarding compensation  alongwith damages of Rs. 7,50,000/- and for payment of limitation cost etc.

Fact of this case

Case of the complainant

The case of the complainant which have been  deciphered from the complaint petition  in bird’s eye view is that the complainants are the consumers within the purview of Consumer Protection Act, 1986 under the OP and the complainants are the joint owners and occupiers of Bastu Land measuring about 2  Cottah, 15 Chittak situated  at R.S. Plot No. 414 corresponding to L.R. Dag No. 595 of  Mouza Jagacha, Dist. Howrah Municipal Corporation, Ward No. 47 and the original owner of the said property was Narayan Kumar Ghosh @ Narayan Chandra Ghosh  and after the demise of said Narayan Chandra Ghosh  the complainants inherited the said property.  It is submitted that the said property which has been described as A Schedule property  was in dilapidated condition  and due to lack of knowledge, experience and poor financial condition the complainants had approached to the OP who is a Promoter / Developer to promote and develop the A Schedule property  and to build / construct a multi-storied building and in this respect one Development Agreement alongwith Registered General Power of Attorney  was executed in between complainants and OP which was executed on 09.03.2014 and which has been described as A Schedule Property.  It is pointed out that for the purpose of smooth running of the construction work of the A Schedule property the complainants absolutely / blindly has kept faith and granted General Power of Attorney  in favour of the OP but the dream of the complainants dramatically changed after few weeks  when the OP stopped paying of rent  of the rented house after three months where the complainants shifted  for the purpose of raising construction of the B Schedule property .  It is also asserted that the complainants  also handed over original Deed of Partition, Original Record of Rights  etc. in respect of the A Schedule property  to the OP who even kept the original Development Agreement and original Power of Attorney with him on the pretext  of obtaining  sanction plan.  It is also pointed out that at the time of entering into the Development Agreement the OP agreed to hand over one 800 sq. ft. residential flat and rest allocated portion is to be handed over  in the ground floor of the B Schedule proposed  multi storied building  according to 60:40 ratio .  It is alleged that take advantage of the simplicity  and lack of knowledge of the complainants, the OP firm practiced fraud  by making them sign  on the Development Agreement  and OP promised  to hand over to the complainants  4 (four) flats  of 400 sq. ft.  and as per terms & conditions  of the Development Agreement  only after complainants’ allotment the Op would sell the developer’s allotment  to their intending purchasers.  It is further alleged that the OP intentionally and willfully  violated terms & conditions of the Development Agreement dtd. 09.03.2014 and the General Power of Attorney dtd. 09.03.2014  and deliberately  had not completed the Schedule  C & Schedule D property which were required to be handed over to the complainants and for that reasons  the complainants had sent a letter  dtd. 2.02.2015 through their Ld. Advocate and also compelled  to revoke  the said Registered Power of Attorney  on 09.12.2015 and the information of revocation  of the General Power of Attorney  was intimated to the OP on 21.12.2015 and also to the Inspector-in-Charge , Jagacha Police Station .  It is also submitted that the OP in spite of several requests  of the complaints  did not complete the construction of C  & D Schedule property  and even after revocation  of the General Power of Attorney the OP also transferred  the flats  of the developer’s share  to the 3^rd parties.  It is also asserted that the complainants under compelling  circumstances had to complete the B Schedule property and obtains  electricity  at the said property by making  huge expenses but the OP and his men and agents  were created various problems to the complainants and even tried to forcibly  grab  the D Schedule property and also tried to make the B Schedule property as Garage   space.  It is also pointed out that  the complainants   informed  the illegal activities of OP  to the Commissioner of Police  and to women Commission no steps have been taken by them and thereafter the complainants  had sent Demand Notice to the OP for making payment of the cost of completion of C Schedule property, damages etc.  It is the case of the complainants that they are entitled to get reliefs, compensation and litigation cost from the OP.   For all these reasons the complainant side has instituted this complaint case against the OP.

Defence Case

            The OP after receiving notice appeared in this case and filed W/V denying all material allegations which has been leveled against him in the complaint petition.  According to the case of the Op the complaint case is not maintainable  and the complainants  have no cause of action for filing this case and the complainants have given false allegations against the OP in the complaint petition and due to revocation  of the General Power of Attorney  the OP has failed to complete  the construction  of the B, C & D Schedule property.

Points of consideration

On the basis of the 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   of 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)       Whether this District Commission / forum  has jurisdiction to try this case?

(iii)    Whether the complainants have cause of action for filing this case?

            (iv)      Are the complainants consumer  under the OPs or not?

 (v)   Whether the complainants are entitled to get compensation, damage and litigation cost from the OP or not?

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

Evidence on  record

In order to prove this case the complainant side has filed evidence on affidavit  and the OP has filed the questionnaires against the said evidence on affidavit  and the complainants have given reply against the said questionnaires.  Thereafter, the OP did not appear in this case due to the reason best known to him.  As a result of which this case is running ex-parte  against the OP.

Argument  highlighted  by the parties

The complainant side has filed BNA.  Besides filing by the complainants Ld. Advocate for the complainant side has highlighted verbal argument    laying emphasis on the oral and documentary evidence.

On the other hand the OP in spite of getting sufficient opportunity has neither filed any BNA nor highlighted any verbal argument.

Decision with reasons

The first four points of consideration which have been framed over the issue of maintainability, cause of action, jurisdiction and whether the complainants are consumer under the OPs or not are vital points of consideration in the matter of deciding the fate of this case.  For that reason and also for the interest of convenience of discussion all the above noted first four points of consideration are clubbed together and taken up for discussion jointly.

For the purpose of arriving at just and proper decision in respect of the above noted four points of consideration, there is urgent necessity of making scrutiny of the material of this case record and there is also urgency for scanning the evidence on record.

This District Commission after going through the material of this case record finds that the complainants are the resident of Howrah district and the OP is also running his business within the district of Howrah.  These matters are clearly reflecting that this District Commission has its territorial jurisdiction to try this case.  Moreover, the claim of the complainants in this case is far below than that of pecuniary limits of 20,00,000/-  .  This factor is clearly depicting that this District Commission has its pecuniary jurisdiction as well.

After going through the evidence on record this District commission finds that the OP in spite of getting sufficient opportunity and time has failed to complete the construction of the owners allocation ( C & D Schedule property) and no explanation  has been given as to why the OP has failed to complete the said construction.  Due to such illegal activities of the OP the complainants had to stay at the rented accommodation for a long time and even the OP did not pay any charges of rent to  the  complainants in respect of  staying at their rented accommodation  during the time of construction of the  B Schedule property.  This factor is clearly  reflecting  that the complainants have their cause of action for institution of this case and the said cause of action is also continuing  cause of action.

According to the terms & conditions  of the Development  Agreement dtd. 09.03.2014 the OP was duty bound  to complete the owners allocation at first and to hand over the possession of the C & D Schedule property to the complainants at first  but fact remains  that the OP has miserably failed to carry out the terms & conditions of the said Development Agreement and also failed to hand over  the peaceful  vacant possession of the C & D Schedule property to the complainants.  Under compelling  situation the complainants  had to complete the construction of C Schedule property by making expense of huge amount.  All these factors are clearly reflecting  that the complainants are the consumer  under the OPs and this case is maintainable  in its present form and in the eye of law.

    A cumulative consideration of the above noted discussion goes to show that the complainants have been able to prove their case in respect of first four points of consideration and so all these first four points of consideration are decided in favour of the complainant side.

The point of consideration No. 5 has been framed  over the issue whether the complainants are entitled to get compensation, damages & litigation cost etc. from the OP or not and what other relief / reliefs  are the complainants are entitled to get in this case .

In order to prove the case in respect of the above noted two points of consideration  the complainants have adduced  evidence  by way of submitting evidence  on affidavit  and the said evidence on affidavit  remains unchallenged and / or uncontroverted.  There is no reason to disbelieve the unchallenged and uncontroverted testimony of the complainant side.  In this connection it is important to note that the OPs have neither produced any evidence on affidavit nor filed any cogent documentary evidence to discard the case of the complainants.  This District Commission on close examination of the evidence on record finds that the complainants have been able to prove their case in respect of points of consideration Nos. 4 & 5 and they are enable of showing / proving   and they are entitled to get the arrear rent of Rs. 3,76,500/- and also entitled to get compensation of Rs. 1,24,500/-   and litigation cost of Rs. 5,000/- from the OP.

Recapitulating  the above noted discussion this District Commission finds that the complainants  have also proved  the points of  consideration Nos. 4 & 5 in this case and so these two points of consideration are also decided in favour of the complainants.

In the result, it is accordingly,

ORDERED

That this Complaint Case being No. 361/2018 be and the same is allowed ex-parte but in part.

It is held  that the complainants are entitled to get arrear rent charges of Rs. 3,76,500/- , compensation of Rs. 1,24,500/-  & litigation cost of Rs. 5,000/- alongwith interest @ 9% per annum from the date of filing of this case.  OP is directed to pay the above noted amount of Rs. 5,06,000/- alongwith interest @ 9% per annum from the date of filing of this case, failing which 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