In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/92/2021.
Date of filing: 26/07/2021. Date of Final Order: 21/08/2024.
Smt. Piyali Sen,
w/o Sri Krishnendu Sen,
r/o 442(219), S.S. Bose Sarani,
P.O. Baidyabati, P.S. Serampore,
Dist. Hooghly, PIN. 712222. …..complainant
vs -
- MA NISTARINI CONSTRUCTION,
A partnership firm having its office at
163(375/1), G.T. Road, P.O. Baidyabati, P.S. Serampore,
Dist. Hooghly, PIN. 712222.
Represented by its partners:
- Sri Balaram Ghosh,
s/o Late Gopal Chandra Ghosh,
r/o 94/81, S.C.M. Road, Sheoraphully Coal Depot,
P.O. Sheoraphuly, P.S. Serampore,
Dist. Hooghly, PIN. 712223.
- Sri Rajesh Kumar Singh,
s/o Late Ram Ashray Singh,
r/o 13(297), G.T. Road, P.O. Baidyabati, P.S. Serampore,
Dist. Hooghly, PIN. 712222.
- Sri Ashoke Ghosh,
s/o Sri Ashananda Ghosh,
r/o Ambagan, KantaPukur (South Side)
P.O. Sheoraphuly, P.S. Serampore,
Dist. Hooghly, PIN. 712223.
- Sri Amit Das,
s/o Late Santi Ranjan Das,
r/o 76/1, Mirpara, P.O. Baidyabati, P.S. Serampore,
Dist. Hooghly, PIN. 712222.
- Sri Swapan Bhattacharjee,
s/o Late Kalipada Bhattacharjee,
r/o 101, N.T. Road, Baidyabati Chowmatha,
P.O. Baidyabati, P.S. Serampore,
Dist. Hooghly, PIN. 712222.
- Sri Prithwiraj Samanta,
s/o Late Prandhan Samanta,
r/o 25/1/1, Beni Banerjee Lane,
P.O. Baidyabati, P.S. Serampore,
Dist. Hooghly, PIN. 712222.
- Smt. Kalpana Dutta,
w/o Dhananjay Dutta,
r/o Chatra Barui Para, P.O. Chatra,
P.S. Serampore, Dist. Hooghly, PIN 712204.
- Sri Goutam Bhakat,
s/o Sri Baidyanath Bhakat,
r/o 4(3), Bengal Coal Lane,
P.O. Sheoraphuli, P.S. Serampore,
Dist. Hooghly, PIN. 712223.……opposite parties
Before: President, Shri Debasish Bandyopadhyay.
Member, Debasis Bhattacharya.
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 complainant stating that on the basis of well acquaintance, the complainant on the basis of verbal agreement and in good faith paid booking money of Rs.50000/- by cheque to the OP-1 on 17.11.2017. Thereafter, the complainant paid total sum of Rs.700000/- to the OP. In respect of the residential flat which is more fully described in the schedule. It was interalia, agreed between the parties that as soon as the residential flat mentioned in schedule will be completed in habitable condition including interior decoration as per instruction of the complainant, Ops informed the same to the complainant and the complainant since the date of payment of booking money was ready and willing to purchase the schedule mentioned residential flat from the OPs by paying balance consideration money. Unfortunately, husband of the complainant became a heart patient and got admitted in B.M Birla Hospital, Kolkata for treatment and the complainant has to spend a huge amount for treatment of her husband and the complainant received a legal notice dated.22.1.2020 from the OPs through their ld. advocate where in the OPs admitted the acceptance of total sum of Rs.700000/- including booking money out of total consideration money from the complainant and further instructed to complete the sale transaction in respect of the said residential flat by paying in the balance consideration money. Thereafter the complainant received another to legal notices dated 19.2.2020 and 22.8.020. The complainant made reply thereto and assured the OPs by stating to complete the sale transaction by paying balance consideration money. COVID 19 lock down period started, the complainant became financial handicapped on the one hand for the treatment of her husband and on the other fall down her family business due to covid situation. The complainant over the situation and ready to purchase the said schedule mentioned residential flat by paying the balance consideration money but the OPs denied to sale the schedule mentioned flat to the complainant by receiving the balance consideration money. The complainant served two notices by registry post with A/D in the names of OP no-1 and its other three partners. OP-1 received the first one and ‘refused’ to accept the second one. It is pertinent to mention here that the said flat mentioned is not yet completed in all respect and in habitable condition. The complainant is not ready to purchase the schedule mentioned that by paying balance consideration money. The OP Nos.1,2 &5 verbally ignored to sale the schedule mentioned residential flat to the complainant.
With the acceptance of booking money and subsequently money towards total consideration for sale of the schedule mentioned flat in complete and habitable condition a consumer relation has been established between the parties and as such statutory obligation has been casted upon the OPs to sale the schedule mentioned flat to the complainant by receiving the balance consideration money.
Complainant filed the complaint petition praying direction upon the opposite party to put the complainant in possession in complete schedule mentioned flat in habitable condition and byway of internal suggestive complete decorative work of the complainant as early within time specified by the Commission and to receive the balance consideration money from the complainant and to execute and register deed of conveyance in favour of the complainant in time specified by the commission and not to create any obstruction/disturbance to the complainant and her men to enter into the building (G+4) and the proposed schedule flat for inspection and to pay a sum of Rs. 100000/- for harassment, sufferings, mental agony and treatment.
Defense Case:- The opposite party Nos. 1 to 5 and 7 to 9 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that their Ld. Advocate sent letters dated 22.1.2020, 1.2.2020,19.2.2020,22.8.2020 to the complainant on their behalf. From the letter dated 1.2.200, it is mentioned that the flat in question is ready for possession subject to payment of balance consideration and in that letter the complainant was directed as per instruction of the earlier notice dated 22.1.2020 failing which law will take its own course. Similarly, in the letter dated 19.2.2020 the complainant again was directed to follow the instructions of the earlier notice dated 22.1.2020 failing which law will take its own course. From the letter dated 22.8.2020 it is found that the OPs mentioned that the verbal agreement, if any, has no effect as it is terminated. It is also mentioned in that letter to the effect that the complainant was directed to take the refund of the booking as well as other payments after deducting or adjusting cost and expenses incurred for remodeling. In spite of having knowledge of those letters, the complainant did not pay any heed. It is further submitted that the flat in question was completed before the month of December, 2017 and the Ops transferred other flats to different intending purchasers by different sale deeds. Out of good faith and trust, the ops amalgamated the two flats measuring 660 sq.ft. and 736 sq.ft., respectively i.e. total 1396 sq.ft. as per verbal agreement and request of the complainant and the consideration money was fixed at Rs. 2150/- per square fit, so the total consideration amounting Rs. 30,10,400/-. Besides the ops incurred extra expenses amounting Rs. 70,000/- for the requirement of addition/ alteration of the flats. So, in all, the total consideration of the said two flats after amalgamation is being Rs. 30,80,400/-. It is submitted that inspite knowing the habitable conditions of the flats, the complainants did not make any attempt to pay the balance consideration by installments as per assurance. So, there is a gross negligence on the part of the complainant to repay the balance consideration of the flats. So, the instant case has no merit or substance and therefore, it is liable to be rejected.
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 and denial of the written version of the opposite parties.
The answering opposite party 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
Complainant and opposite party 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 agents of the complainant and the opposite party 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 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 even after appearance in this case and after filing written version, 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. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Mankundu, 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. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version 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 the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties 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 pints 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 parties and there is also necessity making scrutiny of the documents filed by the parties of this case.
On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that it is admitted fact that the complainant paid Rs.700000/- to the OPs in respect of the residential flat which has been mentioned in the schedule of the complaint petition and Ops also have received the said amount. Inspite of receiving the said amount of Rs.700000/- from the complainant the Ops have neither delivered possession of the said residential flat to the complainant nor executed and registered any deed of conveyance in respect of the said flat. In this regard it is also revealed from the evidence on record that the complainant has failed to show her readiness and illness in the matter of purchasing the schedule mentioned flat within stipulated period of time and in this regard the complainant has adopted the plea of willingness of her husband. It is also reflected from the evidence on record that the Ops had sent two notices to the complainant in the matter of purchasing the said flat after payment of balance consideration amount but the complainant failed to comply the said direction and as a result of which the Ops have terminated the agreement for sale. In this regard it is important to note that when the agreement for sale has been terminated, the said contract executed in between complainant and OPs was / is no longer in existence. In view of such position the complainant is not entitled to get the delivery of possession in respect of the said flat and there is no scope for execution and registration of the deed of conveyance. However, question is whether the complainant is entitled to get refund of advance amount of Rs.700000/- or not. In this regard it is the settled principle of law that when the Ops / promoters developers failed to deliver possession of the flat and also failed to execute and register the deed of conveyance, the consumer who is the complainant of this case is entitled to get refund of the earnest money i.e. Rs.700000/- alongwith @ Rs.9 % per annum . This legal principle has been observed by the Hon’ble Apex Court in the case of Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor which is reported in AIR2022SC1824. Thus it is crystal clear that the complainant is entitled to get refund of Rs.700000/- from the Ops alongwith interest @ Rs.9% per annum from the date of filing of this case (26.7.2021).
In the result, it is accordingly,
Ordered
that this complaint case being no. 92 of 2021 be and the same is allowed on contest but in part against the Ops. It is held that the complainant is entitled to get refund of Rs.700000/- alongwith interest @ 9 % per annum from the date of filing of this case (26.7.2021).
Opposite Parties are directed to pay the said amount within 45 days from the date of passing of this judgment/ final order failing which the complainant is given liberty to execute this award as per law.
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.
