FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay    President.

Brief fact of this case:-  This case has been filed U/s. 12 of the Consumer Protection Act   1986 by the complainant stating that the OP no.2 being the owner of the schedule mentioned property entered into a development agreement dated 28.10.2003 with the OP no.1 for developing the schedule mentioned property demolishing the old building and also for making construction of building and execution and registration of proper instrument of transfer of godowns   shops   flats etc. with such terms and conditions and also executed a General power of Attorney dated 05.08.2004 to that effect which was notarized by the Notary public Serampore and the OP no.1 formulated a scheme of construction of raising multi-storied building comprising of godowns   flats and shop-rooms etc. over the schedule mentioned property and the OP has developed and constructed a multi-storied building over the property mentioned in schedule mentioned property and made publication for selling of flats   garage spaces etc. to the intending purchasers and being allured with the lucrative advertisements made by the OP no.1 the complainant entered into an agreement of sale dated 30.06.2006  with the OPs for purchasing the flat mentioned in the schedule mentioned property for a consideration value of Rs.4  00  000/- and to that effect he paid a sum of Rs.3  00  000/- only on the self same date towards advance consideration amount and the OP also issued a receipt thereof and on the date of entering into agreement the OP also made declaration for hand over possession of the schedule mentioned property within six months of the said agreement but inspite of lapse of six months as the OP failed to handing over the possession of the schedule mentioned flat.  Although on several occasions the complainant requested the OP for giving possession of the schedule mentioned flat in his favour after receiving the rest consideration value of Rs.1  00  000/-  but the OP killed time with one pretext to the other and ultimately by a letter dated 19.02.2016 the OP no.1 undertaken to execution and registration and also handover possession of the schedule mentioned flat in favour of the complainant within six months from the said date but again the said six months has already been elapsed but the OP neither gave possession of the flat in favour of the complainant nor made arrangements for registration of the said flat after receiving the balance consideration amount and since execution of the said agreement   as per terms the payments have been made by the complainants to the Op no.1 but inspite of receiving the same the OP no.1 did not pay any heed to the same and has been killing time with one pretext to the other and as such finding no other alternative the complainant   sent a legal notice dated 05.09.2015 to the OP no.1 through his Ld. Advocate asking the OP to hand over possession of the schedule mentioned flat and alsomake registration of the same after taking balance consideration value of Rs.1  00  000/- from the complainant immediately within 1 month from the date of receipt of that notice but inspite of receiving the same the OP no.1 did not pay any heed to the same.

Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs. 4  00  000/- as compensation for causing severe mental pain   agony   anxiety and harassment and the entire consideration value along with interest @18% p.a. and to pay a sum of Rs.20  000/- for litigation cost.

Defense Case:-  The opposite party No. 1 contested the case by filing written version denying inter-alia all the material allegation as leveled against him that the complainant and the OP no.1 both were the joint partner in respect of constructing any new flat and partnership agreement dated 15.12.2005 were executed between the parties. The complainant invested his Rs.1  00  000/- as capital in the said partnership business in the year 2005 through cheque but after few days the complainant did not carry on the said partnership business as a result he dissolved the said partnership with the OP no.1 The Op no.1 time to time returned the all deposited capital investment of the complainant alongwith the then business profit to the complainant through cheque and the complainant duly received the same in his account.  The OP no.1 never execute any agreement of sale with the complainant at any point of time in respect of the alleged schedule mentioned flat.  The money deposited by the complainant had already been returned alongwith profit through cheque by the OP no.1.  Moreover the complainant since 2006 to 2016 was silent regarding his any claim as because he had no due from this answering OP no.1 & there is no cause of action to file this case.

The opposite party No.2 contested the case by filing written version denying inter-alia all the material allegation as leveled against him.  The case matter took place by and between the complainant and the OP no.1.  The OP no.2 has no involvement regarding the case matter at all   so the OP no.2 may be expunged from this complaint for the ends of justice.

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:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. 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 parties 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 parties 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 parties 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 after appearance in this case and after filing written version   have filed petition on the ground of non-maintainability of this case and M.A. case no. 19 of 2018 was registered and the said petition of maintainability has rejected on contest vide order no. 7 dt. 8.1.2019 and the above noted M.A. case was disposed off. But fact remain that said order has not been challenged. 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 and op no. 1 are  resident of Serampore   Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover   this complaint case has been filed with a claim of below 20 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 11 of the Consumer Protection Act   1986 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 24A of the Consumer Protection Act   1986 is very important and according to the provision of Section 24A 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) (d) of the Consumer Protection Act   1986 it appears that this case is maintainable and according to the provision of Section 2 (1) (d) of the Consumer Protection Act   1986. Complainant is a consumer in the eye of law. It is the settled principle of law that a consumer invoking the jurisdiction of the District Commission can seek such relief as he or she considers appropriate. This legal principle has been observed by Hon  ble Apex Court in the case of Experion Developers Pvt. Ltd. vs. Sushma Ashok Shiroor and it is reported in AIR2022SC1824.

      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 on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that A schedule property measuring about 21 cottahas 11 sq.ft. of land situated at Mouza Serampore C.S. & R.S. plot no. 7187   7188   7189   7190 and 7245 within the ambit of Serampore Municipality vide holding no. 11 G.T. Road   Serampore is the subject matter of this case.
2. It is also admitted fact that the said property is also known as “Panchu Babur Bazar”.
3. There is no controversy over the issue that op no. 1 developed the said property and constructed multistoried building over the said property.
4. There is no dispute over the issue that op no. 1 formulated a scheme for construction of multistoried building comprising of godwon   flats and shop rooms etc.
5. It is admitted fact that the flat in question which is also subject matter of this case has been described as B schedule property.
6. It is also admitted fact that op no. 1 is a partnership firm.
7. There is no controversy over the issue that Sri Raja Ram Roy s/o Late Nemo Roy of 21   Dr. P.N. Mukherjee Street   Serampore   Hooghly is a partner of the said partnership firm.
8. There is no dispute over the issue that Mr. Chandrika Pasi s/o Late Ramsakal Pasi of Golabari Howrah is also a partner of the said partnership firm.
9. It is admitted fact that Smt. Savitri Devi Pasi w/o Chandrika Pasi s/o Late Ramsakal Pasi of Golabari Howrah is also a partner of the said partnership firm.
10. It is also admitted fact that the op no. 1 had made publication for selling the flats   shop rooms   garage spaces of the said multistoried building.
11. There is no controversy over the issue that as per record the complainant was the intending purchaser of a flat which is described in the B schedule property.
12. There is no dispute over the issue that as per record the op no. 2 entered into a development agreement with op no. 1 on 28.10.2003.
13. It is admitted fact that according the materials of this case record a general power of attorney dt. 5.8.2004 was executed.
14. It is also admitted fact that the said general power of attorney was notarized by the notary public Serampore.  

Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

          But facts remains that this District Commission after making scrutiny of the evidence on record submitted by both sides finds that on the following points the parties of this case are differing and/ or the parties have their apple of discord in respect of the following matters

1. The op has adopted the defence alibi that the complainant is a partner of the partnership firm of Mahakaleswar construction but over this issue the complainant is totally denying this matter.
2. As per defence alibi adopted by the ops the complainant has invested Rs. 1  00  000/- in the said partnership firm as capital in the partnership business but in this matter the complainant side has totally adopted the opposite views.
3. The op side also adopted the defence plea that the complainant invested the above mentioned money in the year 2005 through cheque but the complainant side has totally denied it.
4. The op side has taken the defence case that the complainant did not carry on the said partnership business as a result the complainant dissolved the said partnership but regarding this matter the complainant has totally denied this fact.
5. As per defence case the op no. 1 has refunded the amount of Rs. 1  00  00/- to the complainant by issuing cheque but the complainant side has totally oppose this issue.

Now the question is how far the above noted defence plea and / or defence alibi is acceptable. Regarding this issue the provisions of Section 69 of the Partnership Act is playing a vital role wherefrom it appears that the  op has no right to challenge the above noted matter as the said partnership firm is not a registered partnership firm. Thus   it is crystal clear that the questions raised by the op side as defence alibi cannot be accepted. Moreso   the op has totally failed to prove that the cheques issued by op no. 1 in favour of complainant   has been issued with a view to refund of capital of the partnership firm which is invested by the complainant. Moreso   there is no cogent document to show that the partnership has been dissolved.

On the background of the above noted position the vital question which is revealed in this case is whether non delivery of possession of the flat (B schedule property of this case) and non execution and non registration of the deed of conveyance is a deficiency of service or not? In this regard it is the settled principle of law that delay in delivery of possession of the property is a deficiency of service. This legal principle has been adopted by National Commission in the case of Prashant Telkar and Vijeta Kalghatgi & 51 ORS. Vs. ND Developers PVT. LTD. &  ORS. and it is reported in  I (2023) CPJ 1(NC).

A cumulative consideration of the above noted discussion goes to show that the complainant has proved his case in respect of all the points of consideration adopted in this case and so he is entitled to get relief in this case which has been prayed by him.

In the result it is accordingly

ordered

that the complaint case being no. 183 of 2016 be and the same is allowed on contest but in part against ops of this case.

It is held that the complainant is entitled to get a direction upon the op for handing over the flat (B schedule property of this case) and to executed and register the deed of conveyance in this respect and complainant is also entitled to get compensation of Rs. 1  00  000/- from the ops and also entitled to get litigation cost of Rs. 10  000/- from the ops.

Opposite parties  are directed to  carry out the above noted direction within 45 days from the date of this order otherwise 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 parties 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.