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 for development of the said property by constructing multistoried building which is mentioned in schedule of complaint   the Opposite Party No. 3 & 4 entered into an agreement with the Opposite Party No. 1  & 2 on 27.06.2006 and also executed  a General power of attorney on 30.06.2006  by giving power to the Opposite Party No. 1 & 2 for the same and thereafter the opposite parties proposed and assured to the  complainant that after development of the said property by constructing multistoried building there will be execution and registration of Deed of Sale of the  said shop room mentioned in the schedule below in favour of the Complainant and the Complainant with a view of such proposal entered into an Agreement on 27.06.2008 with the Opposite Parties which is duly signed and executed by the Opposite Party No. 1 and 2   who during that time handed over to the complainant photocopy of one General Power of Attorney and one  agreement and the O.P. No 1 and 2 assured the Complainant that on the strength of the Power of Attorney dated 30.06.2006 they   having the authority to represent the O.P. No. 3 and 4   was signing the agreement for them self and also for the O.P. No. 3 and 4 and as per terms of the agreement the opposite parties are bound to execute and register of Deed of Sale of the shop room in favour of complainant   which is mentioned in schedule of complaint and since after the execution of the said agreement complainant repeatedly requested to the op to execute and register deed of sale of the shop room mentioned in the schedule below in favour of the complainant.  But on each and every occasion ops deferred the matter on this or that pretext including the physical discomfort and illness of them and the ops with strong assurance that the agreement for sale shall be acted upon and they will complete the sale by executing and register the sale deeds in favour of the complainant as and when they get relieved from their personal problems and the complainant honestly believed the ops on good faith and the op also received of Rs. 10  000/- only on 07.03.2009 through cheque vide cheque no. 841133 (United Bank of India) from the complainant for execution and registration of deed of sale for the shop room in favour of the complainant   which is mentioned in schedule of complaint and the complainant requested to the ops a number of times for execution and registration of deed of sale in favour of the complainant but the ops paid no heed to such requests of the complainant for reasons best known to them and thereafter send letter addressing to the ops vide letter dated 27.11.2017 and on 23.12.2017 to addressee no.1 and 2 with the same request and the complainant thereafter started to wait for the response of the ops   but in vain and thereafter finding no other alternative the complainant finally send a advocate notice through his Ld. Advocate addressing to the ops vide letter dated 17.7.2018 with the same request.

Complainant filed the complaint petition praying direction upon the opposite parties to execute and register the deed of sale of the said shop room mentioned in the schedule below and to pay a sum of Rs. 100  000/- for mental agony   anxiety and harassment of the complainant for the unlawful activities   deficiency in service and unfair trade practice and to pay a sum of Rs.20  000/- for cost of litigation.

Defense Case:-The opposite party Nos. 3 & 4 contested the case by filing written version denying inter-alia all the material allegation as leveled against them.  The petitioner is a tenant under the ops no.3 & 4 in his property mentioned in schedule mentioned and is doing business in a shop room situated in schedule mentioned.  But the petitioner having ill motive never used to pay rent regularly.  The OP no.3 & 4 executed a power of attorney in favour of op no.1 & 2 in respect of the property mentioned in the schedule mentioned.  As per the clauses of the said power of attorney   the op no.1 & 2 sold flats as promoters and developers and developers   developed in the schedule mentioned property to the prospective buyers as promoters and developers.  The OP no. 3 and 4 have never conveyed his willingness orally to the petitioner nor did ever execute any deed in this regard that he would sell the schedule mentioned property with registered deed in favour of the petitioner.  With the sole malafide intention of harassing the op no.3 & 4. The instant ops no. 3 & 4 have never accepted Rs.10  000/- as consideration money for selling the schedule mentioned property with registered deed and never even agreed orally to do the same though the petitioner has already been replaced by the OP no. 1 & 2 in the schedule mentioned property   the petitioner is illegally carrying on business of wood (furniture) therein and thus he is obstructing the people from coming or going in respect of the schedule mentioned property and also is creating associated problems for obstructing in such manner.  It is to be mentioned here that   as the ops no. 3 & 4 have already executed a power of attorney in favour of op no. 1 & 2 to sell the flats and shops situated in schedule mentioned property. The instant ops no.3 & 4 have no right to execute registered sale deed in instant ops no.3 & 4 have no right to execute registered sale deed in respect of the shop room situated in schedule mentioned in favour of the petitioner   as because the aforementioned power of attorney is in force till present day and it had neither been repudiated nor cancelled.  Due to the abovementioned legal state of affairs   it is not possible for the ops no.3 & 4 to execute a registered deed of sale in favour of the petitioner in respect of the said shop room.  If the op no.1 & 2 executes registered deed of sale in favour of the petitioner in respect of the schedule mentioned property   then the ops no.3 & 4 have no objection and he would not create any hindrance in such transfer   rather he would extend all possible cooperation in this regard and for the above described state of affairs from the legal context   the instant case is not tenable against the OPs no.3 & 4 and is liable to be dismissed against the instant ops no.3 & 4.

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 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 and ops are residents 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 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   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 op nos. 3 and 4 entered into a development agreement with op nos. 1 and 2.
2. It is also admitted fact that the said development agreement was executed on 27.6.2006.
3. There is no controversy over the issue that one general power of attorney for giving power was also executed on 30.6.2006.
4. There is no dispute over the issue that the op nos. 3 and 4 was intending for selling shop room and residential flats to the intending purchasers.
5. It is admitted fact that op nos. 1 and 2 assured the complainant for execution and registration of deed of sale in respect of one shop room which has been described in the schedule of the complaint petition in favour of the complainant.
6. It is also admitted fact that that thereafter the complainant with a view of such proposal entered into an agreement with ops on 27.6.2008 which was duly signed by op nos. 1 and 2.
7. There is no controversy over the issue that op nos. 3 and 4 also signed the said agreement and agreed to execute and register sale deed in respect of the shop  room of the schedule mentioned property to the complainant.
8. There is no dispute over the issue that the ops have not yet executed and registered any sale deed in respect of the said shop room in favour of the complainant.
9. It is admitted fact that ops received Rs. 10  000/- from the complainant.
10. It is also admitted fact that the complainant had paid the said money on 7.3.2009.
11. There is no controversy over the issue that the said amount of Rs. 10  000/- was paid by cheque vide no. 841133 of United Bank of India.
12. There is no dispute over the issue that the complainant thereafter issued letter dt. 27.11.2017 to the ops for execution and registration of the sale deed.
13. It is admitted fact that thereafter the complainant had sent a Lawyer  s notice to the ops on 17.7.2018 with request for execution and registration of the sale deed in respect of the shop roomwhich has been mentioned in the schedule of the complaint petition.
14. It is also admitted fact that the ops had not given any reply against the said Lawyer  s notice sent by the complainant.
15. There is no controversy over the issue that the complainant was in possession of the shop room prior to the development of the suit property. 

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.

On the background of the above noted admitted  facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant has adopted the plea that the ops inspite of having agreement of providing a shop room to the complainant has failed and neglected to provide the said shop room which is definitely a deficiency of service but on the other hand the ops adopted the defence alibi that the complainant was enjoying the shop room prior to the development of the property and making construction of the multistoried building   under the op nos. 1 and 2 and so the op nos. 3 and 4 who are the promoter developer are not at all bound to provide or allot any shop room to the complainant in the said building.

            For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords this District Commission after going through the evidence on record finds that the op nos. 1 and 2 who are the actual owner of the suit property entered into development agreement with op nos. 3 and 4 and at that point of time of entering into development agreement the complainant had his shop room in the original property and inspite of having knowledge of that the op nos. 3 and 4   who are the promoter developer entered into development agreement with op nos. 1 and 2. In view of the said development agreement there is contractual obligation of the ops in the matter of providing shop room which has been mentioned in the B schedule property of the complaint petition to the complainant. But facts remain that the ops have not yet allotted any shop room to the complainant in the A schedule property of the complaint petition and it amounts to deficiency of service on the part of the ops.

            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 for that reason the complainant is entitled to get relief which he has prayed in this case.

In the result it is accordingly

ordered

that the complaint case being no. 165 of 2018 be and the same is allowed on contest but in part.

            It is held that the complainant is entitled to get the shop room which has been described in the B schedule property in the complaint petition and ops are directed to allot and hand over possession of the said shop room (B schedule property of the complaint petition) to the complainant and to execute and register sale deed within 45 days from the date of this order. It is also held that the complainant is entitled to get compensation of Rs. 20  000/- from the ops and litigation cost of Rs. 5000/- from the ops and the ops are directed to pay the said amount equally to the complainant within 45 days from the date of this judgement 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.