In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/139/2022.
Date of filing: 30/06/2022. Date of Final Order: 26/12/2023.
Sri Shyamal Kr Das
S/o Late Provas Kr. Das,
Vill-Benepara, P.O&, P.S—Pandua,
Dist-Hooghly, PIN-712149 - Petitioner -Vs
Md. Alauddin,
S/o Late Md. Mohosin
Vill-Balihatta, P.O & P.S-Pandua,
Dist-Hooghly, Pin-712149 Opposite Party.
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 The petitioner purchased a flat super build up area 703.57 sq. ft. and its cover area 586.30 sft. Including the easement right common passage in 4thfloor which is fully described in schedule mentioned by deed of resister sale deed being no.0616056 for the year 2021 of ADSR Office, Pandua, Hooghly from the OP on consideration Rs.800000/- only. The said deed written as per the instruction of OP on 10.12.2021 and the same date it was executed by him in presence of the witness after taking full consideration the sum of Rs.800000/- only from the petitioner and it was registered after observing all formalities of the registration act of rules.
Before registration the OP further took the sum of Rs.26000/- only from the petitioner for inside and outside for fixing electricity and water pipe line installation in the flat, but he did not deliver physical possession to the complainant. That after registration of the deed the petitioner demand the key of the flat but he assured, the possession should be given on the date when he shown the complete the registry deed. The said registry deed was delivered on 20.12.2021 from the registry office and after taking the same the petitioner went to the OP and demand of the possession of the flat but he avoid on several pretext. The petitioner on several occasion demanded possession of the said property, but he did not care of it. There was no other alternative the complainant bound to serve a legal Notice on 02.06.2022 through speed post, it was delivered on 3.6.22 upon the OP. The OP did not comply the direction of the Notice dated.02.06.2022 and not gave any reply.
Complainant filed the complaint petition praying direction upon the opposite party to make deliver of khas possession of the flat and to pay a sum of Rs. 100000/- for harassment in convenience, frustration and mental agony and to pay a sum of Rs.2000/- only for cost of legal notice.
Defense Case:- The opposite party contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the OP submits that on 10.12.2021 the complainant was put into possession of the flat by this OP. Till this date the complainant is in possession of the flat in question.
The complainant paid to this OP Rs.360000/- as part of consideration of the flat out of total consideration of 8 lakhs. The complainant promised to make the residue amount after transferring a piece of land in favour of the OP. Till this date complainant neither transferred any land in favour of this OP nor paid the remaining amount of Rs.4 lakhs 40 thousand. The application u/s 35 of consumer protection act, is liable to be dismissed with 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 and denial of the written version of the opposite party.
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. It is the settled principle of law that failure of the Insurance Company to comply with the contractual obligation to release claim amount in deficiency in service. This legal principle has been laid down by Hon’ble State Commission, Delhi and it is reported in 2022 (2) CPR 13 (Del).
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:
- It is admitted fact that the complainant / petitioner purchased the schedule mentioned flat of the complaint petition measuring area of 703.57 sq. ft. and it is covered area 586.30 sq. ft.
- It is also admitted fact that the description of the said flat has been described in the registered sale deed of the year 2021.
- There is no dispute over the issue that the registered sale deed in respect of sale of the said flat has been executed in between the parties.
- There is no controversy over the issue that the said registered sale deed bearing no.0616056 of the year 2021 was registered and executed in the ADSR office, Pandua, Hooghly.
- It is admitted fact that the total consideration money in respect of the said flat was / is Rs.800000/-.
- It is also admitted fact that the OP received the entire consideration money of Rs.800000/- from the complainant.
- There is no dispute over the issue that the complainant also had paid a sum of Rs.26000/- to the OP for fixing electricity, plumbing works etc.
- There is no dispute over the issue that even after the execution and registration of the sale deed the complainant has not yet received possession of the said flat from the OP.
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 adopted the plea that inspite of execution and registration of the sale deed the OP has not delivered possession of the flat to the complainant which is clear instance of unfair trade practice and deficiency of service but on the other hand it is defence alibi that complainant has already been put into possession of the said flat on 10.12.2021 by the OP and so there is no negligence, unfair trade practice or deficiency of service on the part of the OP.
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 in respect of their point of contention that complainant has already given possession of the said flat on 10.12.2021, the OP has not taken any steps for conducting either local inspection commission or local investigation commission. So it is crystal clear that the OP has miserably failed to prove his case.
A cumulative consideration of the above noted discussion goes to show that the complainant has proved her case in respect of all the points of consideration adopted in this case and for that reason the complainant is entitled to get relief in this case in respect of all the points of consideration.
In the result it is accordingly
ordered
that the complaint case being no. 139 of 2022 be and the same is allowed on contest but in part.
It is held that the complainant is entitled to get a decree of direction of handing over possession of the said flat by the OP in favour of the complainant and to submit completion certificate and also to pay compensation of Rs.20000/- and litigation cost of Rs.5000/-.
The Opposite party is directed to hand over Khas Possession of the schedule mentioned flat of the complaint petition to the complainant and to pay compensation of Rs.20000/- and litigation cost of Rs.5000/- within 45 days from the date of this judgment/final order. Otherwise, the complainant is given liberty to execute this judgment/ final order as per law.
In the event of non-compliance of the above noted direction / order the OP shall deposit Rs.5000/- as penalty in the Consumer Legal Aid account of DCDRC, 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.
