Presented by: -
Shri Debasish Bandyopadhyay, President.
Complaint Case No. 324/2022
The complainants have instituted this case against the OP (Promoter / Developer) for passing direction to pay compensation of Rs. 1,50,000/- alongwith litigation cost and also for passing direction delivery of possession letter in favour of the complainants alongwith other reliefs.
Fact of this case
Case of the complainant -
The case of the complainant which is deciphered from the petition of complaint in bird’s eye view is that the complainants are land owners in respect of A schedule property and their deemed to be the flat owners of “B”, “C”, “D”, “E”, “F” schedule residential flat of the multi storied building situated at 13/6/1, Bhola Nath Kabiraj Lane, P.S. Bantra, Dist. Howrah and the OP is a Promoter/ Developer and the complainants had hired the service of the OP for construction / development of the project at above noted premises subject to the above noted “B”, “C”, “D”, “E”, “F” schedule residential flat alongwith related services the complainants alongwith legal heirs of deceased Manick Ch. Mondal executed and registered Development Agreement in respect of the above noted schedule mentioned property ( A schedule property) in favour of OP and the said Development Agreement was registered before the DSR, Howrah and OP had undertaken to construct multi storied building consisting of several residential flats alongwith allied services and the Promoter/ Developer (OP of this case ) accepted to provide service by constructing the multi storied building and to hand over the schedule mentioned flats to the complainants. It is submitted that the Op has handed over to the complainant Nos 1, 2 & 3 unfinished residential flat in respect of “B”, “C” & “D” schedule flats and it is evident that the agreement has been partly acted upon by the OP. It is alleged that on several occasions the complainants had requested the OP / Developer for completion of unfinished work and to deliver possession letter in favour of the complainants but the OP have not paid any heed to the request of the complainants. It is pointed out that the failure on the part of the OP to deliver possession letter transfering the right, title, interest of the above noted flats in favour of the complainants is undoubtedly a deficiency of service and unfair trade practice . It is asserted that the complainant by their letter dtd. 01.03.2022 requested the Op for completion of the unfinished work and to hand over possession letter and the said letter of the complainants was duly received by the OP but the OP has not taken any steps in the matter of delivery of the possession letter. Being aggrieved and dissatisfied with the activities of the OP the complainants have come forward before this District Commission and filed this case according to the provisions of Section 35 of the Consumer Protection Act, 2019 according to the prayer of the complainant.
Defence Case:- The OP in spite of receiving notice has neither appeared nor contested this case by filing W/V. As a result of which this case has been proceeded ex-parte against the OP.
Points of consideration
On the basis of the pleadings of the parties this District Commission for the interest of arriving at just and proper decision and also for determination of the fate of this complaint case is going to frame the following points of consideration :-
- Has this District Commission jurisdiction to try this case or not?
- Is this case maintainable in its present form and in the eye of law or not?
- Are the complainants are consumers under the OP or not?
- Have the complainants any cause of action for filing this case or not?
- Whether the complainants are entitled to get the direction upon the OP for handing over delivery of possession letter and also to pay compensation to the tune of Rs. 1,50,000/- and litigation cost or not ?
- To what other relief / reliefs are the complainants are entitled to get in this case?
Evidence on record
In this case the complainants have filed their evidence on affidavit in support of their point of contention but the OP has not filed any interrogatories as the OPs is not contesting in this case. Similarly, to disprove the case of the complainant the OP also has not filed any evidence on affidavit .
Argument highlighted by both the parties
The complainant side in course of argument have filed BNA and in addition to the filing of BNA, the complainant side has also highlighted their verbal argument laying emphasis upon the oral and documentary evidence.
Decision with reasons
The first four points of consideration are containing vital issues and these are related with one another . For that reason and also for the interest of convenience of discussion all these four points of consideration are clubbed together and taken up for discussion jointly.
For the interest of deciding the fate of the above noted four points of consideration, there is urgent necessity of making scrutiny of the material of this case record.
This District Commission after going through the material of this case record finds that both the complainants and OP are the residents of district of Howrah and place of occurrence of the incident is also situated within the district of Howrah. Thus, it is crystal clear that this District Commission has its territorial jurisdiction to try this case. In this regard, it is important to note that the total claim of the complainants are far below Rs. 50,00,000/- which is the schedule pecuniary jurisdiction of this District Commission. When the claim of the complainants is below Rs. 50,00,000/-, it is crystal clear that this District Commission has its pecuniary jurisdiction to try this case.
The next point of which has been adopted for consideration is related with the maintainability issue. In this connection this District Commission after going through the material of this case record finds that the Development Agreement has been executed and registered in between the complainants and OP but the OP has partly carried out the terms & conditions of the Development Agreement and the residential flats which are required to be handed over to the complainants are in incomplete condition. This factor is clearly depicting that the complainant has clear the cause of action for filing this case and this case is also maintainable. The next point of consideration which is involved in this case is related with the question whether the complainants are the consumers under the OP or not? In this regard, it is revealed from the evidence on record that the complainants and other legal heirs of deceased Manick Ch. Mondal executed and registered one Development Agreement in favour of the OP to promote and develop the Premises No. 13/6/1 Bholanath Kabiraj Lane, P.S. Bantra, Dist. Howrah. It is also reflected from the evidence on record that the OP has handed over three flats in favour of complainant Nos. 1, 2 & 3 in incomplete condition. Other complainants have not yet received the delivery of possession in respect of their flats which have been described in schedule “ D, “E” & F” . All these factors are clearly reflecting that the complainants are consumers under the OP.
Recapitulating the above noted discussion this District Commission finds that this case is maintainable and this District Commission has its territorial and pecuniary jurisdiction to try this case and the complainants have cause of action for filing this case and the complainants are consumers under the OP in the eye of law. Thus, the above noted four points of consideration are disposed of in favour of the complainants.
The point of consideration No. 5 is related with the question as to whether the complainants entitled to get an award directing the OP to deliver possession letter or not and whether the complainants are entitled to get compensation to the tune of Rs. 1,50,000/- and litigation cost or not?
The point of consideration No. 6 is connected with the question whether the complainants are entitled to get any other relief / reliefs in this case from the OP or not?
For the purpose of arriving at just and proper decision in connection with the above noted two vital issues, there is urgent necessity of making scrutiny of the oral and documentary evidence on record. After going through the material of this case record this District Commission finds that in this case the complainants in order to prove the case has filed evidence on affidavit but the OP in spite of getting sufficient opportunity has not filed any interrogatories against the said evidence on affidavit of the complainants. Thus, it is crystal clear that the evidence which has been given by the complainant remains unchallenged and / or uncontroverted . There is no reason to disbelieve the unchallenged and uncontroverted testimony of the complainant side. From the unchallenged and uncontroverted testimony of the complainant side it is crystal clear that the OP has handed over the residential flats to the complainants but in incomplete condition and the OP has also not delivered possession letter. This factor is clearly depicting that the complainants are entitled to get the direction upon the OP to hand over possession letter and also entitled to get compensation and litigation cost.
In the result, it is accordingly
ORDERED
That this complaint case being No. 324/2022 be and the same is allowed ex-parte but in part.
It is held that the complainants are entitled to get an award directing the OP to deliver possession letter within 45 days from the date of passing of this judgment / final order and the complainants are entitled to get compensation amounting to Rs. 50,000/- and litigation cost of Rs. 10,000/-
The OP is directed to hand over the possession letter to the complainants within 45 days from the date of passing of this judgment / final order to pay the compensation of Rs. 50,000/- and litigation cost of Rs. 10,000/- to the complainants within 45 days from the date of passing of this judgment / final order . Otherwise 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