West Bengal

Howrah

CC/324/2022

ASTA GOPAL MONDAL, - Complainant(s)

Versus

Md. Salim, - Opp.Party(s)

SURAJIT MITRA,

30 Aug 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION HOWRAH
20, Round Tank Lane, P.O. and P.S. Howrah, Dist. Howrah-711 101.
Office (033) 2638 0892, 0512 Confonet (033) 2638 0512 Fax (033) 2638 0892
 
Complaint Case No. CC/324/2022
( Date of Filing : 08 Dec 2022 )
 
1. ASTA GOPAL MONDAL,
S/o Late Manick Ch. Mondal residing at 13/6/1, Bhola Nath Kabiraj Lane, P.S. Bantra, District-Howrah 711101.
2. GHANTU GOPAL MONDAL,
S/o Manick Ch. Mondal residing at 13/6/1, Bhola Nath Kabiraj Lane, P.S. Bantra, District-Howrah 711101.
3. SMT. SONA GHOSH,
W/o Kaushik Ghosh all are residing at 13/6/1, Bhola Nath Kabiraj Lane, P.S. Bantra, District-Howrah 711101.
4. KRISHNA MOLLICK,
W/o Late Partha Mullick, Residing at 51/52 Bisweswar Banerjee Lane, P.S. Bantra, District- Howrah-711101.
...........Complainant(s)
Versus
1. Md. Salim,
S/o Md. Hanif, Residing at 19, Jola Para Masjid Lane, P.S., P.O. and District- Howrah-711101.
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. Debasish Bandyopadhyay PRESIDENT
 HON'BLE MRS. Minakshi Chakraborty MEMBER
 
PRESENT:
 
Dated : 30 Aug 2024
Final Order / Judgement

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 :-

  1. Has this District Commission  jurisdiction to try this case or not?
  2. Is this case maintainable in its present form  and  in the eye of law or not?
  3. Are the complainants are consumers under the OP or not?
  4. Have the complainants any cause of action for filing this case or not?
  5. 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 ?
  6. 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

 
 
[HON'BLE MR. Debasish Bandyopadhyay]
PRESIDENT
 
 
[HON'BLE MRS. Minakshi Chakraborty]
MEMBER
 

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