In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/188/2019.
Date of filing: 11/12/2019. Date of Final Order: 03/04/2024.
Sri Anjit Kumar Barman,
s/o Late Debendra Barman,
147, Ramal Dutta Road,
P.O. Bhadrakali, P.S. Uttarpara,
Dist. Hooghly, PIN. 712232. …..complainant
vs -
- Mr. Jayanta Kumar Basak,
s/o Late Girindra Narayan Basak,
147, Ramal Dutta Road,
P.O. Bhadrakali, P.S. Uttarpara,
Dist. Hooghly, PIN. 712232, WB...….opposite party
- The Manager (Operation),
L.I.C. Housing Finance Led.
4, Chittaranjan Avenue, Kolkata- 700012.…..opposite party (amend)
Before: President, Shri Debasish Bandyopadhyay.
Member, Debasis Bhattacharya.
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 complainant entered into an agreement for sale with the OP-1 (vendor) on 31.3.2015, duly notarized on 06.10.2015 for purchase of 607 sq.ft. area of residential flat on first floor, flat no.202 lying and situated at “Ganapati Apartment”147, Ramlall Dutta Road, Bhadrakali, P.O-Bhadrakali, Dist-Hooghly PIN-712232 with a consideration money of Rs.716600/- only payable within four years from the date of execution of the said agreement by paying Rs.150005/- as earnest money or advance. It was agreed in the said agreement that the OP-1 will receive Rs.150005/- on the date of sign the agreement and was duly paid the amount Rs.150005/- to OP-1 issuing of two cheques drawn in favour of him. As per clause no.2 of the said agreement the said flat was incomplete and was required to be furnished, as such the price of the said flat was determined of Rs.666600/- only and as per the agreement clause no.3 the complainant himself finished the pending work of the said flat on his own cost and made it ready condition before occupation.
As per clause no.4 of the said agreement additional of Rs.50000/- was deposited to the OP-1 and time allowed for four years. Accordingly the complainant deposited the said amount to OP-1 by way of cheque. The complainant has paid to OP-1 amounting to Rs.200005/- by cheques, Rs.20000/- in cash renovation expenses incurred Rs.244161/- till date. It has come to the notice of the complainant the said flat was under mortgaged with the Life Insurance Corporation of India, Kolkata, and on 11.11.2019 the complainant made a representation to the OP-1 stating the fact that the petitioner wants to vacate the flat and demanded to refund the money paid to him along with the expenses incurred by him for renovation the said flat alongwith accumulated interest thereon in terms of agreement clause no.11 to 14 of the aforesaid agreement. A copy of the said letter forwarded to the OP-2 for information. The said letter was received by the OP-1 on 13.11.2019 and the OP-2 on 13.11.2019 but unreplied. It has specifically mentioned in the said agreement that “Vendor hereto have peaceful khas possession and enjoy all the right, title and interest of the aforesaid property or without any hindrance or interruption and free from all encumbrances and attachments whatsoever ….”.
The complainant on 22.4.2017 on being aggrieved after much persuasion and verbal requests send a representation to the Manager Operation, Life Insurance Corporation of India, stating the facts and incidents arise in respect of ownership of said flat informed the mater which was received by the said office on 22.4.2017 under sign official seal and date but remain unreplied. Petitioner on 31.5.2017 forwarded a written complaint /statement to the Officer-in-Charge, Uttarpara Police Station stating the fact alongwith unwanted series of harassment and to inflicted the complaint in to a false cases with a view to step side.
On 21.11.2019 the complainant through his ld. advocate served a legal notice, asking OP-1 to make payment to the complainant, amounting to Rs.828611/- within 15 days from the receipt of the legal notice The said notice was delivered to OP by the Postal Authority on 22.11.2019.
The petitioner state that OP having both the representation dt. On 11.11.19 & 21.11.19 stated to disturb the complainant, by using filthy languages life threatening and restricted the movement of the complainant within the flat compound to family members, aiming to dislodge the complaint from the flat voluntary, OP did not reply of the both representations.
Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs. 828611/- for renovation cost of flat and interests and to pay a sum of Rs.200000/- for cheating and malpractices and for interest @ 18 % and to pay a sum of Rs.10000/- for litigation cost and to pay a sum of Rs.10000/- for deficiency in service and trade practice.
Defense Case:- The opposite party Nos. 1 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that as per the point no.7 of deed of agreement dated 31.3.2015 by and between the complainant and OP-1 it is clearly mentioned that “the balance of the consideration money shall be paid by the purchaser of Rs.50000/- on every six month and complete the total consideration price of Rs.716600/- within four years from the date of 31st March 2015 subject to other terms and conditions here under contained. Time shall for this purpose be deemed to be the essence of contract”. But the complainant did not clear the dues within stipulated time as mentioned in the above mentioned deed of agreement. Moreover the complainant trying to grab and possess the said flat by illegal means, therefore no question of failure or negligence on the part of the OP-1.
It is mentioned here that the OP-1 being an honest person believe the wards of the complainant and accepted two cheques of Rs.98000/- and 52005/- and gave the physical possession of the flat to the complainant. But the complainant after taking possession did not pay the rest amount towards the consideration amount of the flat and trying to embezzle the due amount and with ulterior motive harass the answering OP by hook or crook. Therefore the prayer of the complainant should be dishonoured because the complainant filed it to fulfill ill motive of the complainant.
The instant case is liable to be rejected with heavy 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 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 is a resident 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 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. 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 the complainant is in possession of the said flat for a long time and inspite of getting sufficient opportunity the complainant has neither paid the balance consideration amount to the OP-1 nor had taken any steps for execution and registration of the deed of conveyance. This matter is clearly reflecting that there is a gross negligence and fault on the part of the complainant. Moreso the complainant has suppressed this fact in the petition of complaint as well as in the evidence on affidavit. It is crystal clear that the complainant has not come before this District Commission in clean hand and so the complainant is not entitled to get any equitable relief in this case from this District Commission. It is also important to note that the complainant has adopted the plea that he has cancelled the agreement and he has not interested to proceed with the agreement for sale but it is very surprising to observe that the complainant is still in possession of the said flat. But the complainant has not made any whisper as to whether he would surrender the possession of the said flat in favour of the OP-1. Moreover, the complainant at one hand claiming cancellation of the agreement for sale but on the other hand the complainant is remaining silent about payment of occupational charges in respect of the said flat. In this regard it is the settled principle of law a person cannot approbate or reprobate at the same time. This matter is clearly reflecting that the complainant has not come before this District Commission in clean hand. So complainant is not entitled to get any equitable relief in this case.
On close examination of the material of this case record it is found that the complainant has not claimed any relief against OP-2. In this regard it is also important to note that the complainant has also failed to establish his case against OP-1&2.
A cumulative consideration of the above noted discussion goes to show that the complainant has failed to establish his case in respect of points of consideration no.4&5 who are the vital issues of this case. For that reason the complainant is not entitled to get any relief in this case.
In the result it is accordingly
ordered
that this complaint case being no. 188 of 2019 be and the same is dismissed on contest.
No order is passed as to cost.
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.
