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 the complainant entered into an agreement for sale with the op nos. 1 and 2 for the schedule mentioned flat property on 4.6.2013 for Rs. 1,50,000/- paid through different cheques being nos. 851671 of the State Bank Of India and 073846 of the State Bank Of India out of total consideration money of Rs. 12,44,400. In the said agreement for sale  the stipulated time for the completion of the schedule below mentioned flat property was six months from the date of agreement for sale entered into on 4.6.2013. But the ops neither completed the said schedule mentioned flat property in the stipulated time nor delivered the peaceful possession of the said schedule mentioned flat property in favour of the complainant. The complainant asked by the ops to pay more money towards consideration but the working and measurement of the said schedule mentioned flat property was not at all done as per agreement for sale. Then after promising of quick progress of construction work the complainant paid the said money towards consideration. Being aggrieved by such approach by the ops the complainant severally requested the ops to return the advance payment of Rs. 1,50,000/- paid at the time of entering into the agreement for sale but all in vain.

Complainant filed the complaint petition praying direction upon the opposite parties to pay a sum of Rs. 1,50,000/- with 9% interest and to pay a sum of Rs. 1,00,000/- for mental agony and to pay a sum of Rs. 50,000/- for litigation cost.

Defense Case:-The opposite party Nos.1 to 3 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the complainant approached the ops for booking the said flat and an agreement for sale was executed between the parties wherein the rate was fixed @ Rs. 1700/- per sq.ft. for 732 sq.ft. in total consideration of Rs. 12,44,400/-. But at the time of booking the complainant only paid Rs. 1,50,000/- and Rs. 10,94,400/- was still due. Inspite of repeated reminders and requests the complainant failed to pay the balance due amount though the proposed flat was completed within time. Op nos. 2 and 3 times without number visited the complainant and requested him to pay his balance due or otherwise take refund of his advance money after statutory deduction but the complainant took time on different pretexts. Then the op nos. 2 and 3 send legal notice asking the complainant to pay his balance amount but complainant neither send any reply nor paid his balance due. Thereafter op nos. 2 and 3 repeatedly send reminders over telephone to come and settle his long pending issues but all in vain. Ultimately op nos. 2 and 3 send letter to the complainant through his ld. Advocate and offered him option either to pay his balance amount or to refund his advance amount after statutory deduction within 7 days from date of receipt of the said letter and in default the ops will sell the property to any third party. But the complainant did not turn up. Then the ops sold the said flat to Goutam Kumar Singh in much low price as advanced with the complainant.  So  the instant case is liable to be dismissed with costs against ops.

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 non-maintainability 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 Serampore  Hooghly and ops have their place of business at Singur and Serampore  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  1986 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 the complainant was interested to purchase one flat measuring about 750 sq.ft. from op nos. 1 and 2.
2. It is also admitted fact that in this regard the complainant entered into an agreement for sale with op nos. 1 and 2 in respect of the said flat which has been mentioned in the schedule of the complaint petition.
3. There is no controversy over the issue that the said agreement for sale was executed on 4^th June  2013.
4. There is no dispute over the issue that the complainant had paid Rs. 1,50,000/- to the ops as advance money.
5. It is admitted fact that the said amount of Rs. 1,50,000/- has been paid by different cheques being no. 851671 and 073846 of State Bank of India.
6. It is also admitted fact that the total consideration money in respect of the said flat which is mentioned in the schedule of complaint petition was Rs. 12,44,400/-.
7. There is no controversy over the issue that the said flat has not been delivered and/ or handed over possession to the complainant prior to the filing of this complaint case.
8. There is no dispute over the issue that no deed of conveyance has been executed and registered in respect of the said flat.
9. It is admitted fact that the complainant has not paid the balance consideration money in respect of the said flat.
10. It is also admitted fact that the ops had sent legal notice to the complainant for payment of the balance consideration money of Rs. 10,94,400/-.
11. There is no controversy over the issue that the ops also requested the complainant to take back the advance money of Rs. 1,50,000/- from the ops.
12. There is no dispute over the issue that the said advance money of Rs. 1,50,000/- has not been received by the complainant prior to the intuition of the complaint case.
13. It is admitted fact that the complainant has not given any reply in respect of the legal notice given by the ops to the complainant.
14. It is also admitted fact that the ops finally has transfer the said flat to Sri Goutam Kumar Singh.                 

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 have failed to construct the building within time and was not interested to hand over the said flat to the complainant and for that reason the ops have committed negligence and deficiency of service but on the other hand the ops are adopted the defence alibi that the complainant have not paid the balance consideration money of Rs. 10,94,400/- to the ops inspite of repeated demands and inspite of sending legal notice to the complainant that he has not paid the balance consideration money to ops and the ops were interested to repay the advance money to the complainant but the complainant has not intentionally received the said amount of Rs. 1,50,000/- and for that reason the ops are claiming that they have no deficiency of service or negligence on their part.

            For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords and also in the matter of deciding the fate of points of consideration nos. 4 and 5 which have been adopted in this case this District Commission after going through the evidence on record finds thatthe ops have not yet repaid the advance amount of Rs. 1,50,000/- to the complainant. Now the question is whether complainant is entitled to get back the advance money of Rs. 1,50,000/- or not? In this regard it is the settled principle of law that the District Commission has the power to direct refund of amount and to compensate a consumer for deficiency of service. This legal principle has been observed by Hon ble Apex Court in the case of Ghaziabad Development Authority vs. R.B. Sharma and it is reported in 2004 (3) CPR 92. Similar view has been taken by Hon ble Apex Court in the case of Experion Developers Pvt. Ltd. vs. Sushma Ashok Shiroor and it is reported in AIR2022SC1824.

Thus  it is crystal clear that the complainant is entitled to get the refund of advance money of Rs. 1,50,000/- from the op nos. 1 and 2 along with interest @ 9% per annum.

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 so he is entitled to get relief in this case which has been prayed by him.

In the result it is accordingly

ordered

that the complaint case being no. 63 of 2019 be and the same is allowed on contest but in part against op nos. 1 and 2.

It is held that complainant is entitled to get the refund of advance money of Rs. 1,50,000/- from the op nos. 1 and 2 along with interest @ 9% per annum. It is also held that the complainant is also entitled to get compensation of Rs. 20,000/- and litigation cost of Rs. 5000/- for deficiency of service on the part of op nos. 1 and 2 and litigation cost from op nos. 1 and 2.

Opposite party nos. 1 and 2 are directed to pay the aforesaid amount equally within 45 days from the date of this order 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 party nos. 1 and 2 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.