This is a consumer complaint case U/S 17 of CP Act 1986.

The fact of the case is nutshell is that both complainants Jagannath Sinha and his wife Nibedita Sinha entered into an agreement with opposite parties on 23/05/2012 to purchase of a flat measuring about 1300 sft. in flat No. 6/1 on the 6^th floor in a G+6 storied building at 113/149, Mokdumpur, P.S. English Bazar, Dist. Malda, within the local limits of ward no. 02 of English Bazar Municipality at a total consideration of Rs. 29 lakhs and paid a sum of Rs. 12,50,000/- (Rs. Twelve lakh Fifty Thousand only) as part consideration. The Opposite parties did not take any measure to rise construction and could not deliver possession as scheduled on 22/05/2014.

Being frustrated complainant under advice of Advocate filed one complaint petition bearing complaint case No. CC/59/2014 at District forum Malda.

The complaint petition was valued at Rs. 31 Lakhs and guided by his counsel’s advice filed the case before district forum Malda.

Surprisingly the Ld. District Forum Malda admitted the complaint petition and with out looking add the claim or pecuniary jurisdiction at any stage of protected proceeding decided the case on merit and passed Judgment in favour of complainant on 28/04/2016.

The OPs challenged the said order before this Hon’ble State Commission in appeal No. A/546/16 and finding substance on the petition Hon’ble State Commission remanded back the matter to District Forum Malda by its order dated 10/08/2017.

As per direction of the Ld. State Commission, West Bengal, The District Forum Malda looked in to the pecuniary jurisdiction and dismissed the complaint case no. 59/2014 with liberty to complainants for filing application afresh within proper jurisdiction by its order date 28/03/2018.

The further case that reliably given to understand that a multistoried building was being constructed as G+6 at Abhirampur (near police line) under E.B.P.S. Malda Ops/ M/S. Kiran Enterprise, contacted one of the partners of M/S. Kiran Enterprise purchasing one flat in the said project.

That accordingly both the intending purchasers i.e., complainant met on the schedule date on 13.05.2012 (Sunday) with the partners of Op No. 1/ Kiran Enterprise and after thorough discussion with them complainants expressed their desire to purchase One flat in the project which was accepted gleefully by the opposite parties.

That in pursuance to the said discussion on 13.05.2012 an agreement was signed between Complainant and opposite parties/ Kiran Enterprise on 23.05.2012 for purchasing One flat measuring 1300 sq.ft. on the 6th floor being flat number 6/1 in a G+6 storied building lying and situate at holding No. 113/149 Mokdumpur, P.S. English Bazar, Dist. Malda within the local limits of ward No. 02 of English bazar Municipality in a total consideration of Rs. 29 lakhs.

Complainant initially paid Rs.7,50,000/- (Seven lakh Fifty Thousand) only to opposite party/ Kiran Enterprise on 22.05.2012 as an advance for booking their flat.

That on further demand by the partners of opposite party complainants again paid Rs. 5 lacs in cash on 27.07.2012 to opposite parties.

That as per agreement date 23.05.2012 the period specified therein for giving peaceful possession and handing over the said flat was within two years from the date of singing the agreement date 23.05.2012 i.e., within period of 23.05.2014.

The complainant met the partners of opposite party on 25.04.2014 to know the present position of their flat having talk with the partners of opposite Party no. 1 they were completely taken a baked and shocked to know that their flat was not completed and the OPs could not give any assurance when they can hand over possession.

That complainants were literally abused and forced to leave office of opposite parties when they asked explanation from opposite parties and demanded return of the part consideration of Rs. 12.5 lakhs already paid to opposite parties.

That the developers deliberately with malafied intention failed to complete construction of the said flat No. 6/1 in the 6^th floor in their constructed building at holding No. 113/149, Mokdumpur, P.S. English Bazar within the local limit of ward No. 02 of English Bazar Municipality within the schedule two years which speaks of gross deficiency in service and unfair Trade practice.

Thereafter having not received any response from opposite party complainants sent legal notice dated 15.07.2014 to opposite parties which was duly received by them.  

The further case of the complainant that they were always ready to perform their obligations of agreement to pay the balance amount and to take possession of the Flat. But the OPs have not constructed the flat and could not deliever possession of the flat and for those reasons they have prayed for directing the OP’s to refund RS. 12.5 lacs along with interest since 23.05.2012 and Rs. 5lacs as compensation, litigation cost etc. 

The C.C was admitted on merit and notice was sent to OP. i.e., M/S Kiran Enterprise and its partners. All the OP No. 1 to 4 has received notice through post. OP No. 5 left the address and notice returned unserved. By order of this bench, the complainant published the notice in newspaper edition meant for OP No. 5. But he did not contest the case.

The OP No. 2 and 4 only has contested the case by filing W.V. They denied all the allegations of complainants and contended interalia that the entire consumer complaint is full of ambiguity concocted Fabricated etc.

 The positive case of the OP No.2 and 4 is that the complaint based on those agreement is concerned not enforceable by law. For the sake of argument if say that the Complainants were entered in an agreement with someone which is not within the capacity of partner at all, accordingly one whose mal-practice cannot be imposed on the other innocent persons. However, the so-called partnership is not registered accordingly no suits/cases or proceeding of clam not tenable by law. So far, the money receipts are concerned are not of the partnership firm. It was fully manufactured of the signatory’s foe which no such liability can be raised against this Opposite party. The Complainant was not diligent on his part and never been complained with his word for which this O.P. is not liable for any claim. The office of M/S Kiran Enterprise use to run by the employees appointed from time to time accordingly no other persons were permissible to receive any money beyond the official category. The subject matter is not tenable as there was no such construction of 6^th Floor executed still now and the concerned authority also not sanctioned to that effect. In such circumstances there is no question arise to contract for selling of 6^th floor. The impossibility of event cannot enforce by law or any court of law. The complainant failed to implead the real name who are necessary party of this case like all the staffs of the said enterprise. The complainant admitted that there was no such agreement for selling of 1300 Sq.ft. flat rather they admitted that there was agreement for 850 Sq.ft. in their pleadings. The Opposite party never been did any thing or obtain from doing anything which ought to have done or ought not to be done which amounts to negligence. In fact, in brief is that the O.P. No. 5 Pradip Kumar Jha is the Guardian and non-working partner of the M/S Kiran Enterprise. Pradip kr. Jha is the uncle of O.P. No. 2 & 3 and after their father’s death O.P’s used to love and regards him as good as his father and they had sufficient faith upon O.P. No. 5. The Pradip Kr. Jha printed Money Receipt in the sweet will of his accord and the account of which was not properly maintained. The O.P. No.5 signed in the money receipt in his own capacity. The Opposite parties are not at all responsible for taking money from the complainant. The O.P. No. 5 Pradip Kr. Jha did all those things in his own capacity. Even he took false money and utilized elsewhere in sprite that he had no locus standi. One Biswasjit Saha S/O Tridip Saha of Malda Town the Asst. Manager at the relevant date and time. The O.P. No.5 Pradip Kr. Jha was the member of another partnership business with Debasish Basak at the relevant time and date. The flat in question was not approved by competent authority and the same yet to be received. No such amount was deposited by complainant in the office of the firm and/ or not the said Pradip Kr. Jha deposited that amount. Until and unless any payment has been proved the complainant cannot be claimed as consumer within the per-view of C.P. Act. Without admitting anything contained in this regard if at all any transaction is made by Pradip Kr. Jha that should have bear by the said person. The activity of personal capacity does not create or generate liability of other person or enterprise where there is mal-intention of the said Pradip Kr. Jha only. The said Pradip Kr. Jha all along caused nuisance in order to cheat the people in disguise. The Bank statement will speak truth it-self that said Pradip Kr. Jha did all act with the assistance of B. Saha, C. Saha, R. Saha and A. Das accordingly their name should have been impleaded for proper adjudication. In order to reach at a just and free decision. The said Pradip Kr. Jha has no locus standi to do anything accordingly he can not liable to any person in whatever manner. The principle of nemo dat quad non habet applies here. The English Bazar Municipality is the necessary party of this proceeding. In absence of the said party the complicated question of law cannot be decided to adjudicate. The proceeding is also barred by the Apartment ownership Act. The Complainant are not at all consumer and there was no fault, imperfection or short coming in the quality, quantity, potency, purity or standard which is required to be maintained by or standard which is required to be maintained by or under any law for the time being in force or as is claimed in relation to any goods. It further required to mention there is no such deficiency like fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be mentioned by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. The principle of the Contract Act the documents are involved not admissible by law as good as contract subject to relates with the other principles of law.

So, the OP No. 2 and 4 prayed for dismissal of the consumer complaint.

 The Complainant No.1 Jagannath Sinha was examined and he was cross examined by OP through interrogatories and reply.

On behalf of OP, evidence was adduced and courses of cross examination completed through interrogatories and reply.

Both sides have furnished the material documents by annexure and firisty.

During the Pendency of the proceedings original Complainants have died in Covid-19 and their heirs i.e., two sons Jaydeep and other has been substituted in place of them in due process of law who has adopted the pleading and evidences tendered by their parents.

Argument of both sides and the process of conducting the case was performed by Ld. Advocate Mr. J. Chaudhary and Mr. D. Banerjee respectively.

                                                Points for Decision

1. Are the complainants come to the Purview of the term “consumer” under the Act?
2. Has the complainants any cause of action?
3. Have there any deficiency of service on the part of OP sides?
4. Are the complainants entitled to get the relieves prayed for?

                                               Decision with Reason

Point No. 1 & 2 :-   These two points are taken up for consideration. The OP Challenged the Consumer Complaint in the W.V on the ground that the case is barred by the provision of partnership act, non joinder of necessary parties, waiver, estoppel, acquiescence etc. and contended that the complainants are not the Consumers and they had no right cause of action.

On seeing the pleading and on perusal of the deed of agreement to sale executed on 23/05/2012, clearly indicates that the OP sides as promoter/developer had entered into and agreement with the original complainant Jagannath Sinha and his wife to sale a flat of 1300 sq.ft. in 6^th floor (G+6) at a price of Rs. 29 lacs and already received Rs. 7,00,000/- before executing the deed of agreement.

The OP sides in the deed itself represented themselves as partners of M/S Kiran enterprise and according to the complainant they have paid consideration money up to 12.5 lacs as stipulated in the agreement but the OP side never constructed the 6^th floor in the building and could not deliver the possession.

So, complainants can rightly claim that they were bonafide consumers and have been deprived the proper service from the OP as they have not discharged their obligations of the agreement in due course.

So, these points are here by answered in favour of the complainants.

Point No. 3 & 4 :-

The peculiarity of the defense case of the OP side are reflected in their pleadings where they have black and white denied the existence of any agreement to sale of the said residential flat between the complainants and themselves in para 47 of their WV while in para 76 of the WV they mentioned that they have executed the deed of agreement in personal capacity and not as partners of M/S Kiran Enterprise as there was no partnership deed.

This averment is baseless one as because they themselves represented as partners which are embodied in the article of agreement to sale deed dated 23/05/2012. Their act and conduct and this representation speak that they have acted as partners and done the instant deal with the complainants in maintaining their status as partners and for that reason whether there was any partnership deed or not and whether the farm was registered as partnership farm or not is immaterial.

It is argued on the part of the contesting OP sides that the so-called money receipts produced by the complainant to show their payments of Rs. 12.5 Lacs are manufacture and fabricated and the persons who put the signatures in the money receipt was not authorized person of Kiran enterprise and for that reason no such liability can be raised upon the contesting OP sides.

It is further argued that the said housing project had sanction plan obtained from the municipality to construct the building G+5 and no question was there to have construction of 6^th floor in the building and for that reason, the impossibility of event can not be enforced by law.

It is further argued that OP No. 5 Pradip Kumar Jha signed the money receipt of the complainant who was not authorized by Kiran Enterprise and at that time one Biswajit Saha as Asst manager of Kiran Enterprise was authorized to collect the price of flats from the customers.

Ld. Advocate of the OP further pointed out that before institution of the case, the complainants never approached the OP side to get refund the price they have paid Rs. 12.5 lacs and in reply to the interrogatory the complainant Jagannath Sinha admitted that he had no document to show such demand on his part.

Ld. Advocate of the complainant during the course of hearing argument mentioned that the Op No. 5 Pradip Kumar Jha was one of the partners of Kiran Enterprise and he took active part in the agreement of sale between the parties to the case and put his signature in the deed as witness and received money. He further pointed out that before registering the instant consumer complaint demand letter was sent to the Ops directing them either to hand over the Flat to the complainant in habitable condition or refund a money Rs. 12.5 lacs.

He further pointed out that in agreement to sale their acknowledgement that prior to execution of the same, Rs. 7 lacs were received by the OP sides from the complainants and mere taking plea that Pradip Jha was not entrusted to collect money, the OP side cannot be escaped themselves from the liability.

After hearing both sides, it is established beyond any doubt that both parties to the case, has come into a mutual agreement by execution the article of agreement to sale deed dated 23/05/2012, the OP side was agreed to hand over and delivery a residential flat super build area, covering 1300 sq.ft. on the 6^th floor and it was stipulated that the delivery of possession and registration of the sale deed to be done within two years and in continuation of such agreement, the OPsides has received Rs. 12.5 Lacs from the complainant time to time as specified in the deed of agreement to sale and discharged their obligations by part payment and they were agreed to make payment of rest amount in due time. But the OP sides never took any effort to construct the 6^th floor flat meant for complainants and they have failed to discharge in rendering their obligation as part of contract and for that reason the deficiency of service on their part is clearly established.

The unfair trade practice on the part of the OP sides also are established as because they were permitted with sanctioned plan by English Bazar municipality to raise the Building G+5 , where as they have tainted the complainants to purchase the flat in the same building in 6^th floor and practically they were not authorized to have an agreement with the complainants to delivery possession of the flat of 6^th floor.

The complainants were residing in a rented house by paying rents and in order to have a resident of their own they intended to purchase the flat by paying Rs. 12.5 lacs and waited for a long period with a hope to get the flat within time as stipulated in the agreement. While their all hopes were frustrated, they took the last resort to fight a legal battle and during this fight both the complainants has lost their life in Covid-19 pandemic and they left the world permanently with unrest soul. Their sons (two) resume the battle stepping into the shoe of their deceased parents.

So, the present Complainants as heirs of original complainants are entitled to get the proper relief and compensation.

Thus, these two points are hereby answered in favour of the complainants.

                                                          Hence, It is ordered

That the instant consumer complaint filed by since deceased Jagannath Sinha and Nivadita Sinha adopted by their legal heirs as substituted Sri. Joydeep Sinha and Anurag Sinha is hereby allowed under section 17 of CP Act, 1986 on contest against OP No. 2&4 and ex pare against Op No. 1, 3 & 5 with cost.

The OP No. 1 is the partnership farm and its liability rests upon its partners.

The OP No. 2 to 5 are hereby directed to pay Rs. 12.5 lacs to the present Complainants with interest @ 8% p.a. to be calculated since 23.05.2014 (Stipulated date of delivery of flat) within two months jointly and separately on account of refund which they have received from the original Complainants.

For deficiency of service and unfair trade practice they are asked to pay Rs. 1 lakh to the present complainants within Two months.

For causing mental pain and harassment to the complainants, the OP No. 2 to 5 are further asked to pay Rs. 60,000/- as compensation within two months.

The OP No. 2 to 5 are further asked to pay Rs. 40,000/- as litigation cost to the Complainants within two months.

If the opposite parties fail to comply the order of this Commission in due time additional interest over the entire awarded money @ 6% p.a. will be imposed upon them.

Let a copy of this order be supplied to the parties free of cost.