In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.

Case No. CC/99/2019.

Date of filing: 01/08/2019.                     Date of Final Order: 15/09/2023.

Sri Nirmal Kumar Ghosh,

s/o Lt’ Gostha Bihari Ghosh,

of 68/J, G.T. Road (west),

P.O. Mallick Para, P.S. Serampore,

Dist. Hooghly, PIN. 712203.

  -vs  -

1. M/S Nikhil Associates (Partnership Firm)

Registered office 3G Mallick Para Lane,

           P.O. Mallick Para, P.S. Serampore, Dist. Hooghly.

2. Baijanath Shaw

s/o Lt’Basdeo Shaw,

of 94/22, Narkeldanga Road, Kolkata 700054.

3. Sri Rabin Kumar,

s/o Lt’ Bateshwar Dass,

of 141/A Collin Street, Kolkata 700016.

4. Smt. Madhusree Dey,

W/O Rajib Dey,

Of Prantic Apartment, 25 Bhararathi Lane,

P.O. Mahesh, P.S. Serampore, Dist. Hooghly.

5. Smt. Mandira Chatterjee,

d/o Lt. Ramendranath Chat,

of Mallickpara Bye Lane,

P.O. Mallickpara, P.S. Serampore, Dist. Hooghly.

6. Sri Abhijit Chatterjee,

s/o Lt’Samarandranath Chatterjee,

of Mallickpara Bye Lane,

P.O. Mallickpara, P.S. Serampore, Dist. Hooghly.

….opposite parties

7. Ashok Ghosh @ Parimal Ghosh

s/o Lt’ Gostha Bihari Ghosh,

39/B Mallick Para Lane,

P.O. Mallickpara, P.S. Serampore, Dist. Hooghly.

….proforma opposite party

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. 12 of the Consumer Protection Act, 1986 by the complainant stating that complainant along with other co-sharer wanted to develop a multistoried building over the schedule mentioned property but due to their lack of knowledge and experience, they decided to permit the said development work over the schedule mentioned property and for that purpose the complainant along with other co sharer made a proposal before the ops and after acceptance of the said proposal by the ops, they executed registered development agreement before the Additional District Sub- Registrar Serampore on 17^th April 2015 vide no.02905 the documents which is lying in the hands of the complainant.  The schedule mentioned property was purchased by the elder brother by virtue of registered sale deed from Sk. Moyjuddin & Anowara Bibi bearing deed no.5835 for the year 1962 and the said Dipak Ghosh sole transferred to his brothers i.e. the complainant alongwith other co sharers accordingly by mutating their records of right they are possessing by inheriting equal share over the  schedule mentioned property respectively.  The said development agreement cum power of Attorney  will  reveal that in the said agreement it was decided and agreed between the parties in owners allocation, where it mentioned and agreed to provide 30% of super built up area to the co sharers and 70% for Developer Allocation along with super built up area according to the sanction plan issued by the Serampore Municipality.  The complainant has a separate herth and home and for a long time before he is being leaving at the schedule noted address mentioned in cause title therefore, at the time of executing the above mentioned development agreement cum power of attorney the complainant verbally told to the ops that he would like to take money in lieu of taking his 30% share in consisting of any flat measuring about  430 sq. ft. more or less each including super built up area less together with impart able portion of land in where the ops also agreed with the proposal of the complainant and accordingly it was decided that the ops will pay Rs.1100000/- to the complainant and out of said Rs.1100000/- the OPs already paid only 550000/- the bank documents which are also lying in the hands of the complainant.  Be it noted here that the complainant and the OPs also agreed the said valuation of the owners allocation (in terms of money) ought to be calculated on the basis of the present market value and on the basis of the said averment the ops verbally decided and agreed to provide the then market price i.e. Rs.1100000/- to the complainant.  The complainant severally asked and requested to the OPs to provide him the rest balance of amount i.e. amounting to Rs.550000/-but they did not pay heed to the request of the complainant for he is facing irreparable loss and injury.

Complainant filed the complaint petition praying direction upon the opposite parties to pay a sum of Rs. 5,50,000/- with 10% interest and to pay a sum of Rs. 50,000/- for loss and to pay a sum of Rs. 50,000/- for mental harassment and to pay a sum of Rs. 25,000/- as litigation cost and to give any other relief as deem fit and proper.

Defense Case:-  The opposite parties contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the cause of action as stated in the complain is vogue and imaginary and the complainant has filed this complaint on the basis of false story which has no legs to stand at all. So, the complaint is filed by the complainant is liable to be dismissed.

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 parties 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 parties 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 parties 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 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 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.  In view of the decision of Hon’ble Apex Court passed in the case of Experion Developers Pvt. Ltd.  Vs.  Sushma Ashok Shiroor.  This case is maintainable 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 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 and his predecessor were/are the owner of the schedule mentioned property. 
2. It is also admitted fact that the complainant decided to develop the schedule mentioned property.
3. There is no controversy over the issue that  for the purpose of development of the schedule mentioned property the complainant entered into development agreement on 17^th April, 2015.
4. There is no dispute over the issue that  the said development agreement and the power of Attorney were registered before the ADSR, Serampore.     
5. It is admitted fact that  the elder brother of the complainant purchases the said schedule mentioned property from Sk. Moyjuddin and Anowara Bibi by virtue of sale deed being no.585 of the year 1962.
6. There is no dispute over the issue that this said schedule mentioned property was then transferred to the complainant and his brothers.
7. There is no dispute over the issue that as per development agreement the complainant who is the owner of the schedule mentioned property is entitled to get 30 % of the constructed building and the developer was entitled to get remaining  share.
8. It is also admitted fact that subsequently the complainant decided to sell his share to the OPs at the amounts of Rs.1100000/-.
9. There is no controversy over the issue that the OPs paid Rs.550000/- to the complainant and assure the complainant to pay the remaining amount of Rs.550000/- latter on.

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   adopted  the plea that the OPs violated the terms and conditions of the agreement by not paying the amount ofRs.550000/- and it is undoubtedly deficiency of service and unfair trade practice but on the other hand the OPs have taken the defence alibi that there is no cause of action for filing this case by the complainant and this case has been filed by the complainant on the basis vague and imaginary story.

  For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords this District Commission after going through the evidence on record finds that the complainant has proved his case by filing evidence on affidavit and also by producing cogent documents but on the other hand the OP has failed to establish that they have paid the entire amount of Rs.1100000/- to the complainant.  On comparative studies of the evidence given by both sides this district commission finds that the complainant has neither received the allocated share of the schedule mentioned nor received the balance amount ofRs.550000/-.  Now the question is whether non-delivery of possession is a deficiency of service or not.  In this regard it is the settled principle of law that failure to deliver possession of the apartment within stipulated time is deficiency of service and in that event the petitioners are entitled to get refund of the amount.  This legal principle has been observed by the Hon’ble Apex Court and it is reported in AIR, 202 Supreme Court page 1824.

  A cumulative consideration of the above noted discussion goes to show that the complainant has proved her case in respect of all the points of consideration adopted in this case and for that reason the complainant is entitled to get relief in this case in respect of all the points of consideration.

In the result it is accordingly

ordered

that the complaint case being no. 99 of 2019 be and the same is allowed on contest against the OPs.

It is held that the complainant is entitled to get refund of Rs.550000/- from the OP alongwith interest @ Rs.9% p.a.

Opposite parties are directed to pay the said amount within 45 days from the date of passing order otherwise complainant is given liberty to execute this order as per law.

  In the event of failure and nonpayment of the above noted amount the opposite parties shall deposit Rs. 10000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly.  The parties of this case are entitled to get a free copy of this judgment.

Let this judgment be uploaded in the official website of DCDRC, Hooghly.

Dictated and corrected by me.