Shri Debasish Bandyopadhyay, Hon’ble President.
Brief fact of this case:- This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant describing that the Opposite Party no. 1 is a construction company and had wished to develop/construct multi storied building on a piece of land belonging to one Sri Durga Shankar Mitra, the landowner to the said piece of land, the opposite party no. 2 herein, and accordingly developed the said land and constructed a multi storied building with residential flats with different floor area at 82/8, Ramlal Dutta Road, within the ambit of Ward No.13 of Uttarpara- Kotrung Municipality P.S.- Uttarpara, Dist-Hooghly, PIN-712258, and Debasish Das i.e. opposite party no. 3 herein is the third party purchaser and the complainant approached to the opposite party no. 1 with intention to purchase a flat and being satisfied booked a flat in the ground floor of holding no. 82/8, Ramlal Dutta Road, within the ambit of Ward No.-13 of Uttarpara-Kotrung Municipality, P.S.-Uttarpara, Dist-Hooghly, PIN-712 258, measuring 750 sqft, super built up area for a consideration amount 14,50,000/- (Rupees fourteen lakh fifty thousand) only and accordingly entered into a tripartite agreement for sale dated 08/12/2017 and as per the agreement for sale dated 08/12/2017 the complainant is the purchaser and thereafter the complainant paid 13,50,000/- (Rupees thirteen lakhs fifty thousand)only on different dates i.e. on 30/06/2017 Rs. 12,00,000/- and Rs. 50,000/- on 06/12/2017 and as per said agreement registration process shall be completed by 30/06/2018 but the opposite parties kept silent and did not make any such arrangements for the registration of the said flat.
The complainant also states that his son visited the project site to inspect the work in progress and during such visit opposite parties abused him and denied to hand over the possession of the said flat at ground floor and also threatened him to implicate in false case and being frightened the complaint lodged a complainant with the local police station and the complainant issued a legal notice through his Ld. Advocate on 11/08/2018 and lastly on 11/08/2018 when the opposite parties did not make registration of the said flat and so cause of action is continuing till date.
Complainant filed the complaint petition praying direction upon the opposite party to pay sum of Rs. 13,50,000/- along with 9% p.a. and opposite parties to pay a compensation of Rs. 1,50,000/- for mental agony and harassment and to pay Rs. 50,000/- as litigation cost and any order or orders as this Ld. Forum deems fit and proper.
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 has filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.
Argument highlighted by the ld. Lawyers of the parties
Complainant filed written notes of argument. Argument as advanced by the agents of the complainant heard in full. The evidence on affidavit and written notes of argument of complainant are to be taken into consideration for passing final order.
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 contested this case due to the reason best known to them. Under this position this District Commission has passed the order of ex parte hearing of this case. On this background it is also mentionworthy 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-Kotrung area, P.S. Uttarpara 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 this 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 connected with the question as to whether there is any deficiency in service on the part of the opposite parties or not and the point no. 5 is related with the question whether the complainant is entitled to get any relief in this case or not? These two points 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 the above noted two points of consideration, there is necessity of making scrutiny of the evidence on affidavit filed by the complainant and there is also urgency to examine the documents which have been filed by the complainant. In this matter this District Commission after going through the evidence on affidavit filed by the complainant finds that the complainant has categorically described his case in the evidence on affidavit and he has not left any stone unturned. Moreover, the evidence on affidavit filed by the complainant has not been challenged and/ or interrogated by the opposite parties by filing questionnaires or interrogatories. In other words it can be said that the evidence given by the complainant remains unchallenged and uncontroverted. There is nothing to disbelieve the unchallenged and uncontroverted evidence given by the complainant. In this regard it is also very important to mention that the opposite parties have not filed any evidence on affidavit in support of their case and/ or to disprove the case of the complainant side. This factor is also reflecting that the evidence given by the complainant has not been shakened in any way. Over these issues it is the settled principle of law is that non execution of sale deed is a deficiency in service. These legal principle has been observed by National Consumer Disputes Redressal Commission, New Delhi and it is reported in II (2022) CPJ 168(NC). Similar observation has been adopted by Hon’ble State Commission, West Bengal and it is reported in II (2022) CPJ 50 (WB). This legal principle has also been adopted by Hon’ble State Commission, Madhya Pradesh and it is reported in II (2022) CPJ 89 (MP). The evidence given by the complainant goes to show that there is deficiency in service on the part of the opposite parties and the complainant is entitled to get the remedies which he has prayed in this case. Thus, the above noted two points of consideration are also decided in favour of the complainant side.
But facts remain that the evidence given by the complainant side and the fact highlighted by the parties of this case goes to show that complainant is not now interested to take the flat but complainant is praying for the refund of Rs. 13,50,000/- along with interest @ 9% per annum and also prayed for compensation and litigation cost. Now the question is whether this alternative prayer of the complainant can be allowed or not? In this regard the decision/ judgement of Mrs. Jasveen Kaur vs. Parsvnath Developers Ltd. which is reported in 2022(2) CPR 137 (Del.) is very important where Hon’ble State Commission, New Delhi has observed that the amount paid by the complainant is also to be refunded along with interest and so this prayer of the complainant can be allowed.
It is held that complainant is entitled to get an order directing opposite party no. 1 to refund the total amount of Rs. 13,50,000/- along with interest @ 9% per annum and the complainant is also entitled to get compensation of Rs. 30,000/- (this amount has been fixed by considering the facts and circumstances of this case and evidence on record) and the complainant is also entitled to get litigation cost of Rs. 5000/- from the opposite party no. 1. So, opposite party no. 1 is directed to pay Rs. 13,85,000/- along with interest @ 9% per annum to the complainant within 60 days from passing of this order.
In the result it is accordingly,
ordered
that this complaint case being no. 142 of 2018 be and the same is allowed ex parte against opposite party no. 1 but in part.
It is held that complainant is entitled to get an order directing opposite party no. 1 to refund the total amount of Rs. 13,50,000/- along with interest @ 9% per annum and the complainant is also entitled to get compensation of Rs. 30,000/- and the complainant is also entitled to get litigation cost of Rs. 5000/- from the opposite party no. 1. So, opposite party no. 1 is directed to pay Rs. 13,85,000/- along with interest @ 9% per annum to the complainant within 60 days from passing of this order.
Opposite party no. 1 is directed to comply and/ or carry out this order positively within 60 days otherwise complainant is given liberty to execute this order as per law.
In the event of failure to comply with the order the opposite party shall pay cost @ Rs. 50/- for each day’s delay, if caused, on expiry of the aforesaid 60 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.
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.
