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

Case No. CC/176/2018.

Date of filing: 27/11/2018.                     Date of Final Order: 15/01/2024.

1. Sri Sourav Ghosh,

s/o Sri Narayan Chandra Ghosh,

2. Smt. Priyanka Ghosh,

w/o Sri Sourav Ghosh,

both are residing at Present at

Vill & P.O. Dwarbasini,

P.S. Pandua, Dist. Hooghly, PIN. 712149.

   vs  -

M/S SAI CONSTRUCITON

Represented by:

1. Sri Barun Kumar Mahajan,

s/o Ranjit Kumar Mahajan,

residing at P/C/1, Pritha Apartment,

Bankim Kanan, Talikhola,

P.O. Chinsurah R.S.,

P.S. Chinsurah, Dist. Hooghly, PIN. 712101.

2. Sri Ayon Das,

s/o Sri Ranjit Kumar Das,

residing at N.S. Road, Kharuabazar,

P.O. & P.S. Chinsurah, Dist. Hooghly.……opposite parties

3. State Bank of India,

Akhanbazar Branch, P.O. & P.S. Chinsurah,

Dist. Hooghly, PIN. 712101.

4. United Bank of India,

Chinsurah Branch, P.O. & P.S. Chinsurah,

Dist. Hooghly, PIN. 712101.….proforma opposite parties

Before:            President, Shri Debasish Bandyopadhyay.

                           Member, Babita Chaudhuri.

                           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 complainants stating that the complainant -1&2 are the husband and wife with each other and decided to purchase a flat for their residential purpose, and for the betterment of future both the complainants are jointly purchased a flat from the OP-1 &2.  For the purpose of execute the registration process of the said flat they also borrow loan from the pro OP-3 the documents which are lying in the hand of the complainants.   After perusing all the relevant documents being satisfied the OPs the pro-OP-3 disbursed loan in favour of the complainants and the complainants bonafidely also paying the EMIs @Rs.13600/- only.   The complainants purchased the flat in the apartment project developed by the OPs for construction cum sale of a flat having super built up area 1000sq. ft.  The complainant alongwith their family members are started  possessing over the schedule mentioned flat on the date of sale agreement of the said flat.  For the purpose of completion of such registration formalities the complainant also borrows huge loan amounting to Rs.1690000/- from prop-3 i.e. State Bank of India, Akhanbazar Branch, Chinsurah vide loan agreement Ref. ID no. 10488269 and Home loan a/c no.37357204846 and the actual face  value of the flat Rs.1880000/- .  Before purchasing the said flat, the OPs convinced the complainants to provide other amenities and facilities to the complainants and on good faith the simple minded petitioners purchased the said residential flat but these complainants are completely unaware about the parturient troublesome burden becoming to face in future.   The OPs -1&2 after becoming the sixteen annas owner of the property and after mutation-their name before the B.L & L.R.O Lichubagan, Bandel Hooghly and decided to construct a Multistoried building over the schedule mentioned property for their capital gain and for this purpose the OP-1 & 2 also made an development agreement on 15.3.2013 vide deed no.IV-00086 of 2013 before the ADSR, Chandannagar.  The OP-2 on the basis of the abovementioned agreement started to develop the  apartment project i.e. G-5 a Multi-storied building with Lift facility over the property of the OP-1&2 in the name and style “M/S SAI CONSTRUCTION”.  The complainants after borrowing the Home loan enquired the nature & character of the flat and found that the flat has been made by permission from Hooghly Zilla Parishad as permission of the flat is “G+3”instead of “G+5”.

Agreement for sale in between the petitioner no.1&2 with OP-1 on 27.10.2017 when the petitioner no.2 has given three cheques vide no.153912 dt.27.10.2017 in favour of the “SAI CONSTRUCTION” of amount Rs.170000/- through SBI, Pandua Branch and Rs.20000/- in cash.  The complainants requested the OPs several times to give the water connection and electric connection as per the agreement but the OPs failed to give the water and electric connection to the complainants as yet for that the complainants could not enter in to their flat in the property  Furthermore, the complainants regularly pay the rent regularly as well as EMI of the flat to the prop-3 as well as registration of the flat.

Complainant filed the complaint petition praying direction upon the opposite party nos. 1 and 2 to give the water and electric connection and electrical fitting in the flat as well as the registration of the flat in favour of the complainant and to appoint a Court Commissioner for investigation on giving the electric and water connection, window glass fitting and sanitary fitting, lift etc of the flat and to pay more than Rs. 22,500/-  for investing to finish the door of the flat by the complainant and to pay a sum of Rs. 70,000/- for mental harassment and to pay a sum of Rs. 20,000/- for litigation cost and direct the op no. 3 to stop the EMI loan amount is due every 10^th English calendar month till disposal of the case and also not to effect Civil score during this period and to direct the op no. 4 to show cause why the op no. 4 to draw a “Hypothecation notice” on the wall of the flat.

Defense Case:-  The opposite party No. 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the complainants made an agreement with OP-1 keeping the OP-2 in complete dark.  It was intentional to ensnare the OP -2.  The complainants were well aware that court cases both civil and criminal in a nature have been ending against OP-1 for his deceitful activities and wrong doings.  Many other cases have been filed in the consumer Forum.  But the OP-1 who solely handled all financial transactions with the complaints.  The complainants in collusion with OP-1 preferred to file case in Consumer forum only to save OP-1 for his criminal, unlawful, civil activities.  This require through ;probe to find out the truth  The OP-2 is an honest and innocent person and as such his name should be expunged from this case for the sake of natural justice.

The agreement was signed between the OP-1 and in the name of ‘Sai Construction’.  The OP-1 used the name to entrap OP-2 and shifting all liabilities on the shoulder of OP-2 and that too in connivance with the complainants.

The opposite party No. 3 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the allegations of the application as stated in the plaint are related with the service of the promoter developer of the flat and the allegations of the plaint against the PRO-OP-3  are not related with subject of matter of the case and neither any cause of action nor any claim/ allegation set forth in the plaint. Accordingly, the suit is not maintainable against the State Bank of India and their names should be expunge from the cause title of the plaint. The op no. 3 is working as Principal Officer of the SBI Chinsurah Branch and discharge his duty in official capacity according to the norms of the bank. Being the authoritative head of the bank, he always tries to maintain healthy relation with the customer to enhance the prospect of the Bank. . Accordingly, the suit is not maintainable against the State Bank of India.

The complainant took a House Building loan of Rs. 16,90,600/- against their account no. 37357204846 for purchasing a flat from op nos. 1 and 2 they have quite solvency for repayment of their loan amount as stipulated in the arrangement/ sanction letter at the time of sanction of their loan which duly acknowledged by them. The repayment period and EMI has also been incorporated in the said loan agreement which was duly acknowledged and executed by them. That during their loan period  they are not maintained the financial discipline and norms of the bank. Accordingly, the loan case should not come in the provision of this District Forum.  The said loan has become over due for non payment of EMI as per terms of the loan agreement accordingly the statement as alleged in the petition under Section 13 (3B) of C.P. Act totally false and fabricating. Neither the complainant nor any representation filed by them before the Regional Office, Hooghly nor in the Head Office, Kolkata of the Bank due to non compliance of the norms of the bank loan, the said house building loan is not at all subject matter of deficiency in service for adjudication by this Forum is not at maintainable under C.P. Act. So, this case is liable to be dismissed with cost.

The opposite party No. 4 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that instant complaint is not maintainable either in law, in facts or in present forms and nature  The present complaint is also barred by the law of limitation.  Since, the complainants made the United Bank of India as Proforma OP in the instant case but deliberately without disclosing that no claim subsists against the answering proforma op or they are not the customer of the OP.4 Bank.  The OP-1 M/s Sai construction took financial assistance and approval from the proforma OP-4 for construction of the apartment and as a part of security of loan taken by the said OP-1 the proforma op-4 affixed public notice on the conspicuous part of the mortgaged property.  As the complainants took loan from the State Bank of India, mentioned in Paragraph-4 & 5 on being satisfied and after completion of all the formalities including Legal Searching of the property, therefore, the complainants are being stopped as per law from making submissions about internal arrangements of the proforma op-4 and other ops.  Even the complainants before purchasing of the flat or taking loan from other bank never came to the OP-4 for any query or information.  The present complainants are not the customer or consumer of the United Bank of India and they never took any service from the bank and as such there never exists any consumer relationship or dispute between them, for which the proforma OP-4 Bank could be held responsible or direction be issued to them for showing any cause.

Therefore the question to draw a “Hypothecation Notice” on the wall of the flat, being the immovable property does not arise at all as the present complainant is not coming under the definition of consumer under section 2(d) of the Act, the act of the parties cannot be termed as consumer dispute, as alleged by the petitioner and there is no lack of service on the part of the Proforma OP-4 United Bank of India.  As such, the complainants are not entitled to any relief, as prayed for and the instant complaint is liable to be dismissed with exemplary cost, for the ends of justice.

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 complainants 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 nos. 2 and 3 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

Complainants have filed a petition on 29.3.2023 for treating their evidence eon affidavit as their written argument. Opposite party no. 2 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 Chinsurah, 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.

   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 complainants are the husband and wife who decided to purchase a flat for their residential purpose.
2. It is also admitted fact that the complainants thereafter had made contact with OP-1&2 for the purpose of purchasing the flat from OP-1&2.
3. There is no controversy over the issue that  the complainants borrowed Rs.1690000/- from OP-3 bank authority.
4. There is no dispute over the issue that the monthly EMI in respect of the said loan was of Rs.13600/-.        
5. It is admitted fact that the said loan Ref. ID No-10488269 and Home loan A/c no.37357204846 and the actual face value of the flat Rs.1880000/-.
6. It is also admitted fact that the complainants are making payment of EMI to the OP-3 bank authority.
7. There is no controversy over the issue that the OP-1&3 made a development agreement on 15.3.2013 vide deed no.IV-00086 of 2013 before the ADSR, Chandannagar.
8. There is no dispute over the issue that OP-1&2 decided to construct G+5 multistoried building with lift facility.  
9. It is admitted fact that  OP-1&2 started to construct the said building under name and style “M/S SAI CONSTRUCTION”.
10. It is also admitted fact that  the complainants made initial payment to OP-1&2 of Rs.170000/- vide cheque no.153912 dt.10.5.2017 and also make payment of Rs.20000/- in cash.
11. There is no controversy over the issue that  the complainants have not yet received the possession of the said flat and OP-1&2 have also not executed and registered any deed of conveyance in favour of the complainants.
12. There is no dispute over the issue that  in between OP – 1&2 civil and criminal cases are pending.        
13. It is admitted fact that the OP-1&2 have not yet taken steps for providing electric and water connection in the said building / apartment.
14. It is also admitted fact that this case is running ex parte against OP-1, 3&4 vide order no.23 dt.24.3.2022.

              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 inspite of making payment the Op-1&2 have not yet fully constructed the said building and also have not provided amenities such as lift facility, water connection and electric connection etc. and as a result of which the said building is not habitable and fit for residing and so the OP-1&2 have committed unfair trade practice and deficiency of service but on the other hand the OP-2 adopted the defence alibi that the point of contention of complainants is outrightly false as because the complainants have not yet made full payment of consideration money for which the deed of conveyance have not yet been registered and executed and so there is no fault on the part of the OP-1&2.

            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 this case is running ex parte against OP-1 and OP-1 has neither filed any evidence on affidavit and documents for which the evidence on affidavit which is filed by complainant against the OP-1 remains unchallenged and uncontroverted and there is nothing to disbelieve the said unchallenged and uncontroverted testimony of complainants side. Moreso the evidence given by OP-2 is not supported by any other evidence for which the evidence on affidavit which has been filed by complainant remains unchallenged.  Thus it is crystal clear that the complainants have proved their case that the apartment where they intended to purchase flat remained incomplete and all the facilities have not yet been installed.

But fact remains that the complainant side has failed to prove this case against OP-3&4 and so for want of cogent evidence this District Commission has no other alternative but to dismiss this case against OP-3&4.    

In the result it is accordingly

ordered

that this complaint case being no. 176 of 2018 be and the same is decreed  ex parte against OP-1 and it is allowed on contest against OP-2 but in part  and this case is dismissed against OP-3&4.  It is held that the complainants are entitled to get an award of direction upon the OP-1&2 to provide water and electric connection and electrical fittings in the flat of the complainants and also directed to execute and register deed of conveyance in respect of the said flat in favour of the complainants.  Otherwise complainants are given liberty to execute this order as per law.

No order is passed as to compensation and litigation cost as this case has been delayed to some extent due to reason of complainants.

In the event of non-compliance of the above noted direction the OP-1&2 shall pay fine of Rs.5000/- in favour of the Consumer Legal Aid Account of DCDRC, Hooghly.

Let a free copy of this judgement  be handed over to the parties and their Ld. Lawyers as early as possible.

Let this final order be uploaded in the official website of this District Commission.