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

Case No. CC/145/2018.

Date of filing: 10/09/2018.                     Date of Final Order: 07/06/2024.

1. Bedaura Amrita Khanem,

w/o Akbar Ali,

2. Akbar Ali,

s/o Ainul Hoque,

r/o Kailashnagar, P.O. Bandel,

P.S. Chinsurah, Dist. Hooghly,

PIN. 712103, W.B.

Permanently at Mahishasthali,

Bahgwangola, Mahesh, Narayanganj Band, Pul,

P.S. Bahgwangola, Dist. Mursidabad, PIN. 742135.

M/S Sai Construction

Represented by-

1. Sri Barun Mahajan,

s/o Ranjit Kumar Mahajan,

r/o P/C/1, Pritha Apartment,

Bankim Kanan, Talikhola,

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

2. Sri Ayon Das,

s/o Sri Ranjit Kumar Das,

r/o N.S. Road, Kharuabazar,

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

3. State Bank of Indua,

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

Dist. Hooghly, PIN. 712101.

4. United Bank of India,

Chinsurah Br.,P.O. & P.S. Chinsurah,

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

Before:            President, Shri Debasish Bandyopadhyay.

                          Member,  Debasis Bhattacharya.

                         Member, Babita Chaudhuri.

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, 1993 by the complainant stating that the complainant no-1&2 are the husband of 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 schedule mentioned from the OPs-1&2 which is well within the jurisdiction of this ld. Forum.  For the purpose of execution of 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 Pro-OP-3 disbursed loan in favour of the complainants and the complainants bonafidely also paying the EMIs @ Rs.10400/- 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 788 sq. ft.  The complainants alongwith their family members are started to possessing over the schedule mentioned flat on the date of registration of the said flat.

For the purpose of the completion of such registration formalities complainant also borrows huge loan amounting to Rs.1186476/- i.e the face value of the flat from pro-OP-3 i.e State Bank of India, Akhanbazar Br. Chinsurah vide loan agreement ref. ID no.12016595 and Home loan A/c no.37712091395.  Before purchasing the said flat mentioned the B schedule, 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 troublesome burden becoming to face in future.  The OP-1&2 after becoming the sixteen annas owner of the A schedule mention below property and after mutation their name before the B.L&LRO, Lichubagan, Bandel Hooghly and decided to construct a Multistoried building over the schedule below 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 multistoried building with lift facility over the A schedule property of the OP-1&2 in the name and style “M/s SAI CONSTRUCTION”.

In the sale deed no.060106958 on 13.6.2018 in where the OP-1&2 promised to give electric connection and water connection but after purchasing the flat the complainants found that no electric connection and water connection are existing through the complainants requested the OP to fulfill the terms of agreement but they still remain silent.  Such kinds of negligence and ignorance from the part of the OPs is resulting the deficiency of service and for that complainants have been facing loss both mentally and financially.  Agreement for sale in between the petitioner -1&2 with OP-1 on 13.3.2018 when the petitioner-2 has given three cheques vide no.03,04 & 05 dt.15.3.2018, 28.3.2018 & 14.3.2018 in favour of the SAI CONSTRUCTION of amount Rs.60000/- Rs.20000/- & Rs.20000/- respectively through HDFC Bank.  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 into their flat in the B schedule property.  Furthermore the complainants regularly pay the rent  as well as EMI of the flat to the pro.OP-3.  The pro. OP-4 gives the loan money to OPs for making the construction of the flat for sale.  The petitioner-1&2 gave a monthly rent of Rs.6000/- plus Rs.1000/- (Electric Bill).  It is to be mentioned here that due to excessive pressure of promoter, Barun and Bank agent for flat registration and also threatened the petitioner-2 for GST amount applicable if the petitioner no.1&2 did not get registration the flat.  The petitioners denied to register the flat before finishing the incomplete flat.  But the OPs and agents both of them pressurize the petitioners to make the registration by over telephone frequently.

Moreover the petitioner-2 a private service man and he got a monthly salary of Rs.28000/- and monthly expenses described in the complaint petition.  So how the petitioners can manage their daily life.

Complainants filed the complaint petition praying direction in favour of the complainants as the absolute owner, right, title and interest of the flat and to give a direction upon the opposite party nos. 1 and 2 to give the water and electric connection and electrical fitting in the flat and to appoint a court commissioner for investigation on giving the electric and water connection, window glass fitting and sanitary fitting etc of the schedule mention flat and to pay a sum of Rs. 50,000/- for investing to finish the interior decorating, “Paint” of the flat by the petitioner and to pay a sum of Rs. 1,30,000/- for mental harassment and to pay a sum of Rs. 20,000/- for litigation cost and to give a direction to op no. 3 to stop EMI loan amount is due every 10^th day of English calendar month till disposal of the case and also to give  order do not effect Civil score during this period and to give a direction upon 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 him and stated that it is evident from the admission of the complainant that they made agreement for sale with the op no. 1 and not with the op no. 2 and the cheques were given to op no. 1 keeping the op no. 2 in the dark and this was done  with an ulterior motive of the complainants and a Civil Case no. 308/2018 on the same cause of action has been pending in the Civil Judge (Junior Division), 1^st Court  and during the pendency of that Civil Suit the complainants has been filed before the Forum and this has been done only harass the op no. 2 for reasons best known to the complainants. Hence the complaint filed by the complainants should and ought to be dismissed with cost for the sake of natural justice. The complainants made the agreement with op no. 1 keeping the op no. 2  in the dark and therefore there is no deficiency on the part of the op no. 2. The complainant has some other motive behind filing this case in the Forum. So, the complainant’s case should and ought to be dismissed with cost for the sake of “natural justice”.

The opposite party No. 3 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the op no. 3 is working as Principle 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. This case is not maintainable against op no. 3 bank as per statement of the plaint.

The petitioners have taken a House Building Loan of Rs. 11,86,476/- by depositing the original title deed after registration per terms of the Loan Agreement and the said loan shall be payable within stipulated time and all transactions of the account are reflected in the statement of account, accordingly the allegation as stated in the plaint are not all true and correct and the op bank has answered each and every question raised by the petitioners and bank also replied the letter in due time. Accordingly there is no latches on the part of the op no. 3. The petitioners took a House Building loan of Rs. 11,76,476/-  against their Account no. 37712091385 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 and during their loan period but they are not maintained the financial discipline and norms of the bank. Accordingly, the loan case should not come in the provision of Consumer Disputes Redressal 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 u/s 13 (3B) of C.P. Act totally false and fabricating. Neither the petitioner 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. Accordingly the present claim in the application before this Forum is not at all maintainable under C.P. Act. The allegations of the above subject matter of the case are not related with the deficiency in service and unfair trade practice coupled with deficiency in service u/s 12 of C.P. Act. So, the case is not maintainable against the bank.  So, this case should 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 for the first time the op no. 4 came to know about the alleged statements and incidents from the instant complaint, in which it is most respectfully stated that the op no. 4 is no way connected, concerned or interested and the op no. 1 took financial assistance and approval from the op no. 4 for construction of the apartment and as a part of security of loan taken  by the op no. 1, the op no. 4 affixed public notice on the conspicuous part of the mortgaged property and as the complainants took loan from the State Bank of India 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 op no. 4 and other ops. Even the complainants before purchasing of the flat or taking loan from other bank never came to the op no. 4 for any query or information. It is also submitted that this Ld. Forum lacks jurisdiction to adjudicate and declare the title of the complainants and it is categorically submitted that the present complainants are not the customer of the Untied 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 op no. 4 could be held responsible or direction be issued to them for showing any cause.

It is further submitted that the Hon’ble Andra Pradesh High Court in Chekkala Naraya Rao vs. Grandhi Atchutarama Rao opined that “..The word, ‘hypothecation’ as such is not defined in any enactment. It is also a measure of security but vis-à-vis movable property. Broadly, stated what mortgaged for immovable property is hypothecation for movable property. It is more proximate to pledge, as defined u/s 172 of the Indian Contract Act. The only difference is that the possession of a pledge article would be with the creditor whereas the possession of hypothecated item of property would remain with the borrower. 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 complainants are 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 op no. 4. 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 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 no. 2 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 no. 2filed 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 no. 2 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 and O.Ps are resident/dealing business at Bandel/Chinsurah, Hooghly which are 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, 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 the complainants have not sought for any permission from this District Forum/Commission in the matter of filing this case particularly when more than one complainant have filed this case jointly.  This is clearly indicating that there is a defect in the matter of institution of this case.  Moreso in this case the complainant has incorporated United Bank of India, Chinsurah Branch as Op-4 but against the said OP there is no claim of the complainants in this case.  Moreover, the complainants are also not consumer under the OP-4 and so the OP-4 has been impleaded as unnecessary party and so this case is defective for non-joinder of parties.  In respect of OP-3 this District Commission after going through the evidence on record finds that the complainant has taken loan from OP-3 in the matter of purchasing the flat which has been described in the schedule of the complaint petition and as per loan agreement the complainants are duty bound  to pay the EMI month by month to the OP-4 bank authority and so the OP-3 bank authority has the liberty of taking necessary action against complainants for realization of the loan amount.  In this regard, it is very important to note that the complainants in order to evade/avoid the loan liability has unnecessarily impleaded OP-3 as a party.  In this case the complainants have also prayed for passing an order of injunction restraining the OP-3 from realization of the loan amount but the complainant is entitled to get such relief from the DCDRF, Hooghly and this jurisdiction is exclusively vested with the Ld. Civil Courts.  Moreso, from the prayer of the complaint petition it is revealed that the complainant has prayed for direction to declare that the complainants are the absolute owner having right title an interest in respect of the said flat.  But fact remains that such declaratory relief can be prayed by the complainants under section 34 of this Specific Relief Act and Ld. Civil Courts have the jurisdiction to entertain such declaratory reliefs.

A cumulative consideration of the above noted discussion goes to show that the complainants have failed to make out their case in respect of points of considerations no.4&5 which are vital issues.  For that reason this District Commission is of the view that the complainant has failed to prove this case and so it is liable to be dismissed.

In the result it is accordingly

ordered

that the complaint case being no. 145 of 2018 be and the same is dismissed on contest against all the Opposite Parties.

No order is passed as to cost.

The parties are entitled to get a free copy of this judgment as early as possible.

            The Final Order will be available in the following website www.confonet.nic.in.