Presented by:-
Shri Debasish Bandyopadhyay, President.
Brief fact of this case:- This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that the complainant in the year 1995 was approached by the op to purchase one flat which the op proposed to construct by a development agreement, power of attorney from one landlord and after satisfying the petitioner with lofty promises of registration, possession, mutation of the flat , details of which are described in the schedule of property of this instant position.
After satisfying the petitioner, the op asked the petitioner to sign and execute over Agreement of sale dated 22.05.1995 which the petitioner signed and executed on production of the above stated documents and identification of himself as the constituted attorney of landlord and developer and after execution of the agreement the petitioner being duty bound to pay the ops all the dues and in return, on 14.09.1995, petitioner was officially handed over the possession letter by hand and the problem started on and from the 14.9.1995 when the op started evading to satisfy the petitioner by registration, mutation, of the suit property and when the learned advocate for the petitioner pressed for the registration of the suit property and along with all other promises, the op replied through his learned Advocate to flatly deny the registration of the suit property in favour of the petitioner on the flimsy pretexts that the power of development Agreement are not registered documents. The petitioner is suffering from about 22 years due to sheer negligence of the ops to register and complete all other formalities and the cause of action therefore arose on 14.9.1995 from when the op is evading to register the suit property, is a continuing cause of action and the same further aggravated when on 4.10.2018 when the op denied to perform execution and registration by his Advocate Reply letter. Under the situation, the petitioner have no other choice except to knock at the doors for justice and the petitioner states that for availing justice, petitioner have filed no case in no other forum earlier or at present.
Complainant filed the complaint petition praying direction upon the opposite party to register, mutate and association formation as per contract at the cost of the op and to pay a sum of Rs. 100000/- for causing mental agony and harassment of the petitioner and to give interim injunction and to pay a sum of Rs.10000/- as litigation costs.
In this case the op inspite of receiving notice have not appeared and even after getting 45 days statutory time limit have not file written version and so this District Commission has heard this case ex parte.
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 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. As per BNA the evidence on affidavit and written notes of argument of Complainant are to be taken into consideration for passing final order.
Argument as advanced by the agents of the complainant heard in full. In course of argument ld. Lawyer of complainant has given emphasis on evidence and document produced by complainant.
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 inspite of receiving notice have not filed any W/V and also 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. This District Commission after going through the materials of the case record finds that the complainant is a resident of Rishra, Hooghly and the op has its place of business at Uttarpara, Hooghly which are 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. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. 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 on close examination of the pleadings of the complainant 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. It is the settled principle of law that a consumer invoking the jurisdiction of the District Commission can seek such relief as he or she considers appropriate. This legal principle has been observed by Hon’ble Apex Court in the case of Experion Developers Pvt. Ltd. vs. Sushma Ashok Shiroor and it is reported in AIR2022SC1824.
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 complainant and there is also necessity making scrutiny of the documents filed by the petitioner of this case.
On comparative studies of the evidence on affidavit filed by the complainant and on close compare of the documents filed by complainant it appears that the complainant by way of giving oral and documentary evidence has proved her case in respect of all the issues and the evidence given by the complainant remains unchallenged as the ops have not adduced any evidence and documents. There is no reason to disbelieve the unchallenged and uncontroverted evidence given by the complainant side. The evidence given by the complainant side goes to show that he has proved the fact that the complainant is entitled to get a direction upon the op in the matter of execution and registration of deed of conveyance in respect of the flat mentioned in the schedule of the complaint petition and also to take steps by the op in the matter of mutation and formation of the flat owner’s association. Complainant has also proved the fact that she is entitled to get compensation for deficiency of service on the part of the op. Thus, the complainant has proved her case in respect of all the points of consideration framed in this case and so she is entitled to get relief in this case.
In the result it is accordingly
ordered
that the complaint case being no. 156 of 2019 be and the same is degreed ex parte against op.
It is held that the complainant is entitled to get a direction upon the op in the matter of execution and registration of deed of conveyance in respect of the flat mentioned in the schedule of the complaint petition and also to take steps by the op in the matter of mutation and formation of the flat owner’s association. Complainant has also proved the fact that she is entitled to get compensation of Rs. 20,000/- for deficiency of service on the part of the op.
Opposite party is directed to pay the said amount within 45 days from the date of this order otherwise complainant is given liberty to execute this order as per law.
In the event of nonpayment/ non compliance of the above noted direction the opposite party is also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.
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.
