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 entered into an agreement for sale with the OPs on 26.3.2014 for the purpose of selling and transferring one self contained flat measuring about 1020 sq. ft. including ;super built up area together with proportionate share of stair case for common use be the same a little more or less consisting of 2 bed rooms, 1 drawing cum dining, 1 kitchen, 2 toilet and 1 verandah being flat no.301 on the third floor lying and situated at Mouza-Tarakeswar, J.L no29, R.S Dag no.496 L.R Dag no.814 under RS Khatian no.270 and previous LR Khatian no.821/1 at present L.R Khatian no.1196, 1197,1198 and 1199 holding no.11 street no.2, under Ward no.11 within the limits of Tarakeswar Municipality, P.S-Tarakeswar, District-Hooghly together with the undivided proportionate impartible share and interest in the land beneath the building together with all common rights in the common areas and facilities and easements rights for a total consideration of Rs.2800000/- only, particulars of which described in the schedule below and herein after referred to as the subject matter of the case and the ops given money receipt cum agreement for sale, 600000/- as earnest and advance out of the total consideration amount of Rs.2800000/- only in terms of the agreement for sale, subsequently on 6.6.2014 complainant has paid to Rs.100000/- by cash, on 23.7.2014 paid Rs.100000/- by cash, on 15.5.2015 paid Rs.900000/- by A/C payee cheque being no.161925 of HDFC bank and on 15.5.2015 paid Rs.600000/- by a/c payee cheque being no.161924 of HDFC bank, i.e. the complainant has already paid total rs.2300000/- out of the total consideration amount of Rs.2800000/- only and acknowledging the receipt of Rs.2300000/- only as earnest and advance out of the total consideration amount of Rs.2800000/- only and said cheques were duly encased by the ops. The complainant approached to the ops on several occasion but on various vague plea the ops intentionally refused to register a deed of conveyance in favour of the complainant though the possession of the said flat has already been handed over to the complainant on 24.9.2017. Since then the complainant seized and possessed the said flat but he could not shift in the said flat with his family as the op have not yet completed the said flat and it inhabitable condition. The complainant is ready and willing to register the deed of conveyance in connection with the said flat as contained in the said agreement for sale dated 26.3.2014 after payment of balance consideration of Rs.500000/- to the OPs. The OPs failed and neglected to execute and register the deed of conveyance in favour of the complainant and also raising some dispute and thereby refusing to execute and register the deed in favour of the complainant although the ops are under obligation to execute the deed in favour of the complainant. There is deficiency in service on the part of the OPs and the conduct of the ops amounts to extorting without actually discharging the obligation of the ops as per terms of the agreement for sale.
The complainant under the compelling circumstances has been forced to file this complainant. The complainant has been harassed by the ops and the complainant has suffered huge mental sufferings from anxiety, agony and anguish due to illegal and dishonest motive of the ops. The conduct of the ops is thus bad and the object of the ops are to extort money from the complainant. The complainant accordingly is entitled to claim compensation amount of Rs.500000/- against the ops and Rs.100000/- towards the cost of the proceeding or such amount towards compensation and cost as this ld. Forum may deed just and proper. The complainant makes it clear that he all along and still ready and willing to purchase the said flat and ready to pay the balance money if any and bear registration cost but the ops with some unlawful object is denying the right of the complainant. The complainant on several times requested the ops to execute and registered deed of conveyance in the name of complainant but the ops intentionally and motivatedly refused to execute and registered deed of conveyance in the name of complainant in terms of the agreement for sale and also the ops have been denied by themselves with fake assurances and re-assurances time to time to hand over after attaining CC very shortly from the Tarakeswar Municipality in respect of the said building.
The petitioner on several occasions verbally requested the developer to execute and registered necessary deed of conveyance in his allocated flat through his lawyer sent a notice on 21.9.2019 to the op. After received the said notice the op-1 contracted with the petitioner on 17.10.2019 with assurance that deed of conveyance registered within 30 days but thereafter the op have failed to execute the deed of conveyance in the name of the petitioner.
Complainant filed the complaint petition praying direction upon the opposite party to execute and register the sale deed in terms of the agreement for sale dated.26.3.14 and to pay a sum of Rs. 500000/- for compensation and to pay a sum of Rs.100000/- cost of proceeding.
In this case the OPs inspite of service of notice have not appeared and also have not filed any w/v and so this case has been proceeded ex parte all the OPs.
Issues/points for consideration
On the basis of the materials of the case record, 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
Argument as advanced by the agent of the complainant heard in full. In course of argument ld. Lawyers of complainant side has given emphasis on evidence and document produced by party.
DECISIONS WITH REASONS
In this case this District Commission after consideration of the materials of this case record has framed five points of consideration. Out of these five points of consideration the first one has been framed on the point whether complainant is a consumer under the OPs or not? The second points of consideration have been framed over the issue whether this District Commission has jurisdiction to try this case or not? The third point of consideration has been framed over the question whether there is any cause of action for filing this complaint case or not? These three points of consideration are very vital and so these issues are taken up for consideration at first.
After going through the material of this case record it is found that the complainant for the purpose of purchasing flat which has been mentioned in the schedule of complaint petition has paid consideration money of Rs.23,00000/- and to that effect money receipt has been filed. This factor is clearly reflecting that the complainant is a consumer under the OPs. In this regard section 2(7) of the Consumer Protection Act, 2019 is also indicating that the complainant is a consumer in the eye of law.
Over the jurisdiction issue this District Commission after going through the material of this case record finds that the claim of the complainant in this case is far below than Rs.50,00000/- which indicates that this District Commission has pecuniary jurisdiction to try this case. It is also revealed from the case record that the complainant is a resident of Tarakeswar , Hooghly and the OP-2 to 5 are also resident of Tarakeswar, Hooghly. All these factors are clearly depicting that this District Commission has its territorial jurisdiction as well.
The material of this case record goes to show that the complainant has cause of action for filing this case as because the OPs inspite of receiving consideration money of Rs.23,00000/-, has not executed and registered the sale deed. It is also reflected from the evidence on record that this instant case has been filed by the complainant within two years from the date of cause of action and so this case is not barred by limitation. All the above noted factors are reflecting that this case is maintainable, the complainant is a consumer under the OPs, this District Commission has pecuniary and territorial jurisdiction to try this case, there is cause of action for filing this case and this case is not barred by limitation. Moreso as per decision of the Hon’ble Apex Court in the case of Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor which is reported in AIR2022SC1824 it is found that this case is maintainable in the eye of law.
The points of consideration no.4 has been framed over the issue whether there is deficiency of service on the part of the OPs or not and the points of consideration no.5 is related with the question whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not? For the purpose of deciding the fate of the above noted two points of consideration this District Commission finds that there is necessity of making scrutiny of the evidence on record.
In this case the complainant has filed evidence on affidavit and this evidence on affidavit given by complainant side has not been challenged by the OPs as no interrogatories has been filed by the OPs who are not contesting this case and so it is crystal clear that the evidence given by complainant remains unchallenged and / or uncontroverted. There is no reason to disbelieve the unchallenged testimony of the complainant. On close examination of the evidence given by the complainant side it is revealed that the complainant has proved his case and the evidence which is given by the complainant is nothing but the replica of the petition of complainant. It is also important to note that the complainant has also proved his case by way of proceeding satisfactory documentary evidence. Thus it is crystal clear that the complainant has proved his case in respect of points of consideration no.4 & 5.
A cumulative consideration of the above noted discussion goes to show that the complainant has proved his case in respect of all the points of consideration and so he is entitled to get relief in this case which has been prayed by him.
In the result, it is accordingly,
Ordered
that this complaint case be and the same is decreed ex parte.
It is held that the complainant is entitled to get a decree directing the OPs to execute and register deed of conveyance in terms of agreement for sale dated.26.3.2014 within 45 days from the date of this judgment. Otherwise the complainant is given liberty to execute this award as per law.
In the event of failure of complying the direction by the OPs within the stipulated period of time, they would deposit fine of Rs.20,000/-.
Let a free copy of judgment be handed over to the parties and their Ld. Lawyers or authorized agents as early as possible.
Let this judgment be uploaded in the official website of DCDRC, Hooghly.
