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 no.1 & 2 had jointly executed the agreement to sale dt.29.4.2017 with the op for purchase of a 2BHK residential flat admeasuring about 500sq.ft on the3rd floor, Block No.14, Penthouse at Dharitri Universia, situated at R.S Dag no.2498 and 2499, R.S. Khatian no.573, Mouza-Bhagabanur, P.S-Kashipur, South 24 Parganas, West Bengal.  The total sale consideration of the sid flat is Rs.1750000/- and out of the said consideration the complainants no. 1 & 2 as on date had paid a total sum of Rs.300000/- vide installments, as demanded by the op time to time.  The copy of the agreement to sale dt.29.4.2017 executed between the complainants no.1 & 2 the receipt of payment and the op and the MCA data obtained from the online portal of the Ministry of corporate affairs.  The complainant no.1 &3  had jointly executed the agreement to sale dt.29.4.2017 with the op, for purchase of a 2BHK residential flat admeasuring about 500 sq.ft on the 3^rd floor,  Block-14.  The total sale consideration of the said flat is Rs. 1150000/-.  The total sale consideration of the said flat is Rs. 300000/- vide installments, as demanded by the op time to time.  The copy of the agreement to sale dt.29.4.2017 executed between the complainants no. 1 & 3.  The above flats were purchased by the complainants for residential purpose, exclusively and in total had paid Rs.627000/- for both the flats.  It is pertinent to mention that as per clause 3 of the said agreements the residential flats were to be delivered within 42 months from date of execution of the agreement by 29.10.2020.  The complainants had been kept waiting for the whole tenure of the agreement however the complainants had been informed by the op the said project could not be constructed.  In this regard the complainants approached the registered office of the op on several occasions requesting for refund of the said amount as on date the complainants did not receive the refund of the said amount.  That aggrieved by the gross arbitrary and deficient acts of the op the complainants through its counsel served the legal notice ref. no.BR/2022-23/198 dt.05.08.2022 claiming for the refund of the amount of Rs.627000/- paid for the two flats.  However, irrespective of the service of the legalnotice on 13.8.2022, the op did not refund the said amount.

Complainant filed the complaint petition praying direction upon the opposite party to refund the amount of Rs. 6,27,000/-  and to pay a sum of Rs. 2,50,000/- towards mental agony and harassment and to pay a sum of Rs. 50,000/- as litigation cost.

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:-

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.

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 agent of the complainant heard in full. In course of argument ld. Lawyer of complainants have given emphasis on evidence and document produced by them.

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 non-maintainability 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 complainants are a resident of Chandannagore, Hooghly 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. 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 complainants are a consumer of the opposite party 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 complainants against the opposite party. Thus, the above noted three points of consideration are decided in favour of the complainants.

            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 complainants 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 complainants and on close compare of the documents filed by complainants it appears that the complainants by way of giving oral and documentary evidence have proved their case in respect of all the issues and the evidence given by the complainants 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 complainants side. The evidence given by the complainants side goes to show that he has proved the fact that the complainants invested Rs. 6,27,000/- and complainant has prayed for getting refund of the said amount. Now the question is whether the complainants are entitled to get refund of the said amount or not? In this regard the decision of Hon’ble Apex Court passed in the case of Ghaziabad Development Authority vs. R.B. Sharma which is reported in 2004 (3) CPR 92is very important. It is held by Hon’ble Apex Court that the complainants are entitled to get refund all the amounts which is received by the op. in view of this legal provision the complainants are also entitled to get relief in this case. Thus the points of consideration nos. 4 and 5 are decided in favour of the complainants.

In the result it is accordingly

ordered

that the complaint case being no. 191 of 2022 be and the same is allowed ex parte against op.

It is held that the complainants are entitled to get refund of Rs. 6,27,000/- from op along with interest @ 9% per annum.

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.