In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/154/2023.
Date of filing: 14/08/2023. Date of Final Order: 19/07/2024.
Sri Manas Mukhopadhyay,
son of Late Badri Narayan Mukhopadhyay,
112 Kalupukur Road, Panchanantala,
P.O. + P.S. Chandernagore, District: Hooghly, PIN: 712136. ……complainant
vs
- M/S EVANIE INFRASTRUCTURE PVT. LTD. (HOUSING PROJECT)
- Sri Soumya Roy, (Authorised Signatory)
both 1 & 2 of Premises No. -594/1, Dakshindari Road,
'Bima Abasan' Flat No. E 2/1, 1st Floor,
P.O.: Sreebhumi, P.S. Lake Town, Kolkata 700048, Dist: 24 PGS(N) (DEVELOPER/VENDOR)
- M/S Usashi Realstates Pvt. Ltd.,
Working Address:
Banquette 81, Second Floor, Radhakunj Apartment,
VIP Road, Near Bika Banquette, Kolkata, West Bengal,
Registered office:
86, Golaghata Road, Jamuna Apartment,
Kolkata, West Bengal, PIN: 700008. P.O:- Sreebhumi. P.S- Lake Town. (LANDOWNER)
- Mr. Sourav Ganguly,
2/6 Biren Roy Road, Behala, Kolkata, West Bengal, 700008.
(ADVERTISER)
…….opposite parties.
Before: President, Shri Debasish Bandyopadhyay.
Member, Debasis Bhattacharya.
Member, Babita Chaudhuri.
FINAL ORDER/JUDGEMENT
Presented by:-
Babita Chaudhuri, Member.
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 order to own a residential flat being demonstrated and advertised by the O.P. No. 4, the Advertiser, come in contact with the O.P. No. 1 Developer/Vendor, the Company incorporated under the Companies Act 1956 of which the O.P. No. 2 is an Authorised Signatory and the O.P. NO. 3 being the owner of the land was ready for development.
The O.P. No. 4 chaired as the CHIEF ADVERTISER used to display several advertisements for enticing common people to get attracted in the joint venture of the project, and the complainant, on good faith, like many other people paid a amount for purchasing an apartment to a tune of Rs. 80,000/- (Rupees Eighty Thousand Only) as Application Money through a cheque Dated 19.01.2019 of Bank of Baroda, Chandannagar Branch in the name of O.P. No. 1 against which a Receipt of Voucher No. 9255 was granted by the authorised signatory AND Rs. 2,00,817/- (Rupees Two Lac Eight Hundred Seventeen Only) on 22.11.2019 through another Cheque as has been specifically mentioned, acknowledged and confessed in the contents of the Agreement for Sale AND Rs. 1,15,500/- (Rupees One Lac Fifteen Thousand Five Hundred Only) on 27.12.2019 through another Cheque No. 279695 of IDBI Bank, Chandannagar Branch A/C No. 0401104000014313 against which a Receipt of Voucher No. 9256 was granted by the authorised signatory. As such the complainant has already paid in total an amount of Rs. 3,96,317/- (Rupees, Three Lac Ninety Six Thousand Three Hundred Seventeen Only) as reflects from records. The complainant purchaser is ready to pay the rest amount. An AGREEMENT FOR DEVELOPMENT of the land an agreement was executed and registered at the office of ADSR Rajarhat in the year of 2018. In view of offering the power of construction a DEVELOPMENT POWER OF ATTORNEY was executed by the O.P. No. 3 LANDOWNER in favour of the O.P. No. 1 & 2 DEVELOPER / VENDOR duly registered the office of ADSR Rajarhat, in the year of 2018. Being agreed to purchase the Housing Project named and styled as EVANIE ECONEST among the Opposite Party No. 1 & 2, the petitioner purchaser underwent an AGREEMENT FOR SALE with the O.P. No. 1 & 2 on the 22nd November 2019. The petitioner purchaser applied in prescribed form of Application Dated 19.11.2019. The Opposite Party No. 2 the Authorised Signatory as well for and on behalf of the company, M/s EVANIE INFRASTRUCTURE PVT. LTD, in order to project a Housing complex in the name and style of "EVANIE ECONEST" for the purpose of construction of multi-storied bulling and erecting residential flats etc. in different phases, underwent in the AGREEMENT FOR SALE executed on the 22nd November 2019 with the petitioner purchaser in respect of all that piece and parcel of one self-contained residential 1 BHK flat having a total carpet area of 376.25 Square Feet, fore or less Covered Area 301 Square Feet plus added common covered area 75.25 Square Feet within 1 bed room, 1 living and dining space with kitchen, 1 WC, 1 open terrace on the 3rd Floor of the said "EVANIE ECONEST" with all the common services, facilities and amenities useable for the purpose of a comfortable and luxurious inhabitancy.
The AGREEMENT FOR SALE, PAGE 9 CLAUSE 6.1 reflect expected possession time 40 (forty) months from the date of execution of the SALE AGREEMENT but the O.P. have failed it deliberately to proceed with the construction work, began to demand further amount from the complainant/ petitioner purchaser by pressuring forcibly, ignored to make over the possession of the scheduled apartment to the complainant/petitioner purchaser within stipulated period i.e. 21.03.2023. The complainant tried to meet with O.P. several times but ignored by Opposite Party and have not made over any apartment to the complainant / petitioner till date neither assuring any date apropos and for such misconduct and breach of covenant, offensive activity, breach of trust, misbehavior and cheating, the petitioner at his post-retiring age got mentally tormented and physically sick.
The complainant personally posted a letter on 20.02.2023 to the Opposite Party No. 1 praying to let inform the date of delivery of the possession of the booked flat but no reply was communicated to the complainant. Later the complainant preferred to send a LEGAL DEMAND NOTICE through his Ld. Advocate Nandita Paul of Chandernagore Court on 24.04.2023 directing the Opposite Party to hand over the physical possession of the complete apartment of the schedule of the AGREEMENT FOR SALE executed within 30 days after receiving this notice without further delay but the Opposite Party cared less. The complainant claim a compensation amount of Rs. 30,00,000/- (Rupees thirty lac only) in addition to the payment already made by the complainant in favour of the Opposite Party.
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. Lawyer of the party
Complainant filed BNA. As per 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 ld. Advocate of the complainant heard in full. In course of argument ld. Lawyer of complainant has given emphasis on evidence and document produced by party.
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 Chandannagar, 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. 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.
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 points 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 complainant of this case.
For the purpose of arriving at just and proper decision in respect of points of consideration nos. 4 and 5 this District Commission finds that there is necessity of making scrutiny of the evidence given by the complainant. In this regard it is important to note that the ops have neither filed any W/V nor filed any evidence on affidavit to disprove the case of the complainant. On close examination of the evidence given by the complainant side it is revealed that the complainant has categorically described his case in the evidence and the evidence given by the complainant is also supported by documents. It is also revealed that the evidence (oral and documentary) which is given by the complainant side remains unchallenged and/ or uncontroverted as no cross examination has been highlighted in this case by the ops. After going through the materials of this case record this District Commission finds that there is no reason to disbelieve the unchallenged and uncontroverted testimony of the complainant side. It is also transpires that the complainant has proved his case by way of adducing evidence in connection with the points of consideration nos. 4 and 5 which have been adopted in this case.
All the above noted factors are clearly reflecting that the complainant is entitled to get relief in this case which has been prayed by this District Commission.
In the result it is accordingly
ordered
that the complaint case being no. 154 of 2023 be and the same is allowed on ex parte with cost.
Opposite party nos. 1 and 2 are directed to refund the total advance amount of Rs. 3,96,317/- only in favour of the complainant within 30 days from the date of this order.
Opposite party nos. 1 and 2 are also directed to pay compensation of Rs. 30,000/- in favour of the complainant within 30 days from the date of this order.
In the event of nonpayment/ non compliance of the above noted direction the opposite party nos. 1 and 2 are 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.
Complainant is at liberty to put the final order into execution after expiry of the appeal period.
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.
