In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/52/2020.
Date of filing: 21/09/2020. Date of Final Order: 28/10/2024.
Sri Somnath Basu,
son of Lt. Prabhat Kumar Basu,
126, Parmar Road, P.O- P.O- Bhadrakali,
P.S- Uttarpara, Dist.- Hooghly. Pin-712232. ……complainant
vs
- M/S Nanda Construction,
A Prop. firm,
represented by it's Sri Manoj Malu, Proprietor
Son of Lt. Lun Karan Malu,
Flat no.103, 1st Floor, 1, Banerjee Para Street,
P.O- Bhadrakali, P.S- Uttarpara,
Dist.- Hooghly, PIN-712232.
- Sri Satyapriya Banerjee,
Son of Lt. Haraprasad Banerjee,
AH99, Saltlake City, Tank no. Kolkata, PIN- 700091.
- Smt. Sharmila Mukherjee,
Wife of Sri Arabinda Mukherjee,
130, Parmar Road, P.O- Bhadrakali,
P.S- Uttarpara, Dist.- Hooghly, PIN-712232.
- Smt. Arundhati Bhattacharya,
Wife of Sri Shibnath Bhattacharya,
P-30, Golf Club Road, P.O- Tollygunge,
P.S- Jadavpur, Kolkata-33.……opposite parties
Before: President, Shri Debasish Bandyopadhyay.
Member, Debasis Bhattacharya.
FINAL ORDER/JUDGEMENT
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 after seeing the advertisement in respect of the O.P no.1, the petitioner intended to purchase one residential flat mentioned in the schedule and the O.P told the same would be constructed upon the Municipal Holding no.130, Parmar Road, situated within the ambit of Uttarpara-Kotrung Municipality, under U.S- Uttarpara, Dist.- Hooghly.
That the O.P no.1 is the developer and the O.P no.2 to 4 are the owners of the entire property, including the schedule mentioned flat. That the O.P members executed one sale agreement, dated 22/08/2017 and to that effect and according to the terms and conditions of the said agreement the consideration of the said residential flat and the garage was fixed at Rs.37,00,000/= (Rupees thirty seven lakh) only. And according to the terms and condition of the said agreement the complainant had paid Rs.10,00,000/= (Rupees ten lakhs) only as an earnest money and thereafter complainant has paid Rs.15,00,000/= (Rupees fifteen lakhs) only part by part and O.P side issued money receipt against the said payment, and petitioner has paid in total 25,00,000/= (Rupees twenty five lakhs) only, within 17/09/2018, i.e as per the terms and condition of the sale agreement dated 22/08/2017 and requested the O.P no.1 to complete the schedule flat and garage as soon as possible, but the O.P no.1 intentionally did not complete the schedule flat and garage and demanded more money.
That according to the terms and condition of the said agreement dated 22/08/2017 the O.P no.1 agreed to complete the schedule mentioned flat and garage, within ten months, from the date of agreement, but the O.P no.1 did not comply the terms and condition of the said agreement and till today the schedule mentioned flat and garage and other portion of the said unit is still incomplete and due to use of low quality materials, there are many cracks in the wall of the schedule mentioned flat. Although this, the complainant was ready to pay the rest amount and eager to registered the schedule mentioned flat and garage as early as possible, subject to completion of schedule mentioned flat and garage.
That the complainant contacted with the O.P no.1 and requested O.P to complete the same and hand over the possession of the schedule mentioned flat and garage but by different plea the O.P members are harassing the complainant, day after day and did not hand over the possession of the schedule flat and garage to the complainant.
That the complainant is ready and willing to register the schedule flat and garage, in his name and the complainant is ready and willing to pay the rest consideration money, for the flat and garage at once.
That none of O.P or their any representative of the firm did not comply the terms and conditions and did not complete the flat and did not registered the schedule mentioned flat, in the name of the complainant.
Complainant filed the complaint petition praying direction upon the opposite parties to complete construction work as per the agreement, dated 22/08/2017 and after construction obtain completion certificate and then hand over possession of the schedule flat and garage to the complainant and to pay a sum of Rs. Rs. 10,00,000/- for damage/harassment and to pay a sum of Rs.1,00,000/- for litigation cost and to pay a sum of Rs.1,00,000/- for rent along with it's interest and to make a direction the O.P to register the "B" schedule flat and garage in the name of the complainant/petitioner, failing which arrange for registration of the "B" schedule flat and garage in the name of the complainant/petitioner through Ld. Court as per provisions of law.
Defense Case:- The opposite party No. 1 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that in reality the petitioner herein is a habitual defaulter and not paid the entire agreed amount within the stipulated period as per the agreement executed on 22/08/2017 between the petitioner and the present O.P. No. 1, inspite of that the O.P. No. 1 herein being a honest businessman and dutiful towards his customers has completed the entire construction work including the property which the petitioner intends to purchase.
That in a letter dated 30/10/2019 it was admitted on behalf of the petitioner that he had not paid the entire agreed amount inspite of the repeated request and reminder of the O.P. No. 1 and it is also fact that the petitioner had not paid balance consideration money plus G.S.T. along with extra work charges.
That as the petitioner failed to pay the balance of consideration money amounting of Rs. 12,00,000/- only plus G.S.T. as applicable along with extra work charges of Rs. 1,86,950/- only thereafter O.P. No. 1 herein served a notice on 21/01/2019 upon the petitioner through registered post with A/D but the petitioner refused the same on 22/01/2019 and subsequently only to escape from his liability and the purpose of illegal gain and harassment the petitioner falsely lodged this case against the O.P. No.1 and others.
That the answering O.P. No. 1 herein most respectfully submits before this Ld. Commission that he is / was always ready and willing to handover the possession as well as execute appropriate deed of conveyance in connection with the relevant flat and garage in favour of the petitioner subject to the condition to pay the balance of consideration money plus G.S.T. as applicable along with extra work charges. It is to be noted herein that once the Ld. Advocate Sri Sunit Sarkar, on behalf of the petitioner sent a legal notice dated 30/10/2019 to the O.P. No. 1 and in reply to that Ld. Advocate namely Sri Arindam Datta, sent a reply dated 13/11/2019 to the petitioner through registered post with A/D and stated the entire facts stated therein, the petitioner herein neither give any response to that letter dated 13/11/2019 nor acted properly to discharge his liability. As such it is crystal clear that the instant case has been filed by the petitioner by suppressing the real state of affairs and as such the case has no merit at all. So, the case is liable to be dismissed.
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 and denial of the written version of the opposite parties.
The answering opposite party 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 filed 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 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 is a resident of Bhadrakali, P.S-Uttarpara, 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. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 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 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 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) (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 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 complainant intended to purchase the residential flat alongwith garage which have been described in the B-schedule property at the total consideration money of Rs.3700000/- out of which complainant has paid Rs.2500000/- to the Op-1 and the balance consideration amount which is required to be paid by the complainant to the Ops is Rs.1200000/- alongwith registration charges and GST charges. It is also revealed from the evidence on record that the complainant has categorically stated that complainant is ready and willing to purchase the said flat and to execute and register the deed of conveyance by paying balance consideration amount to OPs and at the same the Op-1 in the evidence has also stated that they are ready to hand over possession and also ready to execute and register the deed of conveyance after receiving balance consideration amount alongwith registration charges and GST charges. On the background of the above noted admitted position the Op has taken the defence alibi that the OPs have incurred additional charges of Rs.186950/- which amount is also required to be paid by the complainant in favour of OP-1. But fact remains that in respect of this point of contention of incurring additional cost of Rs.1,86,950/- no cogent evidence or supporting evidence has been given by the Op-1. In view of such position this point of contention of bearing additional cost of Rs.186950/- by the OP-1 cannot be accepted.
However, as the complainant and the Ops are willing to execute and register the deed of conveyance and also willing to hand over possession of the B-schedule property in favour of complainant, the complainant side is entitled to get relief in this case in respect of points of consideration no.4&5 but in part. In this case the complainant side has prayed compensation of Rs.1000000/- and litigation cost of Rs.100000/- but in support of this claim of the complainant no cogent and supporting evidence has been furnished and for that reason this District Commission is not at all inclined to award any compensation or litigation cost in favour of complainant.
A cumulative consideration of the above noted discussion goes to show that the complainant has proved her case in respect of all the points of consideration adopted in this case and for that reason the complainant is entitled to get relief in this case in respect of all the points of consideration.
In the result it is accordingly
ordered
that the complaint case being no. 52 of 2020 be and the same is allowed on contest but in part.
Opposite Parties are directed to complete the construction work as per agreement dt.22.8.2017 and thereafter directed to hand over completion certificate and possession of the B-schedule property ( residential flat and garage) and also to execute and register deed of conveyance after receiving balance consideration money of Rs.1200000/- and registration cost alongwith GST charges. Otherwise complainant is given liberty to execute this award as per law.
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.
