In short, complainant’s case is that complainant initiated this case against three O.Ps. O.P. No. 1 being a partnership firm, O.P. No. 2 and O.P. No. 3 are also involved with O.P. No. 1 and altogether all O.Ps. are vendors and developers and the O.Ps. have executed an agreement for sale on 29.04.2017 with the complainant in respect of a flat which has been mentioned later on.
Complainant in paragraph no. 3 in the petition of complaint has mentioned various reference of relevant deeds and conveyance relating to the land in question whereupon O.Ps. have developed and constructed an ultra modern housing complex known as “PRINCE TOWN” and said plot of land is measuring about 13 Bighas 7 Cottahs 6 Chittaks 33 Sq.ft. more or less and in paragraph no. 4 and 5 complainant has also mentioned a vivid picture in details about the said land in question. Complainant alleges that he had a dire need of a residential unit in an around the above locality and after knowing about such project of O.Ps. under the name and style of M/s. Usashi Real Estate Pvt. Ltd. complainant visited the office of M/s. Usashi Real Estate Pvt. Ltd. i.e. office of O.Ps. herein and expressed his desire to purchase a flat in the building under construction. Thereafter, complainant was agreed to purchase a self contained flat on the 3rd Floor, at South West Side being measuring about 319.3 Sq.ft. super built up area more or less, at Phase – I, PRINCE TOWN at a consideration of Rs. 7,85,407/- and the complainant deposited Rs. 1,57,000/- by two cheques one cheque of Rs. 1,00,000/- dated 16.07.2016 and another cheque of Rs. 57,000/- dated 17.01.2017. Accordingly, complainant entered into an agreement for sale of the said flat in question mentioned in Schedule – ‘B’ of the petition of complaint on 29.04.2017 with O.P. Nos. 1, 2 and 3 through said M/s. Usashi Real Estate Pvt. Ltd. O.Ps. issued two receipts relating to the aforementioned payment of Rs. 1,57,000/- of the complainant.
Complainant alleges that as per said agreement for sale, O.Ps. supposed to hand over the said flat in question to complainant within 30.09.2020 from the date of agreement for sale i.e. 29.04.2017.
Complainant further alleges that even after completion of the assured stipulated period and inspite of several visits of complainant at the office of O.ps. they(O.ps.) on different pretexts tried to avoid the issue a handing over the flat in question. Complainant further alleges that finding no other option complainant issued a legal notice to the O.ps. demanding justice through his lawyer, but complainant did not get proper response from the end of O.ps.
Complainant further alleges that the acts and activities of the O.ps. are highly negligent and they are totally deficient in service and at the same time they are doing unfair trade practice. Ultimately, complainant under compelling circumstances has filed this case against O.Ps. for redressal of his grievances by making prayers (A to H) which has been mentioned in details in the petition of complaint.
O.Ps. have contested the case by filing written version denying all material allegations as highlighted by the complainant in his petition of complaint and contended inter-alia - that the instant case is not maintainable and the same is speculative and mala-fide, harassing and bad-in-law. O.Ps. have categorically stated that O.P. 1 is a private limited company incorporated under the Companies Act, 1956 and O.P. 2 is the Director of the O.P. 1. In the W/V O.ps. have not disclosed the status of O.P. 3 relating to O.P. 1.
O.Ps. allege that complainant has received various sorts of satisfactory services from every corner through O.P. 1 relating to every sort of mandatory and allied ancillary services from the O.ps.’ end when and whenever needed by the complainant till cessation of the agreement by virtue of a letter of the complainant and its acceptance by O.P. 1 through a letter.
O.ps. further state that as per point no. 16 and 18 of the said agreement for sale it has been specifically mentioned that if any dispute arises between the parties at first the matter be moved before the sole Arbitrator for ad-judication of the dispute, but complainant failed to do so, rather complainant preferred the instant case and as such instant case is liable to be dismissed.
O.Ps. further state that as per agreement for sale, time for 40 months period for delivery of flat in question to the complainant is not completed and before that complainant filed the present case and thus, instant case should be dismissed.
O.Ps. also state that the instant complaint is totally concocted and fascinating story without any base. It is also stated that by O.Ps. that complainant has ceased to be a consumer under the O.Ps. as per provision of the law on and from the very date when complainant has applied for cancellation of the agreement for sale.
Finally, O.ps. have prayed for dismissal of the case on the grounds stated therein.
Points for Decision
- Whether the complainant is consumer to the O.Ps. ?
- Whether this Commission has territorial and pecuniary jurisdiction to try and entertain this case?
- Whether there is any deficiency in service or there is any unfair trade practice on the part of the O.ps. ?
- Is the complainant entitled to get relief as prayed for?
Decision with reasons
For the sake of convenience and brevity of discussion, all the points are taken up conjointly for discussion.
On close scrutiny of the materials on record, it appears that complainant is a consumer u/S 2(7) of the C.P. Act, 2019 to the O.Ps.
Complainant appears to be a resident of Dum Dum, North 24 Pargana, Kolkata – 700130.
Whereas, the address of O.P. 1 is at 594/1, Dakshindari Road “Bima Abasan”, Flat No. E2/1, First Floor, P.O. – Sreebhumi, P.S. – Lake Town, Kolkata – 700048. O.P. 2 resides at Shibpur, Howrah, O.P. 3 is residing at Rabindra Pally, Seuri, District – Birbhum. Considering the nature of the case and the prayers of the complainant it clearly indicates that the subject matter of dispute is nothing but a consumer dispute and it straight way gives clear signal that pecuniary value of the case is within Rs. 50,00,000/- i.e. within the limit of this Commission. So, this Commission has territorial/pecuniary jurisdiction to entertain and try this case.
In support of his case, complainants have filed evidence on affidavit which appears to be a replica of the contents of the petition of complaint.
It may be noted that O.ps. in support of their case have not filed any evidence on affidavit.
We know very well that evidence means examination in chief and cross examination. Here, under provision of C.P. Act complainant or O.ps. is/are required to file examination in chief and accordingly O.Ps. or complainant got chance for filing questionnaire i.e. the cross examination in true sense of the term. Moreover, O.Ps. or complainant as the case may be will get chance for filing reply thereto. In the instant case before our hand as no evidence on affidavit is filed on behalf of the O.ps., so, it can safely be concluded that the allegations or the statements made by the O.ps. in their W/Vs have not been proved at all.
It appears further that in his evidence, complainant has fully corroborated his case as depicted in the petition of complaint and the documents filed by him also lend support to his case. Therefore, in view of the said evidence of the complainant and the documents filed by him, which in fact, remained unchallenged as O.Ps. have not filed any questionnaire. Accordingly, it can safely be noted that until and unless any contrary is proved the unchallenged testimony of complainant inspires this Commission to come to the conclusion that complainant has succeeded to prove his case and he is entitled to have the reliefs as prayed for.
Hence, it is,
Ordered
that the instant case being No. CC/182/2021 be and the same is allowed on contest against O.P. 1, 2 and 3 with cost.
O.ps. are directed jointly/severally to cancel the agreement for sale in respect of the ‘B’ Schedule Property/flat in question along with its undivided proportionate share of land out of Schedule A property including all other amenities, facilities and rights arising out of the agreement dated 29.04.2017 within two months from the date of this order.
O.ps. are directed jointly/severally to refund/pay Rs. 1,57,000/- to the complainant with an interest @ 8% per annum with effect from 29.04.2017 till realization of the entire amount and O.ps. are directed to pay the same within two months from the date of this order.
O.ps. are also directed jointly/severally to pay Rs. 50,000/- to the complainant as compensation towards harassment, anxiety within two months from the date of this order.
O.ps. are further directed jointly/severally to pay Rs. 10,000/- to the complainant towards litigation cost within two months from the date of this order.
Let plaint copy of this order be supplied to the parties free of cost.
Dictated and corrected by
[HON'BLE MR. Shri Sankar Kumar Ghosh]
PRESIDENT
