In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/136/2021.
Date of filing: 26/10/2021. Date of Final Order: 15/03/2024.
- Reena Ray,
w/o Rahul Ray,
- Atreyee Ray,
d/o Rahul Ray,
both are residing at “Awhan Abasan”,
Palpara, P.O. & P.S. Chandannagar,
Dist. Hooghly, PIN. 712136.….complainants
vs
- Mr. Nand Kishore Lakhotia,
s/o Late Sitaram Lokhatia,
r/o at 493/CA, G.T. Road (South),
P.O. & P.S. Shibpur, Howrah-711102,
The sole proprietor of M/S Shakuntala Developers,
A proprietorship firm,
Having its registered office at 545, G.T. Road (South),
P.O. & P.S. & Dist. Howrah-711101.
- Mr. Subrata Moulik,
s/o Late Rabindra Kumar Moulik,
r/o 93/A, Mankundu Station Road,
Circus Math, P.O. Mankundu,
P.S. Chandannagar, Hooghly, PIN. 712139.…..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 complainants stating that the complainants entered into an ‘Agreement to Sale’ on 3rd day of January with the OPs at a lump sum amount of Rs.3680075/- for the purchasing a residential flat and garage as mentioned in the agreement as described in the schedule herein below. The OPs are lawful promoter and owner respectively of multi-storied building cum residential flat namely Shakuntala Regency situated over the “A” schedule mentioned property. As per agreement the complainants has taken loan from State Bank of India, Chinsurah Branch as per instruction of the Op-1. The OPs agreed to sale out the flat no.IC-104 in the east-west side on the first floor of Shakuntala Regency which is specifically mentioned in the schedule B measuring approximately 1325 sq.ft. be same a little more or less including 25% super build up area and a garage open space on the ground floor of the said building. As per the said agreement the developer and owner i.e. OPs assured the complainants the construction of the said flat as well as the building will be completed within two years from the date of the agreement but as per agreement the OPs have not completed the construction which they stated. It is astonishingly stated here that the entire loan amount has been disbursed by the concerned Bank in favour of the Ops in respect of the said flat and garage, as per banking norms as slab but after receiving the same the Ops day by day ignored the complainants and have not stated any positive state of mind so in this way the Ops harassed the complainants.
The complainants rushed to their Ld. advocate and the Ld. advocates has issued a demand notice dated.12.7.2021 through registered post with A/D to the Ops with a request to make proper construction as per agreement and also requested to execute Deed of sale in favour of complainants in respect of schedule B premises alongwith garage. But the Ops after receiving said letter tried to hash up the complainants actual grievance so the Ops cleverly ignored their liabilities towards complainants and also complainants by obeying banking norms paid EMIs regular basis. So after receiving the said letter the Ops with an ill motive tried to hand over the keys of residential flat in an incomplete condition. After entering into the said flat as alleged and introduced by the OPs, it reveals to the complainants, there were so may damages which clearly noticeable the sufficiently damaged floor, tiles of the two bathrooms of the flat, the damp outside wall of the bathroom, the damaged wall alongwith frame of the door of the bedroom, heavily damaged lower portion of the balcony-door, the joint between balcony railing and wall and the rusty pillar faucet of the basin.
After lapse of two years from the date of the agreement it is duty bound by the OPs as per agreement, to provide the complainants a completion certificate and a possession certificate handover to them before or after registration. But the Ops have not taken any willful step towards registration. After proper enquiry by the complainants it reveals to them, the entire loan amount in respect of house building to disburse in favour of OPs as banking rules as per slab but it is unfortunately stated here that till today the OPs have not declared to the complainants as well as their banker in regard completion and possession certificate and the banker is hanged due to ops not properly taking any step towards registration as well as due to their willful abstinence.
The complainants have already performed their part as per agreement for sale but the ops are silent for making their part performances and also silent from registration of “sale deed” in favour of the complainants in respect of B scheduled flat along with garage, hence the complainants finding no other alternatives being a consumer have filed this case before the Commission and the cause of action of this suit arose on 12.7.2021 when the complainants demand for their grievance against ops in respect of B scheduled flat along with garage in the building ‘Shakuntala Regency” situated at holding no. 93/ A, Mankundu station road, P.S. Chandannagore, Dist. Hooghly within jurisdiction of this Commission.
Complainant filed the complaint petition praying direction upon the opposite party to make construction as per agreement for sale in respect of B schedule property and to execute a deed of sale in favour of the complainant in respect of B schedule flat along with garage covered are approximately 1325 sq.ft. be same a little more or less including 25% super built up are together with undivided proportionate share of land along with proportionate share of common area and facilities and garage attached to the said building and to pay a sum of Rs. 2,50,000/- for mental agony and to pay a sum of Rs. 1,80,000/- as compensation as well as litigation cost and to pass any other order/ orders as deem fit and proper.
Defense Case:- The opposite party no. 1 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the complainant willfully playing fraud practice upon the op as well as upon the ld. Forum as due to cordial relationship between the parties and on good faith the developer/ op no. 1 hand over possession of the flat to the complainant before registration and still many amount outstanding from the complainant and the complainant has intention for non payment of outstanding for this reason, this false and frivolous case made out. Thus, the complaint case should be dismissed with exemplary cost.
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 party no. 1.
The answering opposite party no. 1 filed a petition for treating their W/V as their evidence on affidavit so it is needless to discuss.
It appears from the case record that after servicing summon upon op no. 2 the postal envelope returned to the District Commission as mark “deceased”. Therefore the name of the op no. 2 has been expunged from the cause title of the complaint petition vide order no. 11 dt. 19.01.2023.
Argument highlighted by the ld. Lawyers of the parties
Complainant and opposite party no. 1 filed brief notes of argument. 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 Advocates of the complainants and the opposite party no. 1 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 party no. 1 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 him.
It is also mention that the opposite party no. 1 also has 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 Chandannagore, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed within a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case according to u/s 34 of the Consumer Protection Act. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainants 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. Complainants are consumer in the eye of law.
All these factors are clearly depicting that this case is maintainable and complainants are consumer of the opposite party no. 1 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 no. 1. 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 party no. 1 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 complainants with the evidence on affidavit filed by the opposite party no. 1 and on close compare of the documents filed by both parties it appears that the complainants filed money receipts and bank statement from which it seem that the complainants paid total amount of Rs. 35,90,668/- (thirty five lakhs ninety thousand six hundred sixty eight only) to the op no. 1/ developer for purchasing a residential flat being no. 1C-104 on the first floor of Shakuntala Regency about 1325 sq.ft. having 3 BHK along with garage on the ground floor comprised of holding no. 93/ A, Mankundu station road, P.S. Chandannagore, Dist. Hooghly. It also transpires from the documents that the complainants have taken loan from SBI Chinsurah Branch and the entire loan amount has been disbursed by the said bank in favour of the op no. 1/ developer.
For supporting this complaint case Ld. Advocate for the complainants filed decision by Hon’ble Apex Court in the Civil appeal no. 6044 of 2019 between Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor. It is observed that as per agreement clause 13 provided for delay compensation i.e. Rs. 7.50 per sq.ft. per month till possession is offered to the consumer but in this compliant case there is no such clause laid down in the agreement for sale.
Another citation filed by Ld. Advocate for the complainants i.e. Hon’ble National Consumer Disputes Redressal Commission in consumer case no. 3717 of 2017 on 29th December, 2022. It is observed that complainants prayed for an alternative prayer for refund of their consideration amount with interest. But in this complaint case the complainants have not praying for alternative prayer to refund money.
Further filed by complainants’ Advocate one citation i.e. Hon’ble Apex Court in M/S Ashok Investment Company vs. M/S United Tower India Pvt. Ltd. 2023 (1) ICC 985 (SC). It is observe that in the above case there is an alternative prayer filed by the complainant for refund money with 18% interest. But in this complaint case the complainants have not praying for refund money so there is no question for interest.
Now the actual fact remains that no deed of conveyance was executed and registered in respect of the said flat and garage in favour for the complainants by the op no. 1 which was/ is very much essential for this complaint case. It is clearly evident from the documents filed by both the parties that both complainants and the op no. 1 blamed each other for not executing the said flat along with garage registered and sending notice to the other party for doing the same but ultimately of no result.
So, we are of opinion that though it is crystal clear that the op no. 1 is still bound to do the execution and registration of the said flat along with garage which was never done by him, without showing cogent reason for which we award the adequate compensation and litigation cost in favour of the complainants against the op no. 1.
Under the above discussion goes to show that the complainants have proved their case in respect of their claim and so the point 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. 136 of 2021 be and the same is allowed on contest against op no. 1 with cost.
Opposite party no. 1 is directed to execute and register a deed of sale in favour of the complainants in respect of B schedule mentioned flat on the 1st floor along with garage on the ground floor and deliver peaceful possession in favour of the complainants within 45 days from the date of this order.
The op no. 1 is further directed to pay compensation amount of Rs. 1,00,000/- ( Rs. One lakh) for mental harassment and Rs. 20,000/- for cost of proceeding in favour of the complainants within 45 days from the date of this order.
Complainants are at liberty to put the final order into execution after expiry of 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.
Dictated and corrected by me.
