In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.

Case No. CC/155/2022.

Date of filing: 27/07/2022.                     Date of Final Order: 22/10/2024.

Sri Arun Kumar Adgiri,

Son of Khagendra Nath Adgiri.

Flat No.C-11/16, Dankuni Housing Estate,

 P.O.& P.S. Dankuni, Dist. Hooghly. Pin. 712 311.                              …..... Petitioner.

  -Versus  -

1. Parivar Enclave Private Limited,

Represented by its Managing Director

Mr. Manoj Kumar Ghosh,

having Office at- 14F, Everest House, 46C,

Chowringhee Road, P.O. Middleton Row.

P.S. Shakespeare Sarani, Kolkata-700071

And Corporate Office at 315. B.B.D. Road. Hindmotor,

District Hooghly. Pin. 712233.

2. Field Manager,

Parivar Reign,

A Project of Parivar Enclave Raxi Private Limited,

Flat No.A-606 & 607 528, G.T. Road, Bhadrakali (Hindmotor).

Opp. Shibtala Gas Office.

under Uttarpara-Kotrung Municipality.

P.O. Bhadrakali, P.S. Uttarpara, District- Hooghly. Pin. 71223.

3. Mr. Manoj Kumar Ghosh,

Son of Mr. Ajit Kumar Ghosh,

14F, Everest House, 46C, Chowringhee Road.

P.O. Middleton Row, P.S. Shakespeare Sarani, Kolkata – 700071.

And 315, B.B.D. Road, Hindmotor,

District Hooghly, Pin. 712233,

And 52B, G. T. Road, Bhadrakali (Hindmotor).

Opp. Shibtala Gas Office, under Uttarpara- Kotrung Municipality.

P.O. Bhadrakali, P.S. Uttarpara, District -Hooghly. Pin.712 232,

And Parivar Enclave Pvt. Ltd..

16A, Abdul Hamid Street, 04th floor,

Room No. 404, Kolkata-700069.

4. Somani Realtors Private Limited.                           ………….Opposite Parties.

5. LIC Housing Finance Ltd..

having its Registered Office at

Bombay Life Building, 2nd Floor.

45/47, Veer Nariman Road, Mumbai-400001.

having its Area Office at

Andhra Insurance Building, 3rd floor,

12, Chouringhee Square, Kolkata-200069.

6. The Chairman,

Uttarpara Kotrung Municipality Uttarpara,

Dist. Hooghly, Pin. 712258. ……....Proforma 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 the complainant having attracted with the advertisement Companies of the new residential project by the Opposite Party No.1 in the name of Opposite Party No.2 and represented by Opposite Party No.3 through his agent Opposite party No.4 booked the Application Form upon payment of money of Th. 1,03,000/- on 24/02/2013 through Cheque for the Flat bearing No.404 at 03rd floor bf Block-'B' having area 834 Sq.ft. (more or less) at the rate of 5.2475/- per Sq.ft. plus extra. 50,000/-(Fixed price) for open two Wheeler parking space in ground floor being No. GFT-2 which is clearly mentioned herein below in schedule 'B' after conveined by the Opposite Parties facilities, amenities and legalities of the construction with promises to timely deliver.

That the Opposite Parties No.1 and 3 after booking the 'B' schedule property which is clearly mentioned in schedule entered into an agreement on 20/03/2013 with the Complainant Intending purchaser and the Opposite Party No.1 is the owner cum Developer and Opposite Party No.3 in the Confirming Party and Director of Project-cam- Field Manager with a condition that the rest amount to be paid as per agreement dated 20/03/2013.

That for purchasing of the 'B' schedule Flat which is clearly mentioned herein below along with two wheeler parking total consideration money is 21,14,150/- and the said purpose an amount of Rs.3,22,900/- was paid to the Opposite partyNo.1 on 20/03/2013 and Rs.2.9.978/- as Service Tax.

That the complainants due to his paucity of fund and order to rest due amount towards purchase of the said 'B' Schedule Flat which is clearly mentioned obtained a loan from Opposite Party No. 5 of is. 15,50.000.00 with the condition time to time pay as per development of the construction of the 'B' Schedule property which is clearly mentioned herein below and which is part and parcel herein below of the 'A' schedule mentioned and for that purpose a Tri- partite agreement has been made with complainant and between the Opposite Party No.1 and opposite Party No. 5 on 21/10/ 2014 and the complainant has taken responsibility of the rest of the amount other than the payment already made and loan amount already agreed by and between the parties.

That subsequently another registered Agreement for sale have been made on 03/12/2014 by the Opposite Party and complainant for the purpose of purchase of the 'a' and 'C' schedule property which is clearly mentioned herein below over the 'A' Schedule mentioned property.

That on 31/10/2014 the Opposite party No.5 as per agreement has been released of Rs.8,45,700/- as first Installment and subsequently 24/01/2015 second installment of 2,00,000/- third installment of 1,17,200/- on 20/02/2015, Fourth Installment 77,934/- on 09/05/2015 and Fifth installment of Rs.1,30,000/- on 19/08/2015 to opposite party No.1 to 3.

That the complainant paid Rs.30,000/- on 17/10/2016 for extra work and also paid Rs.1,61,150/- for the purpose of executing the agreement for Sale and registration on 22/11/2014, 26/11/2014. 27/11/2014 and 03/12/2014 respectively but the Opposite Party No.1 has not been issued of receipt of Rs.35,000/- nearly.

That complainant so far Rs.18,36,802/- (Rupees Eighteen lakhs thirty six thousand eight hundred two) only has already been paid towards the purchase of the aforesaid flat along with parking starting from February. 24, 2013 to October 17. 2016 and all such payments have duly been acknowledged with receipt by the developer company and in adaption to that Rs. 1,61,150/- (Rupess One Lakh sixty one thousand one hundred fifty)only has also been paid for the purpose of agreement for sale and allied documentation. Hence, total of Rs. 19,62,952/-(Rupees Nineteen lakhs sixty two thousand nine hundred fifty two)only has already been paid against the total purchase value of the property and approximately Rs. 1,51,198/- (Rupees One Lakhs fifty one thousand one ninety eight only) is left to be paid as per the agreement which the purchaser was willing to pay to the developer until he came to learn that the construction is absolutely illegal.

That the Opposite Party Nos. 1 to 3 time to time made request for due payment deposited receiving the major portion of the complainant’s value having left with a minor amount. It is imperative to mention that despite there was an agreed amount for sale, the Opposite party No.1 to 3 has claimed for extra amount of money by falsely showing the extra square feet which was never agreed by and between the parties at the time of agreement. That the Opposite Party No.1 to 3 has enhanced the amount of purchase value of the property along with parking and started demanding extra amount in violation of the agreed terms and conditions which is not permissible in the eye of law. That despite such excessive and illegal demand in the garb of additional square feet which was never agreed upon between the parties, the opposite party no.1 to 3 have been trying to collect extra money from the Complainant in an absolute illegal and unfair manner and even though the major amount has already been paid by the Complainants to the opposite Party No. 1.

That the Complainant herein had made several written and oral requests to the Opposite Party No.1 to 3 to handover the property upon accepting the actual value of the property and get the property registered in the name of the Complainant. That the Complainant also requested the Opposite Party No. 1 to 3 to cooperate with the Opposite Party No. 5 and thereby provide necessary documents because of the fact that according to the tripartite agreement upon development of construction, the loan amount is released and the remaining part can only be released upon final completion and handing over of the flat to the Complainant upon registration. That since the OP Nos. 1 to 3 is not handing over the flat and getting it registered in the name of the Complainant, the Opposite Party No. 5 is also not being able to release the remaining amount. That neither the OP No. 1 to 3 is handing over the flat to the complainant by providing the completion certificate nor is submitting the required documents to the OP NO. 5. That the OP No. 1 to 3 is neither honoring the terms and conditions of the agreement for sale nor it is completing the work stage by such according to the tripartite agreement with the OP No. 5 for which the complainant has been deprived of getting hold of the property. That the unjustified demand of money of the developer for 988 sq.ft. in lieu of 834 sq.ft. for which the complainant has agreed (including super built-up area 20%) cannot be compelled to be an extra amount at the whims and fancies of the OP No.1 to 3.

That even though the OF No.1 to 3 are claiming to have allotted 988 Sq.ft. (in lieu of 834 Sq.ft.) by and between the parties, however, the truth remains that only covered area of flat 806 sq.ft. and 24% super built up area 167.0 Sq. ft. (total area of flat 967.0 Sq.ft.) has been allotted/in the Complainant and the same was duly measured by the complainant through Municipal Engineer.

Therefore, the Opposite Party No.1 to 3 violating the terms of agreement for sale had allotted 988 Sq.ft. in lieu of 834 Sq.ft. even though the complainant had not made any demand for the same. Moreover, even though the complainant tried to extract money for allotment of 988 Sq.ft. but upon measurement it appears that only 967 Sq.ft. has been allotted. That the Complainant neither requested for any extra square feet nor is ready to pay for the additional square feet allegedly allotted to the complainant in violation of the terms of agreement.

That despite making several representations and reminders, the concerned authority has not honored its commitment and acted in terms of the agreement and thereby deprived the complainant for getting the property which was due to be handed over on March 20, 2016 (within 36 months from the date of agreement) but unfortunately the said property has not yet been handed over to the Complainant even though the maximum amount of purchase value has already been paid and the Complainant was ready to pay the rest of the amount upon release of the already obtained loan amount from the finance company at the time of registration. That the Opposite Party No. 1 to 3 are not handing over the property nor is it co-operating for registration, which is absolutely illegal and unsustainable in the eye of law. It is further stated that even though the Complainant could not receive the property but for the obtained loan every month EMI along with interest is being paid which is causing huge loss to the complainant as neither the complainant could enter into the property nor got the same registered, but for the same every month monthly installment along with interest is being paid prejudicial to the right and interest of the Complainant.

That the complainant had high estimate and faith in the Parivar Group so far construction is concerned, but after being duped and cheated by Opposite Party No.1 to 3 the Complainant made queries about the construction. It has been learnt that vide order issued by Memo No.4/2134 dated August 18, 2016the concerned Chairman of Uttarpara- Kotrung Municipality categorically asked to show-cause and stop construction of 52B, G.T. Road, Bhadrakali, Hooghly in ward No.8, vide office Memo No.4/1501 dated July 09, 2015. That the Opposite PartyNo.1 to 3 was also asked to appear before the sold Municipality regarding the matter of illegal construction on April 20, 2016 vide Office Memo No.4/1001 dated April 07, 2016 with relevant papers but the Opposite party No.1 to 3 had avoided the same.

That from the said order of the Opposite Party No.6 it clearly appears that as per the resolution of Board of Councilors passed on June 29, 2016 the developer was directed to demolish the unauthorized construction/deviated portions within fifteen days from the date of receipt of the notice.

That from the said communication the nature of deviation also made specific in the following :-

1.  Construction in ground floor area on the Western side 428 sqm. instead of 230 sqm.
2. Construction of 1st, 2nd, 3rd, 4th, 5th floor area on the Western side 428 sq.m.each floor instead of 230 sqm.
3. Construction of ground floor area on the Eastern side 331 sqm. instead of 266.40 sqm,
4.  Construction of 1st and 2nd floor on the Eastern side 416 sqm each floor instead of 303 sqm.

That the flat the complainant has been promised comes under the illegal construction portion and knowing fully well the Opposite Party No.1 to3 had entered into an agreement for sale with the complainant of the illegal construction.

That in response to the application made by the Complainant under the Right to Information Act, 2005 dated- September 20, 2021 the concerned Municipality / Opposite Party No.6 vide issuance of Memo No.RTI/8/5208 dated November 09, 2021 categorically stated that the whole construction in which the Complainant has purchased flat 1.e. Parivar Reign under Parivar Enclave Private Limited at 52B, G. T. Road, Bhadrakali (Ward No.8). District Hooghly. Pin. 712232 was not done as per valid sanctioned plan. It was further informed that no prayer has been made for completion certificate for the said housing project in which the complainant has booked flat. It has also been informed that the concerned municipality will not allow mutation and recording of name of any flat purchased in the said project. It was also disclosed that no mutation has been granted to the residents of the said flat and only tax receipt as occupiers has been issued to the unlawfully residing occupants in the said illegal construction.

Therefore, it is evident that the opposite Party No.1 4 has deliberately constructed an illegal construction and with full knowledge of the same the O.P.No.1 to 4 has entered into an agreement with the Complainant for purchase of a flat as aforesaid and also compelled the complainant to enter into an agreement with the financier for purchase of the said flat. That with deceitful intention and evil purpose of cheating and defrauding the complainant the O.P.No.1 to 3 has compelled the complainant to enter into such agreement and extracted money for the same so far to the tune of amount of Rs. 19,62,952/-(Rupees Nineteen Lakhs Sixty two thousand Nine hundred fifty two) making the complainant to believe that the same project is a legal construction.

There is a clear intent of unfair trade practise. cheating, playing fraud and deceitfully intending the complainant to enter into a financial transaction for purchase of flat in a complete illegal construction for personal gain of the Opposite Party No. 1 to 3. That there is a criminal breach of trust, conspiracy and absolute falsehood in suppression of material fact of the absolute illegality of the construction and thereby extracted a hefty amount from the complainant in absolute unlawful manner. If the purchaser had known about the illegal construction of the property, then at no cost the complainant would have entered into such agreement for purchase of a flat in a totally disputed and illegal construction.

That due to such illegal and unlawful activity on the part of the opposite party no.4 the complainant had to take huge loan from the financial authorities and till date the complainant is meeting the refund expenses with Interest without having any occupancy and rightful transfer of ownership of the flat in the name of the Complainant, which the complainant could have avoided if the Opposite party no.1 to 4 had not dragged the complainant in to the deal. That complainant ought not to have been induced into the agreement for purchase of flat on the belief of the legality of the construction as the same was kept secret from the complainant with a false promise of handing over a fair construction in the garb of an illegal construction.

That the complainant had purchased the property at the western side of the project and regarding that side the demolition order has been passed for deviation from the Sanctioned Plan. That from the said order, it is clear that how the opposite party No.1 to 4 had constructed the flat of the complainant in excess of the agreed measurement of the flat and why the & Opposite Party No. 1 to 4 could not handover the flat to the complainant which was to be done within 36 (thirty six) months from the date of agreement ie. in the year 2016. It is evident from the order Passed by the Opposite party No.6/competent authority that the O.P. No.1 to 4 has deliberately deviated from the sanctioned Plan and build an unauthorized construction in the said project in which part the Complainant has purchase his own flat. That the Opposite Party No.1 to 3 has not participated in the hearing process nor it has adhered to the direction of the Opposite Party No.6 competent authority which clearly snows the fraudulent intention of the developer for which it has not yet delivered the Flat to the Complainant and failed to show the completion Certificate which amounts to unfair trade practice.

That the complainant became aware of such illegal construction only recently and upon finding such illegality in the construction, specifically at the purchased flat, the complainant got a huge shock and surprise that behind the back of the complainant and in violation of the terms of the agreement, the developer has illegally constructed the property in deviation of the sanctioned plan. That the Opposite Party No.1 to 4 have on its own deviated from the sanctioned plan and has illegally constructed the property for which excess money has been demanded from the Complainant which is not only a fraudulent act, but a criminal implication and unfair trade practise.

That had the complainant known about such illegality in the construction, then the complainant never accepted to purchase the property. Since behind the back all illegalities have been committed at a much later stage, the complainant came to learn about such illegality. Now, the complainant does not want to associate himself and encourage such illegality as a low abiding citizen and does not want to impose upon himself with the consequence for violation of law for purchasing the property. That upon enquiry the complainant has come to learn that due to such illegality, the properties could not be mutated in the name of the Complainant and those who have already purchased flat in the said project fall into the trap of the Opposite Party No.1 to 3 and could not get their flat mutated with the concerned municipality. That due to such illegal construction, the said property can any time demolish, specifically the complainant flat which fall within the western part of the building. That knowing about such illegality, the complainant does not want to incur upon himself the illegal consequences and deprive himself for not being able to mutate the name of the property and other future consequences.

That the Opposite Party No. 1 to 3 has not only viola- ted the terms of the agreement so far handing over of the flat is concerned within specific period of time i.e. 36 (thirty six) months but has also failed to get the property registered in the name of the complainant and to show the completion certificate despite receiving only 85% and more of the value of the property. Along with the same, the said property is also slapped with an order of demolition for unauthorized construction.

That the complainant had made representations to Opposite Parties No.1 to 3 in your registered address several times on 11-12-2021 and 21-12-2021 claiming the legitimate dues and specific redressal but neither your Opposite Parties No.1 to 3 received the letters nor respondent even if Opposite Parties No.1 to 3 received the same which clearly shows the deceitful intention and malice. That deliberately Opposite Parties No.1 to 4 had evaded from receiving the claims of the Complainant to strike off their responsibility under law.

Complainant filed the complaint petition praying direction upon the opposite party nos. 1 to 3 to pay a sum of Rs. 19,62,952.00/- along with 12% p.a. interest and to pay a sum of Rs. 10,00,000/- as compensation and to pay a sum of Rs. 10,00,000/- for harassment, mental agony and pain and to pay a sum of Rs. 5,00,000/- for litigation cost.

Defense Case:-  The proforma opposite party Nos. 5 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the complainant applied to the Answering NBFC at the Kolkata South branch of the Answering NBPC for financial assistance for the purpose of purchase of one flat being Flat no. 404, Block B, Parivar Reign, 3rd Floor, JL No- 9, Holding no- 52B, PS- Uttarpara, G.T. Road, Hooghly, West Bengal, Pin-711101 (hereinafter referred to as the 'said Property' for the sake of brevity) and offered the said Property as security against such financial assistance.

After considering the application of the complainant the Answering NBFC sanctioned the loan vide its Loan Sanction Letter dated 30.09.2014 and such financial assistance amounting to Rs. 11,75,700 was disbursed to the complainant in 3 installments viz Rs. 8,45,7000, Rs. 2,00,000 and Rs. 1,30,000 vide cheque nos. 145636, 151579 and 167046 dated 31.10.204, 24.01.2015 and 29.07.2015 respectively.

As per the loan agreement dated 20.03.2013 entered into between the complainant and the Answering NBFC such financial assistance was be repaid by the complainant in 156 number Equated Monthly Installments (EMI) amounting to Rs. 17,940/- each.

The complainant commenced repaying the loan by paying his first EMI on 23.12.2014. The Answering NBFC states that the complainant has regularly paid his EMI along with interests and no payment default was committed by the complainant during the tenure of the loan.

The Answering NBFC further states that the said loan account of the complainant was closed on 10.08.2022. The Original documents are in our custody and can be collected by the Complainant from LICHFL Kolkata South Branch any day during working hours subject to prior notice.

That from the above stated facts, circumstances and documents clearly establishes the fact that, the complainant has approached this Hon'ble Commission With unclean hands and the current complaint is nothing but an abuse process of law.

That the present complaint is frivolous and vexatious and ridden with allegations of deficiency in services but the present complaint miserably fails to co-relate the facts and incidents in order to prove any deficiency in service. Complainant failed to prove any act as alleged in the whole of the complaint that points out any deficiency in service on the part of the Answering NBFC. Hence, the present complaint is not maintainable. So, the complaint is liable to be dismissed.

The proforma opposite party Nos. 6 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the Opposite Party No. 1 Mr. Manoj Kr. Ghosh the Managing Director of Paribar Enclave Private Limited has raised one illegal and unauthorized construction in respect of the Municipal holding being No. 52 B, O.T. Road. Uttarpara and he directed demolish legal deviation of building plan sanction by this Municipality for which this Municipality has compelled to file one suit for declaration and injunction vide Title Suit No. 262/17 before the 1^st Civil Judge (Jr. Divn) at Serampore, Dist, Hooghly along with ad-interim order of Injunction restraining that defendant not to make any further construction and also not to alienate the suit property to the Third Party and the Ld. First Civil Judge Court, Junior Division at Serampore has been pleased to pass order in favour of the Uttarpara Kotrung Municipality and the said order of ad interim injunction is still and the matter in question is still subjudiced before the Ld. Court.

This Municipality is not aware of the alleged loan from the Opposite Party No. 5 and further the alleged Registered Agreement for Sale on 03/12/2014 in respect of the B and C Schedule Property is not known to this Opposite Party.

That due to illegal construction raised by the Opposite Party No. 1 the Municipality has been compelled to ask for show cause and stop construction at such 52B, G.T. Road, Bhadrakali, Hooghly and such notice was served upon the opposite party No. 1 but the ill-motivated opposite party No.1 has always tried to avoid the same and illegal construction was still carrying out for which the opposite parties has circulated the said matter of injunction with the order of the Ld. Court has published in a daily newspaper but the shrewd opposite party No. 1 not only avoided the order of the Ld. Court but also throwing dust before the Ld. Court. Municipality has tried their level best to convince the Dare Devil opposite party but the ill motivated opposite party No. 1 has not complied with the direction of demolition of the unauthorized construction. So, the complaint 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:-

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 and denial of the written version of the opposite parties.

            The answering proforma opposite party no. 5 filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

            Proforma Op no. 6 has filed a petition for treating their W/V as their evidence on affidavit.

Argument highlighted by the ld. Lawyers of the parties

Complainant and proforma opposite party no. 5 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 ld. Advocates of the complainant and the proforma opposite party nos. 5 and 6 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 the apartment which has been mentioned in the complaint petition has been illegally constructed by Op-1 to 4 which is clearly revealed from the written version, evidence on affidavit and documents filed by OP-6 Uttarpara and Kotrang Municipality.  But fact remains that this matter has not been challenged by the OP-1 to 4 either in this case or in the case which is filed by OP-6 before Ld. Civil Judge(Jr. Division) First Court Serampore Hooghly.  It is also revealed that Ld. Civil Court has been pleased to pass an order of injunction in the matter of alienating / transferring the suit property to the 3^rd party.  Moreover, the OP-1 to 4 inspite of service of notice being neither appeared before this case nor filed any written version in the matter of contesting this case.  This matter is clearly reflecting that the point of contention which has been adopted by complainant side and OP-5 and 6 remained unchallenged and / or uncontroverted.  Inspite of getting sufficient opportunity the Op-1 to 4 also have not filed any evidence on affidavit.  Thus it is crystal clear that the evidence given by complainant and OP-5&6 remains unchallenged and uncontroverted.  There is no reason to disbelieve the unchallenged testimony and complainant side.

It is also revealed from the evidence on record that the complainant has already paid Rs.19,62,952/- to the OP-1 to 4 and the said OP-1 to 4 issued money receipt.  It is also reflected from the evidence on record that the complainant has also paid the bank loan which was taken by the complainant in the matter of purchasing the B-Schedule property which has been described in the complaint petition.  There is no controversy over the issue that the Op-1 to 4 have not yet delivered possession and issued completion certificate in favour of the complainant.  In view of such position the complainant is entitled to get back the consideration money of Rs.19,62,952/- alongwith interest @ Rs.9% per annum in view of the decision of Hon’ble Apex Court which is reported in AIR 2022SC1824.

            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. 155 of 2022 be and the same is allowed on contest against OP-1 to 4 but in part but it is dismissed against OP-5&6 as there is no claim against OP-5&6.

The OP-1 to 4 are directed to refund the amount of Rs.1962952/- alongwith interest @ Rs.9 per cent per annum from the date of filing of this case (27.7.2022) and also to pay compensation of Rs.100000/- and to pay litigation cost of Rs.10,000/- to the complainant within 45 days from the date of passing of this judgment.  Otherwise the 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.