West Bengal

Darjeeling

CC/18/2021

Paresh Chandra Tamang - Complainant(s)

Versus

Prabesh Mani Rai - Opp.Party(s)

27 Jun 2023

ORDER

Govt. of West Bengal

Office of the District Consumer Disputes Redressal Commission,

Darjeeling.

24, M.C. Road, Chota Kak Jhora, P.O & Dist: Darjeeling( W.B)

Pin-734101
Phone:- 0354-2252305

Consumer Complaint No:- C.C- 18/2021
Date of Filing Date of Disposal
10/12/2021 27 /06 /2023
Complainant Opposite Party
1. Mr. Parash Chandra Tamang, 1. Shri. Prabesh Mani Rai,
S/O Late Subash Chandra Tamang, S/O Late Jams Rai,
2. Mrs. Lhakden Tamang, R/O Chandrapaldhura Chongtong,
W/O. Mr. Parash Tamang, P.O. Marry Bong, P.S. Pulbazar,
Both R/O. Kutchery Path, District:-Darjeeling-734102.
Pharine Villa,
P.O, P.S & Dist:- Darjeeling.
Pin-734101
Mob No. 7001945585.

Present:- Sri. Siddhartha Ganguli................ Hon’ble President-in- Charge
Smt. Bhawana Thakuri................. Hon’ble Member( Female)

Ld. Advocate for the Complainant:- Mr. Arbind Kumai.
Ld. Advocate for the O.Ps:- Mr. Sushant Rai.

Cont......P/2

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C.C- 18 of 2021
F I N A L O R D E R

Siddhartha Ganguli( President-in- Charge):- One application has been filed
by the Complainants u/s 35 of the Consumer Protection Act, 2019 alleging
deficiency in service against the Opposite Party for not handing over the
possession of the flat mentioned in the schedule of the complaint and
therefore, the Complainants filed this consumer complaint before this District
Commission praying for a direction to be given upon the Opposite Party either
to hand over the possession of the said flat in question or to refund the entire
consideration amount of Rs. 48,00,000/- (Rupees Forty Eight Lakhs Only) with
bank interest and also prayed for compensation, amounting to Rs. 10,00,000/-
(Rupees Ten Lakhs only) and cost of the proceeding amounting to Rs. 50,000/-
(Rupees Fifty Thousand only).
The sum and substance of the case of the Complainants is that the
Complainants, being husband and wife, had booked one residential flat
measuring about 1500 sq. ft including super built up area on the 3 rd Floor of
the building, which was being built over the piece and parcel of landed
property measuring more or less 0.0679 acres comprised under LR Khatian No.
2433, 2434 and 2397, LR Plot No. 24, 25, 23/505, 23/506, J.L. No. 24, Sheet No.
21, under Mouza Darjeeling, situated at Municipal Holding No. 18/5, Kutchery
Road, P.O.& P.S., Sub-Division and District: Darjeeling, butted and bounded on
the North, by land of Shri. Dawa Narbula, on the South, by land of Shri Rudra
Mani Ghatani, on the East, by land of Jhora and on the West, by land of Shri.
Upendra Sharma, by the O.P/Developer and the consideration amount of the
said flat was fixed at Rs. 48,00,000/- (Rupees Forty Eight Lakhs only).
It is the contention of the Complainants that one Development Agreement
was made by and between the Land Owner and the Developer, being Deed
No. 040100518 for the year 2018 for erection of multi-storeyed building over
Cont......P/3

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C.C- 18 of 2021

the land of the Land Owner and during the period of construction of the
building the Developer had offered for sale of flats in the said building on the
outright sale basis and the Complainants accepted the offer of the Opposite
Party and agreed to purchase the same at a total consideration of Rs.
48,00,000/- ( Rupees Forty Eight Lakhs) as per the terms and conditions made
between them.
It is the contention of the Complainants that they have paid total
consideration amount i.e Rs. 48,00,000/- (Rupees Forty Eight Lakhs only) to
the Opposite Party and the Opposite Party executed the deed of sale in favour
of the Complainants on 17.12.2019, being Deed No. I-040100728/2019,
registered on 24.12.2019, but the possession of the flat has not been handed
over to the Complainants and therefore, the Complainants filed this Consumer
Complaint before this Commission for appropriate reliefs from the Opposite
party as mentioned herein above.
The Complainants allege deficiency in service, negligence on the part of
the Opposite Party for non-delivery of the possession of flat in question within
the time frame which resulted harassment, agony, pecuniary loss etc and
therefore, the Complainants prayed for compensation to the tune of Rs.
10,00,000/- (Rupees Ten Lakhs only).
The Complainants along with the complaint petition filed some documents
such as copy of Voter I.D, Aadhar Card and Pan Card etc. but those are totally
irrelevant for deciding the case.
Notice has been sent upon the Opposite Party and the Opposite Party filed
Written Version against the complaint petition.

Cont......P/4

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C.C- 18 of 2021

The Opposite Party denies all the averments made in the complaint petition
but admitted that the Opposite Party had executed and registered the sale
deed in favour of the Complainants in the year of 2019 but as the construction
of the building was not completed by then the possession of the flat in
question could not have been delivered.
Further, there was a dispute cropped up between the Land Owner and the
Developer and the Land Owner went to the Civil Court and as the Ld. Civil
Court passed one injunction and subsequently due to the COVID-19 Pandemic
the Opposite Party/ Developer could not complete the construction of the
building but, he denied deficiency on his part and prayed for dismissal of the
case of the complainants.
During hearing, the Complainant No. 1 adduced evidence and filed Written
Affidavit-in-Chief and also filed one copy of Deed of Conveyance, being No:- I-
040100728/2019, dated 24.12.2019, from which it is seen that the Opposite
Party has executed and registered the Deed of Conveyance in favour of the
Complainants in respect of purchase of flat in question.
The Opposite Party did not adduce any evidence despite several chances
have been given to him.
The Complainants filed Brief Notes of Argument.
It is seen from the case record that the Opposite party has not filed any
evidence in this case and showed very reluctance during the proceeding of the
case and no Brief Notes of Argument has been filed on behalf of the Opposite
Party and the Commission has extended several dates to the Opposite Party
for filing Brief Notes of Argument. Despite so, the Opposite Party did not turn
up before this Commission and consequent to which this Commission was
compelled to hear the Argument from the Complainants side in absence of the
Opposite Party.

Cont......P/5

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C.C- 18 of 2021

During hearing of the Argument, Learned Advocate for the Complainants
submitted fairly before this Commission that during the continuance of the
case, the Opposite Party has handed over possession of the flat in question to
the Complainants and they are now possessing and enjoying the flat.
From the Complaint petition, Written Version, Evidence of the Complainants
and other materials available on record, the following points have been
framed:-
1. Are the Complainants consumers under the Opposite Party?
2. Is the Opposite Party deficient in providing service towards the
Complainants?
3. Are the Complainants entitled to get any relief/s as prayed for?

-:Decision with Reasons:-

All the points have been taken together for the sake of brevity, avoidance
of repetition of facts and convenience for discussion.
It is evident from the evidence of the Complainant No.1 that he and his
wife have jointly purchased one residential flat measuring about 1500 sq ft at a
consideration of about Rs. 48,00,000/- (Rupees Forty Eight Lakhs only) from
the Opposite Party/ Developer which was being built over the land of the Land
Owner as mentioned in detail hereinabove.
From the copy of Deed of Conveyance, it is proved that the Complainants
have purchased the flat in question from the Opposite Party and they have
paid the entire consideration amount to the Opposite Party. Learned Advocate
for the Complainants fairly submitted that during the continuance of the
proceeding of the case, the Complainants have got possession of the flat.
Cont......P/6

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C.C- 18 of 2021

Therefore, in our view the Complainants are consumer under the
Opposite Party as per the definition of “consumer” as defined u/s 2 (7) of the
Consumer Protection Act, 2019.
Now, in order to ascertain whether the Opposite Party was deficient or not
we have to delve into the evidence of the Complainant No. 1 once again.
From the evidence and other materials on record, it is seen that the
Complainants had booked the flat in question from the Opposite Party, being
the Developer, at a consideration of Rs. 48,00,000/- (Rupees Forty Eight Lakhs
only) and subsequent to the booking, the Opposite Party/ Developer has
executed and registered the Deed of Conveyance in respect of the said flat in
favour of the Complainants in the year of 2019.
It is further seen that, one Registered Development Agreement was made
being No. 040100518 for the year 2018 by and between the Land Owner and
the Developer for erection of a multi-storeyed Building over the Land of the
Land Owner and thereafter, after getting the Power of Attorney, the
O.P/Developer and Complainants/Purchasers have entered into an Agreement
for Sale of a residential flat measuring about 1500 sq ft at a consideration of
Rs. 48,00,000/- (Rupees Forty Eight Lakhs only) but the Complainants
nowhere in the complaint petition has referred on which date the said
Agreement for sale was made. No copy of Agreement for sale has been filed by
the Complainants and not a single scrap of paper has been adduced by them in
order to show on which date such Agreement for Sale was made and what
were the terms and conditions of the said agreement for sale and on which
date the delivery of the possession of the flat was supposed to be delivered.
Due to absence of such document we are unable to see whether any delay was
caused by the Opposite Party for delivery of the possession of the flat in
Cont......P/7

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C.C- 18 of 2021

question. We are also not able to find out any Terms and Conditions made
between the Complainants and Opposite Party/ Developer on which date the
flat in question was supposed to be delivered. The copy of payment schedule is
also not available with the case record.
However, it is seen from the Deed of Conveyance submitted by the
Complainants that the flat in question has already been registered in the name
of the Complainants and the Learned Advocate for the Complainants during
the Argument submitted that the Opposite Party has already handed over the
peaceful vacant possession of the flat in question to the Complainants and now
the Complainants are residing therein and enjoying the flat.
The main point of controversy i.e the non-handing over the flat to the
Complainants by the Opposite Party has been resolved, but for the purpose of
causing delay of delivery of the flat, as alleged, the Complainants miserably
failed to file any cogent documents in order to prove their case.
In absence of any cogent, relevant and trustworthy documents, we are in
dark and unable to ascertain whether actually there was any delay caused or
not.
It is well settled that the burden of proving the case /onus is upon the
Complainant only. But, here the Complainants have failed to discharge their
onus in proving the case.

Therefore, we are of the view that the Complainants have failed to prove
their case. We find no deficiency in service or negligence on the part of the
Opposite Party due to lack of any cogent evidence.

Cont......P/8

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C.C- 18 of 2021

Therefore, the case of the Complainants is liable to be dismissed.
As the case is liable to be dismissed, the Complainants are not entitled to get
any relief as prayed for.
Hence it is;

O.R.D.E.R.E.D.

That the Consumer Complaint being No. C.C. No. 18/2021 is dismissed on
contest.
No order as to cost.
Let a free Copy of this Final Order be supplied to the Parties concerned as per
the Consumer Protection Rules and Regulations, 2020.