Presented by: -

                   Shri Debasish Bandyopadhyay, President.

Complaint Case No. 330/2022

This case has been instituted by the complainants for passing an order directing the OP Nos. 1 to 3 to deliver possession of the flat and shop room which has been described  in schedule B & schedule C to the complainants immediately and to execute and register Deed of Sale in respect of said schedule B and schedule C property after receiving the balance consideration amount from the complainants and to pay compensation and litigation cost.

Fact of this case

Case of the complainant

This case of the complainant which is deciphered from the petition of complaint in bird’s eye view is that the OP No. 1 is the owner  of the A schedule property  which is situated at Holding No. 96 Matrumal Lohia Lane, P.O. Salkia, P.S. Malipanchghora, Dist. Howrah which is situated in Ward No. 4 of Howrah Municipal Corporation and OP No. 1 entered into an agreement for development of the said property on 17.01.2019 as per terms and conditions  described in the said agreement which has been registered and one General Power of Attorney was also  executed on the same date and the said Power of Attorney is also registered.  It is stated that on the basis of the said Agreement for Development coupled with General Power of Attorney the OP No. 2 was empowered  to raise multi-storied building  over the said property and Op No. 2 entered into an Agreement for Sale of a flat measuring about 300 sq. ft. at the 2^nd floor.  One shop room of 100 sq. ft. at the ground floor alongwith undivided proportionate impartible  share of the land described in the A schedule at a total consideration price of  Rs. 5,00,000/- out of which the developer  received Rs. 1,01,100/- from the complainant  and it was agreed that within a period of 12 months  from the date of said Agreement for Sale.  The OP No. 2 (Developer) will deliver the said flat and room described in the schedule B and schedule C to the complainant.  It is submitted by the complainants  that this said flat and the room  ( B & C schedule property) has been agreed to be purchased before commencement  of the construction  and also to commence  a business by self-employment and since the said flat and room  have not been delivered  the complainants  have been heavily suffering financial loss, mental pain and agony.  It is alleged that that the complainants are still tenant in respect of the said premises which has been described  in the A schedule  property.  It is pointed out that the complainants repeatedly asked  the owner and developer  to deliver possession of the said B schedule  and C schedule  property and to execute  and register Sale Deed in respect of the said property but the OPs  did not pay any heed to the appeal of the complainants.  It is submitted by the complainants  that the complainants  are ready to pay the balance consideration to the OPs and on receipt of the balance consideration from the complainants  the Ops under obligation  to deliver the said flat and shop room but the OPs are unnecessarily  causing delay in delivery of the said flat and shop room to the complainants and as a result of which the complainants have  suffered financial loss, mental pain and agony and also harassment and so the complainants are entitled to get compensation to the tune of Rs. 10,00,000/-.  It is alleged by the complainants that the complainants came to know that the Op Nos. 1 to 3 are trying  to transfer, alienate and encumber the said flat and shop room  (B & C schedule property) to some 3^rd Party stranger  and the OPs are avoiding  to transfer the said flat and said room to the complainants.  It is also pointed out that the complainants thereafter  issued legal notice  which was correctly addressed and the Ops even after receiving  the notice  had not taken any steps in the matter of delivery of possession  of B & C schedule  property to the complainants  and to execute  and register Sale Deed.  For all these reasons  the complainants  have instituted this case against the OPs as per prayer of the complaint petition.

Defence Case

The OPs in spite of receiving the notice have not appeared  in this case  and also have not filed any written version for which this case is heard ex-parte against the OPs.

Points of consideration

(i)      Is this case maintainable in its present form and in the eye of law?

(ii)     Are the complainants are consumer under the OPs ?

(iii)    Whether this District Commission has any pecuniary jurisdiction and

            territorial jurisdiction to try this case?

(iv)    Whether the complainants have any cause of action for filing  this case?

(v)     Whether the complainant are entitled to get the decree / award as per prayer of the complaint petition or not?

(vi)    To what other relief / reliefs are the complainants entitled to get in this case?

Evidence on record

In order to prove the case the complainants  have filed evidence on affidavit  but against the said evidence on affidavit Ops have not filed any interrogatories  as they are not contesting of this case.

Argument  highlighted  by the complainant side

In course of argument the complainant’s side has filed BNA and also has highlighted their verbal submission.  In course of argument the complainants have given emphasis on the evidence on record and also on the documents filed by the complainants.

Decision with reasons

The points of consideration which have been adopted in this case for the interest of proper and complete adjudication  of this case are clubbed together  and taken up for discussion jointly as because the issues involved in the above noted points of consideration are interlinked and / or interconnected with one another.

For the purpose of deciding the fate of the above noted points of consideration and also for the interest of arriving at just and proper decision in this case there is urgent necessity of making scrutiny  of the material of this case record as well as there is also urgent need of scanning the evidence on record.

In this connection this District Commission after going through the material of this case record finds that this complaint case has been filed according to the provision of Section 35 of the Consumer Protection Act, 2019 and this complaint case has been filed by more than one complainant.  In other words it can be said that this complaint case has been filed by two complainants jointly against the OPs.  But fact remains that in the matter of filing joint complaint petition by more than one complainant under the Consumer Protection Act, 2019, there is urgent necessity of obtaining  permission of this District Commission u/s 35 (1) (C) of the Consumer Protection Act, 2019.  In this instant case no such permission has been sought for by the complainants at the time of institution of this case.  This matter is clearly reflecting  that the complaint case which has been filed by the complainant is a defective abanitio  and this defect which is reflecting  on the Body of the case record has not been cured by the complainant at any point of time.  This matter is clearly depicting that the complaint case is not maintainable  in its present form and in the eye of law.

Moreover, the complainant in this case has pointed out  that he was  a tenant in respect of the A schedule property but in order to establish the tenancy in respect of the A schedule  property the complainant has not filed any document.  This matter is also reflecting that the complaint case is bereft of actual / cogent document.

It is also very important to note that the complainants in their complaint petition have time and again  described the fact that the OPs have already completed the construction  of the multi-storied building to in order to substantiate  this matter.  The complainant has not prayed before this District Commission for conducting Local Inspection Commission to prove the above noted issue.  Thus, it is crystal clear that the complainant has failed to establish his case beyond  any reasonable doubt.  In this instant case the complainants  have time and again  pointed out that  they are ready and willing to  execute and register the Deed of Conveyance  in respect of B & C schedule property.  But fact remains that the complainant  to substantiate  of his readiness and willingness  have not filed any cogent document.

A cumulative consideration of the above noted discussion goes to show that this complaint case is not maintainable in its present form and in the eye of law and the complainant has also filed to prove  his case by producing  cogent evidence.  So, this District Commission has no other alternative  but to dismiss this case.

In the result, it is accordingly,

ORDERED

That this Complaint Case being No. 330/2022 be and the same is dismissed ex-parte.  No order is passed as to cost.

Parties of this case are entitled to get a free copy of this judgment as early as possible.

Let this judgment / final order be uploaded in the official website of this District Commission immediately.

Dictated & corrected by me

  President

Debasish Bandyopadhyay

DCDRC, Howrah