This case record is taken up for consideration for passing order in respect of the application filed by the opposite party stating inter alia that the C.C. case no. 55 of 2020 is not maintainable.
The complainant side contested this matter by filing W/O.
The argument highlighted by ld. Advocates of both sides already have been heard by this District Commission. Considered the points of argument highlighted by ld. Advocates of both sides.
It is the main point of contention and argument of the op/ applicant that this case is not maintainable as total price of the said flat has not been paid, the extra charges in respect of the extra works done in the said flat also have not been paid, the booking has already been cancelled by ops, no agreement has been executed, there is no delay in construction, there is no deficiency of service and unfair trade practice, there is existence of arbitration clause in the agreement and there is no cause of action. For all these reasons the ops of C.C. case no. 55 of 2020 have prayed for dismissing the above noted complaint case.
On the other hand it is the main point of contention and argument of the ops that this M.A. case is not at all maintainable in the eye of law and the complainant already have paid consideration money and so agreement has already been taken effect and ops are bound to execute and register the sale deed. As per argument of the complainant side there is deficiency of service and unfair trade practice on the part of the ops and so there is cause of action for filling this case which is still existing. For all these reasons the complainant side has prayed for dismissing this M.A. case with heavy cost.
After going through the material of the case record it appears that the complainants already have paid consideration money and on close examination of the petition filed by the ops it appears that the plea adopted by the ops is contradictory as because at one hand the ops have stated that no agreement has been executed but on the other hand at page 4 of the said petition ops have stated that there is no delay in construction and/ or handing over the said flat and complainants fully satisfied with the said flat. Moreover for argument shake if it is taken into consideration that booking has been cancelled but the ops are duty bound to pay back the consideration amount along with interest @ 9% per annum to the consumer in the event of failure to deliver possession of the flat and non-execution and non-registration of the flat. Over this issue the case laws which are reported in AIR2022SC1824 and 2022(2) CPR 423 (NC) are important. By following the observation of the Hon’ble Apex Court which is reported in AIR2022SC1824 and Hon’ble National Commission which is reported in 2022(2) CPR 423 (NC), this District Commission are of the view that this District Commission has jurisdiction to try this case and the application which has been filed the ops in this MA case is found not maintainable in the eye of law.
In the result
it is accordingly
ordered
that this M.A. case no. 51 of 2022 be and the same is dismissed on contest.
Op (who is the applicant of this MA case) is directed to file evidence on affidavit in C.C. case no. 55 of 2020 on 11.1.2023.
