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

Case No. CC/234/2022.

Date of filing: 1/12/2022.                     Date of Final Order: 25/04/2024.

Sri Debanjan Ghosh,

s/o Late Sri Dinesh Chandra Ghosh,

previously resided at-

 Sukumar Roy Road, Subhas Pally,

P.O. & P.S. Siliguri, Dist. Darjeeling, PIN. 734001.

Presently residing at-

47, Baghajatin Road, P.O. Nabagram,

P.S. Uttarpara, Dist. Hooghly, PIN. 712246.                                                ……complainant

  -vs 

1. R N Construction

A partnership firm represented by its partner and proprietor

Nabendu Dey,

Office at Ashrampara, Siliguri, P.O. & P.S. Siliguri,

Dist. Darjeeling, PIN. 734001.

Present address at Sun View Apartment (Top Floor),

Opposite Siliguri High School,

College Para, Siliguri, PIN. 734001, State- West Bengal.

2. Nabendu Dey,

Partner of the R N Construction,

Of Sun View Apartment (Top Floor),

Opposite Siliguri High School,

College Para, Siliguri, PIN. 734001, State- West Bengal.

3. Sri Sanat Kumar Sarkar,

s/o Sarbananda Sarkar,

r/o Milanpally, P.O. & P.S. Siliguri,

Dist. Darjeeling, PIN. 734001, West Bengal.

Present address- Haridham Building

Opposite (Fuleswar Bazar),

P.O. & P.S. Siliguri, Dist. Darjeeling,

PIN. 734004, West Bengal.

4. Sri Utpal Sarkar,

s/o Sarbananda Sarkar,

r/o Milanpally, P.O. & P.S. Siliguri,

Dist. Darjeeling, PIN. 734001, West Bengal.

Present address-

Shiva Apartment, behind Milanpally Electric office,

S.F. Road, P.O. & P.S. Siliguri,

Dist. Darjeeling, PIN. 734005, West Bengal.……opposite parties

Before:           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 complainant stating that the complainant is residing at the above mentioned address which is under the jurisdiction of this ld. Commission and the op no. 1 is a partnership firm represented through its partner who provides Real Estate and Housing services by promoting, developing and selling flats on consideration from intending purchasers and the op no. 2 is a partner as well as promoter, builder and developer of the said partnership firm ie R.N. Construction and the op nos. 3 and 4 are the land-owners of the property, and the op nos. 1 and 2 entered into development agreement notarized on 17.10.2012 with the op nos. 3 and 4 for constructing multistoried building on their property and the complainant with a view to purchase of a flat mentioned in the schedule ‘B’ below measuring about more or less 800 sq.ft. (including 20% Super build up area) on the ground floor in the North-east side entered into an agreement with the ops for the purchase of the said mentioned in schedule-B below at the consideration of Rs. 17,00,000/- only, which was registered at the office of the ADSR, Siliguri on 24.11.2014 vide deed no. 2302/2014 and the out of that said total consideration amount of Rs. 17,00,000/- only complainant gave Rs. 15,08,901/- only as an advance amount in favour of the op nos. 1 and 2 and as per said agreement it was also settle that the registration of the sale deed in respect of the said flat mentioned in B schedule below shall also be completed within the three month from the date of registration of the said agreement for sale but the op nos. 1 and 2 informed the complainant through letter dt. 13.3.2016 that he shall complete the project and arrange for necessary registration within May 2016 and in this respect op nos. 1 and 2 entered into an agreement with the complainant and thus the complainant paid Rs. 15,08,901/- only on different dates for purchasing the said flat mentioned in B schedule below to the op nos. 1 and 2 out of the total consideration money of Rs. 17,00,000/- only  and the complainant is ready to pay the balance consideration money of Rs. 1,91,099/- only for his flat as per the said agreement and the complainant requested the ops a number of times for accepting the balance consideration money and for handing over possession of the flat and execution and registration of Deed of Sale in his favour but the ops paid no heed to such requests of the complainant for reasons best known to them and thereafter finding no other alternative complainant send a notice through his ld. Advocate to the ops vide notice dt. 20.7.2020 with the same request but the ops this time too sat tight over the matter and did nothing for handing over possession of the flat to the complainant nor he took up any initiative for execution and registration of Deed of Sale for the aforesaid properties and after repeatedly request by the complainant the op no. 2 provided an acknowledgement in respect of receiving money from the complainant and assured his to wait some time and as per assurance by the op no. 2 complainant started waiting eagerly for the response from the ops but no fruitful result done and the ops did not came forward with any communication keeping the complainant in darkness and thereafter the complainant finding no other alternative complains the matter to the Principal Secretary, Consumer Affairs Department, Kolkata on 22.6.2022 and then the said department send a letter to the complainant advised to the complainant through their letter dt. 16.9.2022 to lodge statutory complaint case on the issue either at the Hooghly District Disputes Redressal Commission and the complainant has been suffering from huge financial loss due to such aforesaid activities of the ops and the aforesaid of the ops constitute sheer deficiency in service as well as unfair trade practice and for that the complainant had to suffer gross mental agony, anxiety and harassment due to no fault on his part besides the huge financial loss he had/ has to incur therefore and the complainant is entitled to reliefs in the form of direction upon the ops jointly or severally either for give delivery of possession fully completed flat and registration of the said flat mentioned in the schedule ‘B’ below or in default return back the advance amount along with interest which is received from the complaint within alongwith adequate compensation of Rs. 5,00,000/- toward mental agony, anxiety and harassment and costs of the proceeding of Rs. 20,000/- along with other relief(s).

Schedule ‘B’ ( description of the flat agreed to be sold)

All the piece or parcel of one residential flats measuring more or  less 800 sq.ft (flat area includes 20% super build up area with proportionate share of stair case) in the North- East side of the ground floor of the proposed two storied pucca building on the land measuring 4 kathas 8.633 Chhataks recorded in Khaitan no. 1634, plot no. 3412, situated within Mouza Siliguri, J.L. No. 110988), Pargana Baikumthapur, Police Station- Siliguri, within Siliguri Municipal Corporation, Ward no. XXV, District- Darjeeling, in the state of West Bengal.

 Defense Case:-  The opposite party Nos. 1 and 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that one agreement for sale was duly executed on 24^th November, 2014 among the parties whereby Sri Sanat Kumar Sarkar and Sri Utpal Sarkar, being the owners/ vendors and M/s R N Construction, being the Developer jointly agreed to sell, transfer and convey the rights, title and interest of ownership and the said purchaser agreed to purchase one self-contained residential flat measuring about 800 sq.ft. including 20% of the super built up area on the North-East side of the ground floor of the aid building together with the right to use the common areas of the said building, out of Developer’s allocation in the said building, on payment of sale consideration of Rs. 17,00,000/- payable by the purchaser in favour of the developer. The said agreement for sale was duly registered in the office of Additional District Sub Registrar, Siliguri and has been  recorded in book no. I, CD Volume no. 8, pages from 2071 to 2090 being no. 02302 for the year 2014.

Although the purchaser has failed and neglected to make payment of money as per the schedule of installments written in the said registered agreement for sale and has only made payment of Rs. 14,50,000/- in favour of the Developer so far, the Developer by taking a considerate and liberal view towards the purchaser, has already handed over the peaceful and vacant physical possession of the said property in favour of the purchaser sometimes in the year 2016 and since then the purchaser has been enjoying the peaceful and vacant possession of the said property. It is pertinent to mention herein that the complainant has already permitted one family to stay in the said residential accommodation on making payment of rent in favour of the complainant.

After completion of consideration of the flat, the said property was measured as 850 sq.ft. super built up are instead of the proposed area of the said flat  and accordingly the purchaser has become liable to make payment of Rs. 18,06,250/- being calculated @ Rs. 2125/- per sq.ft.

The partnership firm M/s R N Construction was originally consisted of three partners namely, Smt. Premlata Mittal, Sri Pradip Kumar Agarwal and sri Nabendu Dey out of whom Sri Pradip Kumar Agarwal has retired from partnership on 1^st April, 2014 while Smt. Premlata Mittal has expired in the year 2020. After the retirement and death of the said partners the said partnership firm has not been reconstructed and as a result, there is no existence of partnership firm as on date.

The developer is all along ready and willing to discharge its obligations by executing and registering a sale deed in respect of the said property upon getting payment of the remaining part of sale consideration, amounting to Rs. 3,56,250/- together with interest thereon but the said deed could not have been registered so far due to non willingness on the part of the purchaser in making payment of the said remaining amount of sale consideration and also due to the noncooperation on the part of the land owners who have been retaining the absolute authority to execute and register any document in respect of the said property as the land owners have not executed and registered any power of attorney in favour of the developer authorizing the developer to execute and register the sale deed on behalf of the said land owners. As a result of such non cooperative attitude on the part of the purchaser and of the land owners, the execution and registration of the deed of sale in favour of the complainant in respect of the said flat is getting delayed for no fault on the part of the answering opposite parties herein and as such there is no deficiency in rendering services on the part of the said answering opposite parties herein. In the aforesaid facts and circumstances and in the interests of justice, the said complaint case being devoid of any merit whatsoever, is required to be dismissed in limine with an 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:-

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.

Op nos. 1 and 2 only file written version and after that they have not take any steps. It appears from the case record that op nos. 3 and 4 after receiving the summons have not appeared before this District Commission. So, the case be proceeded ex parte against them.

Argument highlighted by the ld. Lawyer of the complainant

Complainant filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of complainant are to be taken into consideration for passing final order.

           Argument as advanced by the ld. Advocate of the complainant heard in full. In course of argument ld. Lawyer of complainant has given emphasis on evidence and document produced by him.

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 nos. 1 and 2 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 nos. 1 and 2 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 47, Baghajatin Roda, P.O. Nabagram, P.S. Uttarpara, Dist. 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 complainant 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 consumer in the eye of law.

           All these factors are clearly depicting that this case is maintainable and complainant is 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 party nos. 1 and 2 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.

           It appears that in his evidence complainant has fully corroborated his case of the petition of complaint and the documents filed by him also lend support to the case of the complainant. On the other hand op nos. 1 and 2 have not filed any evidence on affidavit or documents for supporting their case.

           Moreover, not contesting by the ops in the present case, proved the case of the complainant otherwise as all oral and documentary evidence went unchallenged and there is nothing to disbelieve the case of the complainant which proved ex parte against the ops.

           From the evidence on affidavit filed by the complainant it appears that the complainant paid total amount of Rs. 15,08,901/- (rupees fifteen lakh eight thousand nine hundred one only) to the ops/ developer for purchasing a residential flat measuring more or less 800 sq.ft. including 20% super built up are in the north side of the ground floor of the 2 storied pacca building situated within Mouza Siliguri, J.L. no. 110(88), Pargana Baikunthapur, P.S. Siliguri Dist Darjeeling in the State of West Bengal which is described in the schedule B of the complaint petition.  

Now the actual fact remains that no deed of conveyance was executed and registered in respect of the B schedule mentioned flat in favour for the complainant  by the op nos. 1 and 2 which was/ is very much essential for this complaint case.

So, we are of opinion that though it is crystal clear that the op nos. 1 and 2 are still bound to do  the execute and register the said flat which was never done by them, without showing cogent reason for which we award the adequate compensation and litigation cost in favour of the complainant against the op nos. 1 and 2.

Under the above discussion goes to show that the complainant has proved his case in respect of his claim and so the point of consideration nos. 4 and 5 are decided in favour of the complainant.

In the result it is accordingly

ordered

that the complaint case being no. 234 of 2022 be and the same is allowed on ex parte against op nos. 1 and 2 with cost.

Opposite party nos. 1 and 2 are directed jointly or severally to execute and register a deed of sale in favour of the complainant in respect of B schedule mentioned flat and to deliver possession of fully completed of the said flat after accepting balance consideration money of Rs. 1,91,099/- from the complainant within 45 days from the date of this order.

Or in default to return back the advance amount of Rs. 15,08,901/- which is received by the op nos. 1 and 2 from the complainant along with interest @ 9% in favour of the complainant with effect from 24.11.2014 i.e. date of agreement for sale. Op nos. 1 and 2 are directed to pay the said amount to the compliance within 45 days from the date of this order.

The op nos. 1 and 2 are further directed jointly or severally to pay compensation of Rs. 50,000/- towards mental harassment in favour of the complainant and to pay Rs. 10,000/- before the Legal Aid Account within 45 days from the date of this order.

Complainant is 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.