This case has been filed by the complainant against the OPs with the prayer for passing direction upon the OPs to hand over  the Flat No. F-1 situated at 13/2/1 Acharya Para Lane, P.S. Shibpur, Dist. Howrah and also for refund  of Rs. 5,05,000/- for making construction of 141 sq. ft. less than the  actual measurement  of 512 sq. ft. and also for making payment of compensation  with litigation cost.

Complaint Case –   The case of the complainant  which is deciphered  from the petition of complaint in bird’s eye view  is that the complainant agreed to purchase  a self-contained  residential  flat measuring  about 512 sq. ft. including  super built up area at the Ground  Floor  being Flat No. F-1,  situated at 13/2/1 Acharya Para Lane, P.S. Shibpur, Dist. Howrah  which has been described  in the Schedule A & B of the complaint petition which has been developed  by the OPs by virtue of Development Agreement  dt. 04.06.2012 and the rate of the said flat was Rs. 3,000/- per sq. ft.  It is submitted that the complainant paid total amount of Rs. 16,80,000/- to the OPs as full consideration amount  including other expenses for purchasing  the said flat.  It is alleged that the OPs received the said amount and thereafter completed the registration of the said flat in favour of the complainant  on 27.04.2016 but possession of the said flat  was not delivered  and had the registration of the said deed of conveyance  one of the partners namely  Biswarup Shaw which the OP No. 6 was absent and had not signed in the said deed of registration.  It is further alleged that the complainant  thereafter noticed that  the said flat mentioned in the deed of conveyance was 371 sq. ft instead of 512 sq. ft. which is 141 sq. ft. less than the actual measuring  area of 512 sq. ft. and thereafter  the complainant requested the OPs to return back the excess amount of Rs. 5,05,000/- and also requested  to complete the registration process  of the said flat in the presence of OP No. 6 Biswarup Shaw.  According to the case of the complainant the OP Nos. 2 to 6 assured the  complainant that  they would  refund  the said excess amount to the complainant  and to  complete the registration process of the said flat in the presence of the OP No. 6  Biswarup Shaw.  It is also stated by the complainant that thereafter the complainant day after day went to the office of the OP for getting refund  of Rs. 5,05,000/- and also for completion of the registration process but the OPs on various pretext deferred  the said matter  and finally the complainant  finding no other alternative filed G.D.E. being No. 443 at Shibpur P.S.  and also filed complaint before the Consumer Affairs  & Fair Business Practices at Howrah but the complainant failed to get any effective result  and as a result  of which had sent legal notice  to the OPs and again asked them to refund back the said excess amount of Rs. 5,05,000/-  and to complete the registration process.  It  is also pointed out that the complainant is a consumer under the  OPs  and so this case is maintainable under the Consumer Protection Act, 1986 and there is a cause of action for the complainant to institute  this case  against the  OPs.  So, the complainant has filed this instant case as per prayer of the complaint petition.

Defense Case   -  The OP Nos. 1, 2, 4 & 5  after receiving notice from this District Commission attended this District Commission but had not submitted any written version in spite of  getting statutory  period of time  and finally this District Commission has been pleased to pass the order of ex-parte hearing against the OP Nos. 1, 2, 4 & 5  on 14.03.2017.

The OP No. 6 also appeared and adopted the plea  that initially the OP Nos. 2, 4 & 6 started to make construction of G+3 storied building at the suit property and subsequently  the OP Nos. 3 & 5 joined  in the said partnership, but the OP Nos. 2, 3 & 5  without taking any consent of other partners  had withdrawn  Rs. 12,00,000/- from the Bank Account  of the OPs being Bank A/C No. 02082000015573, HDFC Bank, Howrah Branch and as a result  of which the OP No. 6 repeatedly requested the complainant  not to make contact with the OP Nos. 2, 3 & 5  in the matter of execution and registration of the deed of conveyance  in respect of the said flat.  According to the case of the OP No. 6 a suit has been filed  against OP Nos. 2 to 5 being  Title Suit  No. 837 of 2016 before the Ld. Civil Judge  (Junior Division) 2^nd Court, Howrah for necessary  relief but no injunction order was granted  by the said Court  and for that reason Misc. Appeal No. 140 of 2016 was filed before Ld. District Judge  at Howrah wherefrom  an order of injunction  was passed restraining to OP Nos. 2 to 5 to withdraw any amount from the above noted  Bank A/C.  It is alleged that the complainant in active collusion with OP Nos. 2, 3 & 5 executed and registered  deed of conveyance  and subsequently  pressurizing  the OP NO. 6  to complete the said registration process.  For all these reasons  the OP No. 6 has prayed  before this District Commission for dismissing this case with heavy cost.

Points of consideration

On the basis of the pleadings  of the parties this District Commission for the interest of proper and complete adjudication of this case and also for arriving at just and proper decision in this case is going to frame the following points of consideration :-

1.  Is this case maintainable  in its present form and in the eye of law?
2. Has this District Commission territorial and pecuniary jurisdiction to try this case or not ?
3. Is the complainant a consumer under the OPs ?
4. Whether the complainant has cause of action in the matter of filing this case or not?
5. Whether the complainant is entitled to get the order directing the OPs to complete the process of registration and to deliver possession of Flat No.  F-1 to the complainant and whether the complainant is entitled to get compensation and litigation cost from the OPs or not?
6. To what other relief or reliefs is the complainant entitled to get from this case?

Evidence on record

The complainant in order to prove the case has filed evidence on affidavit but as this case is running ex-parte against the OPs, they have not filed any interrogatories against the evidence on affidavit filed by the complainant.

On the other hand the OPs have not filed any evidence on affidavit to disprove the case of the complainant.

Argument highlighted by Ld. Advocate of both sides

At this stage  of argument Ld. Lawyers  of the complainant side  and OPs have filed Brief Notes on Argument and in addition to the Brief Notes of Argument  filed by the complainant  and OPs, Ld. Lawyers of both sides also have highlighted their verbal  argument before this District Commission.

Decision with reason

The questions involved  in the first 4(four) points of consideration which have been framed  on the issues of maintainability, jurisdiction, cause of action and complainant’s right of customer  are interlinked and / or interconnected with one another .  For that reason and also for the interest of convenience of discussion all these 4(four) points of consideration are clubbed together and taken up for discussion jointly.

For the purpose  of arriving at just and proper decision in respect of the above noted 4 (four) points of consideration there is urgent necessity of making scrutiny  of the evidence on record as well as scanning of the material lying in this case record .  This District Commission after going through the evidence on record finds that the evidence given by complainant side remains unchallenged and / or uncontroverted.  It is revealed that the OPs have not challenged the issue of maintainability, jurisdiction and cause of action  in their pleadings of the parties as well as  in the evidence on record.  On the basis of the background this District Commission  after going  through the material of this case record finds that the complainant  has paid Rs. 16,80,000/- to the OPs  as the total consideration money including  additional expenses for purchasing  the said flat  and the OPs in their Brief Notes on Argument also have admitted this fact of receiving the amount of Rs. 16,80,000/- from the complainant.  This matter is clearly depicting that the complainant is a consumer under the OPs and the complainant has cause of action for filing this case and this case is also maintainable in the eye of law.  It is revealed  that the suit property is situated at 13/2/1 Acharya Para Lane, P.S. Shibpur, Dist. Howrah which is lying with the territory  of this District Commission and this matter is clearly  indicating that  this District Commission has it’s territorial jurisdiction to try this case .  Moreover,  the claim of the complainant is far below of Rs. 20,00,000/- and this matter is clearly reflecting  that this District Commission has also  pecuniary  jurisdiction to try this case.

A cumulative consideration of the above noted discussion goes to show  that the complaint case  is maintainable  in its present form  and in the eye of law, this District Commission has its jurisdiction to try this case and the complainant is a consumer under the OPs and the complainant  has cause of action for filing this case.  Thus, all the above noted 4(four) points of consideration are decided in favour of the complainant side.

 The point of consideration No. 5 is related with the question whether the complainant is entitled to get the award directing the OPs for completing the execution and registration process and to deliver possession of the Flat No. F-1 situated at 13/2/1 Acharya Para Lane, P.S. Shibpur, Dist. Howrah and for awarding compensation and litigation cost.  The point of consideration No. 6 is related  with the issue whether the complainant is entitled to get any other relief in this case from the OPs or not ?

For deciding  the fate of the above noted two points of consideration, this District Commission after going through the evidence on record finds that the evidence on affidavit filed by the complainant  has not been challenged by the OPs by way of filing interrogatories  and / or questionnaires and this matter is clearly depicting  that the evidence given by complainant side remains unchallenged and / or uncontroverted.  It is also reflected from the material of this case record that this District Commission has no reason to disbelieve the unchallenged and uncontroverted testimony of the complainant side.  On close examination of the Brief Notes on Argument which have been filed by OP Nos. 1, 2, 4 , 5 & 6 this District Commission finds  that in the Brief Notes on Argument submitted by the above noted OPs have candidly admitted the case of the complainant .  In this regard it is very important to note that “facts admitted need not be proved” this legal principle has been embodied in Section 58 of the Indian Evidence Act.  Thus, this District Commission is of the view that the complainant is entitled to get the degree in this case on admission as per provisions of Order 12 Rule 6 of the Civil Procedure Code.  The evidence on record is going to depict that the OPs also have admitted the case of the complainant that the process of execution and registration of Flat No. F-1 situated at 13/2/1, Acharya Para Lane, P.S. Shibpur, Dist. Howrah has not yet been completed and the OPs also have not delivered possession of the said flat to the complainant.

Now this question is what would be the conclusions if the OPs failed to hand over the possession of the suit flat and also failed to execute and register  the sale deed in spite of receiving  consideration money?

In this regard the decision of the Hon’ble Apex Court  in the case of Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor  which is reported  in AIR 2022 SC 1824 is very important .  Hon’ble Apex Court  has been pleased to observe that the District Commission has the power under the Consumer Protection Act  to direct the refund  of amount deposited by the consumer alongwith interest @ 9% per annum.  Thus, it is crystal clear  that the complainant is entitled to get refund  of Rs. 16,80,000/- alongwith interest @ 9% per annum  from the date of filing  of this case.

In the result , it is accordingly,

ORDERED

That this Complaint Case being No. 377/2016 be and the same is allowed ex-parte  against the OPs but in part.

It is held that the complainant is entitled to get refund  of Rs. 16,80,000/-  alongwith interest  @ 9% per annum from the OPs and the OPs are directed to pay the said amount  within 45 days from the date of this judgment otherwise  the complainant  is given liberty to execute  this judgment  as per law.

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

Let this final order and / or judgment be uploaded in the official website  of this District Commission as early as possible.

Dictated & corrected by me

President