Presented by: -

                   Shri Debasish Bandyopadhyay, President.

Complaint Case No. 196/2022

This  case has been instituted  by the complainants against the  OP for passing direction upon the OP to hand over possession in respect of the flat which has been mentioned in the schedule of the complaint petition in favour of the complainants  and also for awarding compensation and litigation cost.

Fact of this case

Case of the complainant

This case of the complainant which is unearthed from the petition of complaint in bird’s eye view is that the complainants had entered into an agreement for development of  the Bastu Land measuring  about 3 Cottahs 0 Chattaks 03 sq. ft. alongwith 700 sq. ft. R.T. Shed structure standing thereon at Premises No. 36/5 “B” Road, Bamangachi, P.O. Salkia,  P.S. Lilluah, Dist. Howrah alongwith all sorts of easement rights,  common passage rights and appurtenances  thereto  with the OP on 16^th August, 2016  and the said Agreement for Development was  registered before the office of  ADSR, Howrah and the complainant also had given a Development Power of Attorney to the OP which was also registered before the said ADSR Office, Howrah.  It is the case of the complainant that it was agreed any Development Agreement that the OP would hand over  the complainant’s allocation  in the said land within 36 months from the date of starting construction work but neither the OP delivered the agreed allocation to the complainant nor has completed the development work in the schedule mentioned property.  It is submitted that the complainants approached to the OP on several occasions  at the residence of the OP for completing the development work but the OP adopted the financial difficulties due to the then ongoing pandemic situation and also stated that he would not be able to complete the construction or deliver possession to the complainants.  It is alleged that after lock down ended on 28.02.2022, on being asked by the complainants  about a tentative date of completion  of development work, the OP verbally  assured the complainants that within 30.06.2022 he would hand over the possession of the complainant’s allocated share.  It is pointed out by the complainant side  that OP not only  failed  and neglected to complete construction and hand over possession as agreed upon in the Development Agreement dtd. 16.08.2016, but also raised unnecessary disputes with the complainants and as such the complainants had sent the OP a letter through their Ld. Lawyer dtd. 07.06.2022, requesting the OP to complete the construction / development work and to hand over the possession.  It is further asserted that in spite of receiving the Advocate’s letter the OP failed to complete the development work and also refused to pay any heed in the matter of handing over possession to the complainants.  It is alleged that the complainants finding no other alternative  have instituted  this case as per prayer of the complaint petition.

Defence Case        -  The OP appeared in this case after receiving the notice  of this case but in spite of getting sufficient opportunity  the OP has not filed any W/V and for that reason the case is running ex-parte against OP as per Order No. 5 dtd. 12.10.2022 which is passed by this District Commission.

Points of consideration

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

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

(ii)       Has this District Commission jurisdiction to try this case?

(iii)      Are the complainants consumer under the OP or not?

(iv)      Whether the complainants have cause of action for institution of this complaint case against the OP or not?

(v)       Whether the complainants entitled to get the  award directing the OP to hand over possession of the schedule mentioned property or not?

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

Evidence on record

In this case the complainants in order to prove their case has filed evidence on affidavit  and against the said evidence on affidavit the OP has not filed any interrogatory as the OP is not contesting  in this case.

Argument  highlighted  by  the parties

In course of argument the complainant side has filed Brief Notes on Argument.  In addition to filing the Brief Notes on Argument the complainant side  has also highlighted verbal argument and relied on the evidence  and documents lying in this case record.

Decision with reasons

The questions and / or issues involved in the points of consideration adopted  in this case are interlinked and / or interconnected with one another  and for that reason and also for the interest  of convenience  of discussion this District Commission has taken up all the issues jointly.

For the purpose of arriving at just and proper decision in connection with these points of consideration adopted in this case, there is urgent necessity of making scrutiny  of the material of this case record and also for scanning the oral and documentary evidence lying in this case record.

            After going through the material of this case record it is revealed that this case has been filed by the complainant’s u/s 35 of the Consumer Protection Act, 2019.  It is also reflected that the complainants of this case have jointly instituted this case against the OP but it is very surprisingly to note that the complainants have not sought for  any permission from this District Commission u/s 35 (1)  (C ) of the Consumer Protection Act, 2019 for joint filing of this case,  although  such permission is required to be taken before institution  of a case jointly.

Thus, it is clear that this case is found defective since the filing of this case.  Thus, it is crystal clear that this case is not maintainable in the eye of law and its present form.

On close examination of the evidence on record, it is reflected that the complainants have filed their evidence on affidavit through Biplab Chakraborty (Complainant No. 2).  But this part of evidence has not been corroborated any other witness of the complainant side.  So, this case is lacking for want of supportive / corroborative evidence.

Moreover, in this case the complainants have adopted the plea that the OP has not completed the construction by complying the terms & conditions  of the Development Agreement but in order to prove this case the complainants have neither filed any prayer  for Local Inspection Commission  nor filed any prayer for conducting Survey Passed Commission.   In the absence of any report by the Ld. Local Inspection Commissioner or Survey Passed Pleader Commissioner the above noted alibi of the complainant’s remains unproved.   Thus, it is crystal clear that the basis of the complainant’s case has not been proved by the complainant by way of placing satisfactory evidence.

A cumulative consideration of the above noted discussion goes to show that the complainants have failed to prove their case in respect of the points of consideration which have been framed in this case and for that reason 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. 196/2022 be and the same is dismissed  on contest.  No order is passed as to cost

The 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.

Dictated & corrected by me

  President