Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that in the year of 2011, the op -1&2 came with a proposal to the father of the petitioner.  The petitioner’s father was 85 years of age then  The OPs gave a proposal to the petitioner’s father that, it would be better to sell the petitioner’s own house and with that money they can have two new flats at a construction site of the ops at Kasba.  The petitioner’s father was in dilemma.  The ops advertised their projects and told the petitioner’s father that with just Rs.1500000/- they can provide the petitioner’s family two luxury flats at Kasba.  The ops also advertised their flourishing construction business.  The petitioner’s father was in great thinking as he always tried to leave something for his family and son.  Being totally assured by promises the petitioner’s father sold his residential house and arranged Rs.1500000/- with a hope to have something for his family and also for petitioner’s father sold his residential houseand arranged Rs.1500000/- with a hope to have something for his family and alsofor his last days.  On 23.05.2011, two agreements for sale were executed between the ops and the father of the petitioner.  One agreement forsale is for 1000 sq. ft. of flat at Kasba against consideration price of Rs.1000000/- which was paid by the petitioner’s father vide two cheques bearing number 082801 and 082802 drawn on Axis Bank Singur branch for an amount of Rs.500000/- each.  Another agreement for sale is for 500 sq. ft. of that at Kasba against consideration prices of Rs.500000/- which was paid by the petitioner’s father vide cheque number 082804 drawn on Axis Bank, Singur branch for an amount of Rs.500000/-.  OP-1 &2 got those cheques in favour of op -3 and those cheques got cleared dt.25.5.2011, 25.5.2011 and 02.06.2011 respectively which will reveal from the bank statement.  The totalamount of Rs.1500000/- was the last savings of the petitioner’s family.  And petitioner’s father was at his 90’s and actually he trusted the ops.  The two agreement for sale was also written by the op-2 and these two cheques were taken from petitioner’s father from their rented house by the op-1&2 and through the two agreement forsale it was settled that within April 2013, the two flats would handed over to the petitioner’s father.  The petitioner’s father and the petitioner was totallymoved by the false promises of the ops and were deceived by themasked nature of the ops.  After the receipt of the amount of Rs.15,00,000/-only the ops began to visit the petitioner less frequently.  On the other hand, the petitioner’s familymoved toa rented house instead of their own house and till thisdate the petitioner and his family is in that rented house. After the completion of April 2013 when the father of the petitioner asked to the ops about the two flats ops promised, the ops in reply started their vague and false promises.  First the ops convinced the father of the petitioner that the construction work of their firm got stuck and they need some more time the petitioner’s father urged to the ops that he was paying rent forno use and he only paid the consideration amount for thetwoflats as hewanted those flats for the residential purpose of his family and notforanygain.  The ops madevarious excuses and craves somemore time.  Days past, years past, but no such flats were handed over to the petitioners as per agreement dated 23.5.2011 but new fake promises were coming from the side the side of the ops.  At times the ops stopped to answer the phone calls of the petitioner’s father.  The petitioner’s father was at the age of 90 and he had just broke down from inside as he thought that he just dragged his son andfamily on road.  Such anxiety mental pressure, panic shattered the health and mind of the petitioner’s father.  A person with such a stout personality got ruined.  Being totally hopeless and being tired of the never ending false promises of the ops.  IN the year 2019 the father of the petitioner sent alegal notices to the ops claiming his legitimate twoflats as per agreement dated 23.5.2011.  Notices were only received by the ops.  The father of the petitioner was 93 years then.  But the ops are so shameless that they admitted the receipt of the said amount of Rs.1500000/- but tried to avoid the claim vide their notice dated 11.11.2019.  In reply the father of the petitioner sent another legal notice through his ld. Advocate dt.18.11.2019 but after that no written reply was received from the side of the ops.  OP-1 received the legal notice on 2.11.19 at his residence mentioned in the cause title but did not responded.  In the notice dated 11.11.2019 the ops has categorically admitted their deficiencyin service by asking the petitioner’s father to come to a reasonable amicable settlement of the dispute.  ON December 2020, the ops asked the petitioner and his father to come at Genex B.ed college, Polba Sugandha that is the present residential unit of the op -1 for an amicable settlement of the dispute.  The petitioner and his father visited the place and the op-1&2 assured the petitioner that two flats in question would be handed over to them within February 2021 but as usual the ops fails to keep their words and on 5.12.2020 after receiving notices the ops lastly visited the rented residence of the petitioner and boldly stated to the father of the petitioner that they have to wait another year for the flat and if they wan’t to wait, then the ops cannot do anything.  Hearing this, the father of the petitioner got seriously ill and was totally collapsed.  Due to deficient service and unfair trade practice on the part of the ops the petitioner’s father gone through huge mentalagonyand pain and huge monetary pressure.  His totally life’s saving, his shelter was gone.  He just wanted to have a roofover his family’s head but because of the ops, their only shelter was vanished from the petitioners.  Being in somuch painandagonyand for the unbearable situation,the father of the petitioner expired on 25.12.2020.  The petitioner being theonly child of the said Kamal Kumar Ghosh is contesting this case.  Stillthe petitioner and hisfamily is paying rent Rs.5000/- p.m.

Complainant filed the complaint petition praying direction upon the opposite party to provide two flats at Kasba (super built up area) according to the agreement.  Alternatively  to pay a sum of Rs. 1500000/- alongwith banking interest on an from 23.5.2011  and banking interest Sr. citizen F.D scheme @6.20% P.A on amount Rs.15 lacs and  to pay a sum of Rs.100000/- for mental torture harassment mental agony and for negligence act andconducting the deficiency of service and to pay a sum of Rs.50000/- for rent charge since 2011 to till date and to pay a sum ofRs.20000/- for cost of the suit.

Defense Case:-The opposite party Nos.1and 3 contested the case by filing separate written versions denying inter-alia all the material allegation as leveled against them and stated that the complainant filed the instant complaint not for any bonafide relief but with malafide intention to harass the ops. The op -1 further stated that this ld. commission has no jurisdiction to entertain this complaint because this complaint is hopelessly barred by limitation under section 69 of the consumer protection Act 2019.

The prayer made in the said complainant are all baseless.  The complainant is not entitle to get any relief not only because he is not the consumer in accordance with specific provision of the consumer protection act 2019 as well as the instant complaint is hopelessly barred by limitation under section 69 of the Consumer protection Act 2019.

The opposite party No. 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and prays to dismiss this instant case.

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.

            The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

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

            Argument as advanced by the agents of the complainant and the opposite parties heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

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 parties even after appearance in this case and after filing written version, have not filed any petition on the ground of non-maintainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties 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 Singur, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. 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 side 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 a consumer in the eye of law. This legal principle has been observed by Hon’ble Apex Court in the case of Experion Developers Pvt. Ltd. vs. Sushma Ashok Shiroor and it is reported in AIR2022SC1824.

   All these factors are clearly depicting that this case is maintainable and complainant is a 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 parties 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 pints 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.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that there are agreements in between the father of the petitioners and ops and the said agreements were executed on 23.5.2011.
2. It is also admitted fact that the father of the petitioners sold the residential house at Kasba and arranged Rs. 15,00,000/-.
3. There is no controversy over the issue that the ops agreed to provide two flats measuring about 1000 sq.ft. and 500 sq.ft. to the father of the petitioners.
4. There is no dispute over the issue that the father of the petitioners had paid the amount of Rs. 15,00,000/- for the said flats in favour of op nos. 1 to 3.      
5. It is admitted fact that the said amount of Rs. 15,00,000/- was paid by the petitioners’ father vide 2 cheques bearing no. 082801 and 082802 drawn on Axix Bank, Singur Branch.
6. It is also admitted fact that the father of the petitioners also issued another cheque being no. 082804 drawn on Axix Bank, Singur Branch.
7. There is no controversy over the issue that the said cheques got cleared on 25.5.2011 and 2.6.2011 respectively.
8. There is no dispute over the issue that as per agreements the ops agreed to hand over the said flats within April, 2013.      
9. It is admitted fact that the ops have not yet handed over the said flats to the petitioners inspite of repeated demand.
10. It is also admitted fact that the father of the petitioner had sent legal notice dt. 11.11.2019 to the ops which were received by the ops and tried to enter into amicable settlement.
11. There is no controversy over the issue that the ops agreed to provide the said flats within the month of February, 2021 as per amicable settlement but the ops failed to do so
12. There is no dispute over the issue that the father of the petitioners expired on 25.12.2020  

                Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

                 On the background of the above noted admitted  facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainants/ petitioners are claiming that their father paid Rs. 15,00,000/- for getting the two flats at Kasba but due to deficiency of service and unfair trade practice the petitioners have not yet received the possession of said flats but on the other hand the ops adopted the plea that this case is not maintainable and this District Commission has no jurisdiction to try this case. But these points have already been discussed and all these points have been decided in favour of the petitioners.

For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords this District Commission after going through the evidence on record and material of this case record finds that ops admitted the fact of receiving Rs. 15,00,000/- from the father of the petitioners and also assured to hand over the possession of said flats to the father of the petitioners but there is no evidence on the part of the ops to show that they have handed over the said flats and delivered possessions in respect of the said flats and also had taken steps for execution and registration of the sale deed. In this regard it is the settled principle of law that failure to deliver possession of the apartment within the time stipulated as per agreement is deficiency of service  and instance of unfair trade practice and in that event the ops are bound to refund the amount received by them from the consumer with interest @ 9% per annum. This legal principle has been observed by the Hon’ble Apex Court and it is reported in AIR2022SC1824.

            A cumulative consideration of the above noted discussion goes to show that the complainants have proved her case in respect of all the points of consideration adopted in this case and for that reason the complainants are entitled to get relief in this case in respect of all the points of consideration.

In the result it is accordingly

ordered

that the complaint case being no. 62 of 2021 be and the same is allowed on contest but in part against the ops.

It is held that the petitioners are entitled to get refund of Rs. 15,00,000/- along with interest @ 9% per annum from 23.5.2011 and also entitled to get Rs. 1,00,000/- as compensation for deficiency of service and unfair trade practice on the part of the op nos. 1, 2 and 3 and also entitled to get litigation cost of Rs. 20,000/- from op nos. 1 to 3.

Opposite party nos. 1, 2 and 3 are directed to pay the said amount within 45 days from the date of this order otherwise complainants are given liberty to execute this order as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite party nos. 1, 2 and 3 are also directed to pay and/ or deposit Rs. 10,000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

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.