FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainant stating that op no.1 agreed to sell in writing one complete flat constructed on the scheduled mentioned building to the complainant in which he has mentioned that he is presented by its partners op no.1 inter alia but in the sale deed in respect to the shop room disclosed himself as proprietor instead of the partners.  So one notice was given through advocate by complainant in which the said op no.1 has been mentioned ads partner but actually there is no partnership business.  The business is of proprietorship for which the present complaint has been filed against the op no.1 in his proprietorship capacity and op no.2,3,4 &5 all are being the owner of the area of land measuring 2 cottah equivalent to 0.029 for an acre comprised in R.S. Plot nok.3734 and 3735 under Khatian no.1564 corresponding L.R. Plot no.6421 & 4622 under L.R Khatian no.4626 lying within Mouza Uttarpara, J.L.no.12, municipal holding no.42, New 122, Banerjee Para street, Ward no.16 under Uttar-para – Kotrung municipality, p.s. Uttarpara, Dist-Hooghly particulars of which mentioned in the scheduled mentioned below that the op no.1 for the purpose of making construction of building on the schedule mentioned property but the copy of development agreement between op no.1 & op no.2 – 5 has not been given and also there is no written agreement with the petitioner regarding the selling of one shop room mentioned schedule and the complainant herein on good faith and bonafide belief that the op no2 is bonafide developer and also there is valid developer agreement executed by the op no.2-5 with the opno.1 agreed to purchase the one shop room proposed to be constructed on the schedule mentioned measuring a covered area 146 sq. ft. and super built up area  161 sq.ft. grey cement floor particulars of which given in the schedule mentioned.

The op no.1 neither supplied developer agreement copy of Title Deed, copy of sanction plan, municipal tax receipt and other documents even did not enter into an agreement for sale of the shop room as mentioned in the schedule mentioned and on good faith and bonafide belief, the petitioner agreed to purchase the said schedule mentioned flat for the consideration of Rs.3 lakh and the said amount was paid by installment in terms of agreement to the op no.1 and the petitioner sent one notice of request through his advocate by letter dt.29.08.2018 but due to typographical mistake consideration of Rs.2 lakhs has been typed instead of Rs.3 lakh but there is no dispute that the price was Rs.3 lakh and op no.1 also accepted the entire consideration of Rs.3 lakh not Rs.2 lakh. And the petitioner made request to the op for supplying of relevant documents but the op party no.1 did not hand over any document and also was not at all agreed to hand over all the relevant documents of the shop room and the complainant on good faith and considering that the op no.1 shall execute and register the proper instrument of transfer of the schedule mentioned flat in conformity with the provision of law on the basis of sanction plan and the petitioner on good faith made payment on the assessed value of Rs.6,48,240/- @ Rs.9% to the op and the op no.1 only asked the petitioner to be present in the registration office and both petitioners were present andon the date of registration, even draft deed was not given and the original deed was not shown and read over and on good faith both the petitioner executed the deed.  The op no.1 alone went to registration office on 4^th day of February, 2015 at Serampore ADSR office and op no.1 signed on the deed as constituted Attorney on behalf of 2 – 5 and the both the petitioner also were asked to put their signature and both the petitioner executed the deed and registration was completed and duly registered on book no.1, volume no.2 at pages from 4060 – 4076 being no.00796 for the year2015 of ADSR office Serampore and the petitioner after getting the delivery of the original deed from the op no.1 after 7 days from the date of registration and found that the op no.1 executed the deed on behalf of the land owner being op no.2-4 and there is only mentioning “Constituted Attorney on behalf of  & Self”  and actually in the purchase deed, the op did not sign as a developer that is on behalf of the proprietorship firm.  The opno.2 – 5 they are mere land owner and they have no connection with the flat and illegally has executed the deed.  The status of the op names, father’s name, name of the company have not been mentioned but it appears that only in the description of Kha schedule building in the deed there is mentioning regarding sanction of building plan by Uttarpara – Kotrung Municipality of the constructed building on Ka schedule property, but no date no particulars of sanction, planno. And other particulars has not been given and the petitioner after getting delivery of the original purchase deed of the shop room sent to the office of the proforma op for the purpose of mutation of room of the purchased property of schedule mentioned but the municipality refused to give any application form for mutation and further conveyed that no mutation can be given as there is no sanction of building plan taken from the municipality and the construction made on the schedule mentioned property is totally illegal without any sanctioned plan and mentioning of taking sanction plan in the description of Kha schedule of purchase deed is also illegal and amounts to cheating and the op no.1 has committed an offence and the sale deed executed by op no.1 as constituted attorney and being no. 796 of 2015 is totally illegal and without any basis and void.  As there is no sanction of building plan, so municipal authority has no legal right to grant mutation of the purchased property of the petitioner.

The deed is totally void and by which the petitioner have not acquired any right, title, interest in respect of shop room.  Firstly, as there is no sanction of building plan and secondly the op no.1 as proprietor of Annapurna Realty has not executed the sale deed, thirdly there is no mentioning of particulars of sanction plan and further the op no,1 made fraud practiced upon the petitioner in mentioning the Ka schedule in the purchase deed.  That actually the op no.1 has not executed the deed legally for selling the Ga schedule shop room as mentioned in the deed and besides that the op no.1 by fraudulent practice has taken Rs.3 lakhs being sale price and also the op no.1 taking the advantage of taking entire sale price started to create pressure upon the petitioner for payment of 9% on the amount of the assessed value and there is no law for the time being in force that 9% of sale price is to be taken for execution, registration of the deed and the said act is amounting to extortion and is criminal offence.

OP no.1 taking the petitioner in his clutch has committed all that illegal act and offence and the petitioner craves leave to take criminal action against the op no.1 for the offence committed.  But the petitioner at present will not get the total relief before the criminal court and for which has taken shelter before the consumer Dispute Redressal Forum for proper remedy and the petitioner jointly with some other purchaser on 12.11.2016 for the purpose of mutation went to the office of the proforma op and pro-op after considering the complaint made verbally informed to meet with the Chairman but actually the municipality did not consider regarding the mutation and asked that no sanction plan, no mutation and entire step is to be taken by the petitioner.  But actually the petitioner has no legal right for applying of sanction of plan or to take any sanction of building plan individually, and the op no.1 has given the possession of the purchased shop room being scheduled mentioned property to the petitioner but the petitioner is not in a position to do any act either for starting any business taking trade license and also to utilize the same for other purpose in absence of the valid construction.  And the petitioner is facing both mental troubles and financial troubles and passing the days with great anxiety.  Both the petitioners are senior citizen and by loan acquired money for the purpose of getting source of income purchased the shop room by paying the considerations but has been frustrated.

            The floor of the shop room is of grey cement but the price taken by the opposite party no. 1 as marble floor and also fraudulently mentioned in the schedule description of Ga Schedule as marble instead of grey cement floor and for mentioning the marble floor, the excess charge @ Rs. 100/- per sq.ft. extra has been taken by the registering authority only due to fault, latches and negligence and also for the purpose of grabbing more money on the basis of valuation has mentioned the marble floor instead of grey cement floor. Lastly the complainant sent one letter by registered post with AD through Advocate in the correct name and address of the op no. 1 and said notice was duly accepted by the op no. 1.

            Complainant filed the complaint petition praying direction upon the opposite party no. 1 to execute and register the proper  instrument of transfer schedule mentioned shop room at the cost of the op no. 1 in favour of complainant after observing all formalities that is taking sanction of building plan from the municipality and for the purpose of completion and registration, proper stamps duty and registration fees and all other charges within a specified reasonable time and in failure the complainant may be permitted to execute and register proper instrument of scheduled mentioned shop room through the Forum and to pay a sum of Rs. 1 lakh for the purpose of harassing causing mental agony and to pay a sum of Rs. 6,48,240/- being the 9% of  the total assessed value of Rs. 6,48,240/- taken by op no. 1 by extortion and together with interest and to pay a sum of Rs. 50,000/- for noncompliance of the request made through Advocate’s letter dt. 29.8.2018 registered on 29.8.2018 and to pay a sum of Rs. 50,000/- and to pass necessary order as deem fit and proper.

Defense Case:-  The opposite party No. 1 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that originally the property belonged to the father of the opposite party nos. 2 to 5 and during his life time he transferred his favour of the opposite party nos. 2 and 4 by registered deed of gift dt. 16.2.1999 and after bequeathing the property by the registered deed of gift the opposite party nos. 2 and 4 became the owner of the property and thereafter the opposite party nos. 2 and 4 filed a T.S. being no. 31/2000 before the Civil Judge (Jr. Divn.) 1^st Court, Serampore for eviction of license against the opposite party no. 3 and after getting the summon the opposite party no. 3 entered into appearance and filed written statement and after hearing both sides the ld. Court has been pleased to pass an order and decreed the suit and thereafter getting the judgement and decree the opposite party no. 3 filed an appeal being T.A. no. 45/2004 before the District Judge, Hooghly and thereafter the appeal transferred to Addl. District Judge cum Fast Track First Court, Hooghly and after hearing the both sides the ld. Court has been pleased to pass an order remanded back the appeal before the Trial Court and after passing the order of remand back the suit has already been remand back to the trial court and the plaintiff in the trial court filed a petition under order 3 Rule 1 read with Section 151 C.P.C. and the ld. Court has been pleased to pass an order dismissing the suit for non prosecution and thereafter the opposite party nos. 3 and 5 executed a power of attorney in favour of the opposite party no. 1 dt. 24.8.2011 and they entered into an agreement on 19.11.2010 and thereafter the opposite party no. 1 duly stationed the plan and duly mutated and raised construction as per sanction plan and thereafter opposite party no. 1 duly registered the deed in respect of flats/ shops and in favour of the intending purchasers. Thus the complaint is liable to be dismissed with cost.

            The opposite party Nos. 2 and 4 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that  op no.2 & 4 are being the owner of the schedule mentioned property of the complainant which they have got by way of registered deed of gift from their father (now deceased) and mutated their names in the Municipality and also in the L.R record and Op no.1 representing this op no.2 and 4 a reputed develo0er made request to this op no.3 & 5 to allow him to make construction of multi-storied building on the said property and assured to give as consideration one complete flat measuring 600 sq. ft. to this op no.2 and Rs.50,000/- and one complete flat measuring 650 sq. ft. on the first floor to this op no.4 and this O.Ps. entire Development Agreement jointly and also executed Power-of-Attorney jointly and had/have no connection with O.P. No.3 and 5 never acquired any right, title, interest and possession and that this O.P. was in bonafide believe that the  construction of the building has been made by taking Sanction of Building Plan, but after getting complaint made by the Petitioner to the Municipality came to learn that no Sanction of Building Plan has been taken and this O.P. No. 2 was only given a flat measuring 360 Sq. Ft. Carpet Area and covered area 415 Sq. Ft. and it was also agreed for the less area price @ Rs. 3000/- per Sq. Ft. is to be given and this O.P. No. 4 only was given one Complete Flat measuring 530 Sq. Ft. covered area  and for less area nothing has been given and the wife of O.P. No. 4 has purchased one flat in the Ground Floor totally incomplete condition and said complaint was made by the wife of O.P. No.4 and no amount has been paid to the O.P. No. 4 . So, all acts done by O.P. No. 1 fraudulently only with the intention to cheat, not only the O.P. No. 2 and 4 but also the Complainant and other prospective purchaser and this OP has been made as party in personal capacity.  Actually, this op no.2 & 4 never had any direct connection either with the petitioner or with any one and only executed agreement and power of attorney jointly and actually this op no.2 & 4 is being unnecessary party in the present case and their names is required to be expunged fromthe cause title of the complaint

            The opposite party Nos. 3 and 5 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that originally the property belonged to the father of the opposite party nos. 2 to 5 and during his life time he transferred his favour of the opposite party nos. 2 and 4 by registered deed of gift dt. 16.2.1999 and after bequeathing the property by the registered deed of gift the opposite party nos. 2 and 4 became the owner of the property and thereafter the opposite party nos. 2 and 4 filed a T.S. being no. 31/2000 before the Civil Judge (Jr. Divn.) 1^st Court, Serampore for eviction of license against the opposite party no. 3 and after getting the summon the opposite party no. 3 entered into appearance and filed written statement and after hearing both sides the ld. Court has been pleased to pass an order and decreed the suit and thereafter getting the judgement and decree the opposite party no. 3 filed an appeal being T.A. no. 45/2004 before the District Judge, Hooghly and thereafter the appeal transferred to Addl. District Judge cum Fast Track First Court, Hooghly and after hearing the both sides the ld. Court has been pleased to pass an order remanded back the appeal before the Trial Court and after passing the order of remand back the suit has already been remand back to the trial court and the plaintiff in the trial court filed a petition under order 3 Rule 1 read with Section 151 C.P.C. and the ld. Court has been pleased to pass an order dismissing the suit for non prosecution and thereafter the opposite party nos. 3 and 5 executed a power of attorney in favour of the opposite party no. 1 dt. 24.8.2011 and they entered into an agreement on 19.11.2010. Thus the complaint is liable to be dismissed with 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.

            The answering opposite parties filed separate 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 party 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 party 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 and ops are residents of Uttarpara, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 20 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 11 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 24A of the Consumer Protection Act, 1986 is very important and according to the provision of Section 24A 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) (d) of the Consumer Protection Act, 1986 it appears that this case is maintainable and according to the provision of Section 2 (1) (d) of the Consumer Protection Act, 1986. Complainant is a consumer in the eye of law. It is the settled principle of law that a consumer invoking the jurisdiction of the District Commission can seek such relief as he or she considers appropriate. 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 father of the op nos. 2 to 5 was the original owner of the suit property.
2. It is also admitted fact that the father of the op nos. 2 to 5 transferred the property to op nos. 2 to 4.
3. There is no controversy over the issue that the said property was transferred by way of executing a deed of gift dt. 16.2.1999 and thereafter the op nos. 2 to 4 became the owner of the suit property.
4. There is no dispute over the issue that the op nos. 2 to 4 had filed a civil suit being no. Title suit no. 31/2000 before the ld. Civil Judge (Jr. Division) 1^st Court, Serampore for eviction of license against the op no. 3.
5. It is admitted fact that op no. 3 after getting summon contested the said case by filing written statement.
6. It is also admitted fact that after hearing both sides ld. Trial Court has been pleased to decreed the said suit.
7. There is no controversy over the issue that thereafter the op no. 3 had filed an appeal being no. T.A. 45 of 2004 before the Ld. District Judge, Hooghly.
8. There is no dispute over the issue that thereafter the said appeal was transferred to the Court of Additional District Judge cum First Tract Court, Hooghly.        
9. It is admitted fact that ld. Judge of Additional District Judge cum First Tract Court, Hooghly thereafter remanded back the said suit to the Trial Court.
10. It is also admitted fact that after the case is remanded back to the Trial Court, the plaintiff who are the op nos. 2 to 4 of this Complaint case had filed an application under Order 3 Rule 1 read with Sec. 151 C.P.C.
11. There is no controversy over the issue that the above noted suit was subsequently dismissed for non prosecution.
12. There is no dispute over the issue that subsequently the op nos. 3 and 5 of this complaint case executed a power of attorney in favour of op no. 1 on 24.8.2011.
13. It is admitted fact that thereafter the op nos. 3 and 5 entered into an agreement with op no. 1 on 19.11.2010.
14. It is also admitted fact that the op no. 1 thereafter developed the said property and constructed multistoried building thereon.
15. There is no controversy over the issue that the complainant intended to purchase a shop room in the said property and also paid consideration money.
16. There is no dispute over the issue that the op no. 1 inspite of receiving the consideration money had not executed and registered a deed of conveyance in favour of the complainant.

              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 complainant adopted the plea that inspite of payment of consideration money to the op no. 1 no deed of conveyance has been executed and registered in respect of the schedule mentioned shop room and it is a gross negligence and deficiency of service on the part of the ops. But the ops adopted the defence plea that entire consideration money has not been paid and for that reason deed of conveyance has not been executed and registered.

            For the purpose of arriving at just and proper decision in respect of above noted difference and apple of discord between the parties this District Commission after going through the evidence on record finds that the complainant has paid consideration money to the op no. 1 and inspite of receiving the consideration money the op no. 1 has not executed and registered the deed of conveyance which is undoubtly a clear instance of negligence and gross deficiency of service. It is settled principle of law that if the promoter/ developer fails to execute and register the deed of conveyance within stipulated period of time, he is duty bound to refund the amount deposited by the consumer with interest. This legal principle has been observed by the Hon’ble Apex Court and it is reported in 2022 (2) CPR page.1.

          Thus, it is crystal clear that the complainant has proved his case in respect of all the points of consideration adopted in this case and so he is entitled to get relief which he has prayed in this case.

In the result it is accordingly

ordered

that the complaint case being no. 37 of 2019 be and the same is allowed on contest but in part.

It is held that the complainant is entitled to get and order directing the op no. 1 to execute and register the deed of conveyance in respect of the schedule mentioned shop room by complying all legal formalities of the complaint petition and to hand over possession of the same with written occupancy certificate within 45 days from the date of this judgement otherwise op no. 1 shall refund the consideration money of Rs. 6,48,240/- along with interest @ 9% to the complainant within 45 days from the date of this order. Failing which complainant is given liberty to execute this order as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite party no. 1 is also directed to pay and/ or deposit Rs. 5000/- 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.