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

Case No. CC/158/2021.

Date of filing: 09/12/2021.                     Date of Final Order: 12/12/2023.

1. Mrs. Ruby Dey Biswas,

w/o Mr. Susovan Biswas,

2. Mr. Susovan Biswas,

s/o Mr. Susanta Kumar Biswas,

both are residing at 44, B.B. Street,

P.O. Bhadrakali, P.S. Uttarpara,

Dist. Hooghly, PIN 712232.……complainants

1. Simplex Estates Private Limited

Having its registered office at

36A, Bentick street (1^st floor),

P.S. Hare Street, Kolkata 700069.

2. Mr. Hanuman Mal Baid

s/o Mr. Bhairudhan Baid,

residing at 6 Round Tank Road, Howrah.

3. Mr. Soumen Banik,

s/o Late Dulal Chandra Banik,

r/o 360, RabindraSarani, North Ghoshpara,

Bally, Howrah- 711227.……opposite parties.

Before:            President, Shri Debasish Bandyopadhyay.

                          Member,  Debasis Bhattacharya.

                         Member, Babita Chaudhuri.

FINAL ORDER/JUDGEMENT

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 the complainants are purchaser of a garage from OPs at Ground floor admeasuring 170 sq.ft (super built up area) in the “Dulal Chandra Abasan” and the complainants after long discussions agreed with the proposal of the ops to purchase a self contained garage on the ground floor at the said premises and both the parties entered into an agreement for sale dt. 15.3.2017 and the same was duly notarized and as per terms and conditions of the said agreement the op nos. 2 and 3 are agreed to transfer a garage on the ground floor of the newly constructed building measuring about 170 sq.ft. super built up area and the said agreement at a total consideration price of Rs. 3,80,000/-  and as per the said sale agreement the complainants transferred all consideration amount to the op nos. 1 and 2 in the as per manner which is described in the complaint petition but after transferring all the consideration amount steps by steps the op nos. 1 and 2 demanding that there are still due of Rs. 50,000/-. Complainants repeatedly inform the ops about the last payment which the ops claiming due has already been paid through cheque in the name of Mr. Soumen Banik (op no. 3). After repeated requests the ops instead of handover the said garage put pressure to pay Rs. 50,000/-.

Complainant filed the complaint petition praying direction upon the opposite parties to comply the terms and conditions of the agreement for sale dt. 15.3.2017 and to execute and register the appropriate deed of conveyance in favour of the complainants of the schedule garage and handover the possession as per terms of the said agreement and to pay a sum of Rs. 2,00,000/- as compensation and to refund Rs. 3,80,000/- with 18% interest per annum.

Defense Case:-  The opposite party Nos. 1 to 3 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the complainants entered into a sale agreement dt. 15.3.2017 with the op no. 1 for purchasing one garage at a consideration of Rs. 3,80,000/- and subsequently the complainants have paid Rs. 3,30,000/- by several installments and Rs. 50,000/- was due and the op no. 1 through its managing directors requested the complainants to execute and register sale deed in their favour by paying the rest consideration value of Rs. 50,000/- but the complainants instead of paying rest consideration value gave proposal to adjust a sum of Rs. 50,000/- towards their personal transaction/ business in between the complainants and the op no. 3 which was not at all permissible and while the complainant understood that the op no. 1 refused to entertain any personal transaction in between the complainant and op no. 3, the complainants then kept pressure upon ops by sending two letters dt. 2.8.2021 and 21.9.2021 and in turn the op no. 1 send two reply letters dt. 10.8.2021 and 8.10.2021 stating that the company is ready and willing to execute a registered sale deed in favour of the complainants as and when the due consideration money would be paid in favour of the company but the complainants intentionally ignoring those letters  sticked to the points of giving a personal loan of Rs. 50,000/- to one of the partner of the op no. 1 and is proposing to adjust the same amount with the consideration value which is not at all possible for the op no. 1 as the company is a separate entity from the members constituting it. As such there was no deficiency on the part of the op no. 1 of the above case is not at all maintainable and if the complainants have any grievances against any partner to recover the said money of Rs. 50,000/- they have to choose separate forum and there was no deficiency on the part of the op no. 1 regarding execution and registration of sale deed in favour of the complainants rather the company is always ready and willing to execute and register sale deeds in favour of the complainants after taking balance consideration value of Rs. 50,000/- and accordingly the alleged claims of the complainants regarding deficiency of service and illegal trade practice on the part of the ops’ cannot stand and accordingly the complaint filed by the complainants is liable to be dismissed and the complainants are not entitled to get any relief as prayed for and the compliant case should be rejected 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 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 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 nonmaitainability 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 Bhadrakali, P.S-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 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.

            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 the complainants intended to purchase a garage from the Ops measuring about 170 sq.ft. in the “Dulal Chandra Abasan”.
2. It is also admitted fact that  the parties entered into an agreement for sale on 15.3.2017.
3. There is no controversy over the issue that the said agreement was not registered but it was duly notarized.
4. There is no dispute over the issue that the Ops agreed to sell the said garage at the consideration price of Rs.380000/-.    
5. It is admitted fact that the complainants out of the said amount have paid Rs.330000/- to the OPs by phase by phase.
6. It is also admitted fact that there was total due of Rs.50000/-.
7. There is no controversy over the issue that complainant was willing and ready for making payment of Rs.50000/- at the time of execution and registration of the deed of conveyance.
8. There is no dispute over the issue that the OPs have not yet executed and registered the said deed of conveyance.        
9. It is admitted fact that  the OPs have not yet handed over and / or delivered possession of the said garage to the complainants.
10. It is also admitted fact that the complainants had issued two letters dated.2.8.2021 and dtd. 21.9.2021 to the OPs for execution and registration of the deed of conveyance and delivery of possession.
11. There is no controversy over the issue that thereafter the complainant has instituted the complaint case.   

              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 that the Ops have taken Rs.330000/- and even thereafter they have not executed and registered the deed of conveyance and it is clear case of negligence and deficiency of service but on the other hand the OPs have adopted the defence alibi that the complainant has not yet paid Rs.50000/- for which the Ops have not yet executed and registered the deed of conveyance and so there is no negligence of deficiency of service on the part of the OPs.

            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 finds that the complainants have paid Rs.330000/- to the Ops but the OPs have not yet taken any steps for execution and registration of the deed of conveyance.  It is also revealed that the complainants also have not delivered the possession of the said garage.  In this regard it is settled principle of law that when the OPs inspite of taking advance amount have not executed and registered the deed of conveyance and also have not delivered possession of the premises they are by the bound to repay the advance amount with interest @Rs.9% p.a.  This legal principle has been observed by the Hon’ble Apex court and it is reported in the “Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor.”  This case law is reported in AIR2022SC1824 all these factors are clearly reflected that the complainants are entitled to get back the advance amount of Rs.3,30,000/- alongwith interest @ 9% p.a. from the OPs.

            A cumulative consideration of the above noted discussion goes to show that the complainant has proved her case in respect of all the points of consideration adopted in this case and for that reason the complainant is 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. 158 of 2021 be and the same is allowed on contest but in part.

Opposite party nos. 1 and 2 are directed to pay the said amount of Rs.3,30,000/- alongwith interest @ 9% p.a. from the Ops.  Ops are directed to pay the said amount within 60 days from the date of this order otherwise complainants are given liberty to execute this award as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite party nos. 1 to 3 are 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.