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

Case No. CC/125/2021.

Date of filing: 30/09/2021.                     Date of Final Order: 5/3/2024.

Shri Binod Kumar Gupta,

s/o Late Rajeshwar Prasad Gupta,

r/o 11/1, Barobagan Lane,

P.O. Alambazar, P.S. Baranagar,

Dist. North 24 Parganas, PIN. 700035.                                                           …..complainant

vs

1. Sk. Majaffar Rahaman,

s/o Sk. Nijam Uddin,

r/o Vill. Mrigala, P.S. Dankuni,

Dist. Hooghly, PIN. 712311.

2. Sekh Mohammad Arik Saman,
3. Sekh Mohammad Arif Jaman,

(2) and (3) are s/o Sekh Mohammad Rafique,

Both are residents of Vill. Kapasharia,

P.O. Boro (Chanditala), P.S. Chanditala,

Dist. Hooghly, PIN. 712702.……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 ops had entered into one agreement with the complainant on 16.4.2014 and according to the terms and conditions of the said agreement within one year the transfer of the said flat no. 1A in the 1^st floor allotted in favour of the complainant measuring about 588 sq.ft. (including 20% Super Build Up area) comprised in R.S. Plot no. 75 corresponding to L.R. Plot no. 83 under R.S. Khatian no. 50 & 54, L.R. Khatian no. 3706 situated at Mouza- Mrigala, P.S. Dankuni, Dist. Hooghly as schedule of the said agreement and the complainant had paid the amount of Rs. 50,000/- as Earnest Money to the ops for booking of the said flat and meanwhile after the said agreement and at the requests of the ops, the complainant had paid the totaling amount of Rs. 4,30,000/- to the ops but the ops failed to comply the clause 9 of the said agreement wherein it had been clearly mentioned that the transaction be completed within 12 months from the date of the said agreement dt. 16.4.2014. Moreover the ops failed to transfer the said flat in favour of the complainant purchaser which the complainant had already paid for the same as advance and the complainant paid the said totaling amount of Rs. 4,30,000/- as per schedule of complaint to the ops by way of payments through cheques dt. 17.4.2014 amounting Rs. 50,000/-, 7.5.2014 amounting Rs. 50,000/-, 28.6.2014 amounting Rs. 50,000/-, 6.8.2014 amounting Rs. 50,000/-, 11.11.2014 amounting Rs. 30,000/-, 1.2.2014 amounting Rs. 20,000/-, 20.1.2015 amounting Rs. 25,000/-, 11.3.2015 amounting Rs. 25,000/-, 12.5.2015 amounting Rs. 40,000/-, 11.6.2015 amounting Rs. 10,000/-, 6.7.2015 amounting Rs. 30,000/-, 14.7.2015 amounting Rs. 50,000/- of United bank of India, Alambazar Branch to the ops and the ops received and acknowledged the same. The ops demanded more money but did not whisper regarding the compliance of the said agreement and neglected to deliver the said flat to the complainant inspite of several requests even now without any reasons the ops had stopped the construction of the said multistoried building and the complainant waited for obtaining his said flat from the ops for several years by way of due requests and repeated calls for the same but the ops assured him verbally but practically did nothing. Then the complainant after being aware of the said negligent acts of the ops requested verbally for returning back of the said amount of Rs. 4,30,000/- but the ops did not pay any heed to the said request and then finding no other alternative the complainant sent advocate’s letter dt. 8.3.2021 to the ops demanding for returning of the amount of Rs. 4,30,000/- but the ops did not pay any heed to that and reluctant to give response to the said letter that had been received by them on 30.3.2021. Then the ops became furious and threatened the complainant with dire consequences when the complainant on 10.9.2021 directly approached at the office of the ops and requested them to return/ refund the amount of Rs. 4,30,000/- for which he had paid them for the said flat. On 10.9.2021 just after the said incident the complainant rushed to the concerned P.S. to lodge a diary against the ops but the concerned P.S. did not lodge any diary against the ops and advice the complainant to take shelter before appropriate court of law. Thus, the complainant bound to file this instant case against the ops before this Commission.

Complainant filed the complaint petition praying direction upon the opposite parties to refund of Rs. 4,30,000/- along with upto date interest @ 18% till date and to pay a sum of Rs. 4,50,000/- as compensation for harassment and mental agony and to pay a sum of Rs. 50,000/- as litigation cost.

Defense Case:-  The opposite party Nos. 2 and 3 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the OP-2&3 are partner of a partnership firm represent by its partner for developing land and constructing the flat.  On 19^th November,2013 an registered agreement has been made by Additional Registrar of Assurance at Kolkata between the OP-1 and partnership firm of the OP-2&3 namely R.S. Construction and thereafter the OP-2&3 have constructed the building over the property as per agreement and the building formerly known as ÁBN BHABAN’ at Mrigala, P.O&P.S-Dankuni, Dist-Hooghly after invested  of huge amount of money by borrowing from the present market.  The OP-2&3 as partner of a developer firm they had engaged on several project under local area and they have completed the construction work of the said apartment and gave possession and registered deed of conveyance to others flat owners, as well as the land owner as per agreement and they are still residing there.  But in the present suit property after compellation of work at the end of OP-1 has filed a writ application before the Hon’ble High Court Calcutta vide no. W.P.No.30589(W) of 2015 against the State of West Bengal regarding the property question with ulterior motive.  And the OP-1 is the answerable in that case.  The present petitioner though has booked the flat but he is list interested to pay the rest amount within the time as per agreement dated 16.4.2014 between the petitioner and present OP-2&3 and he did not eager to purchase the said flat reason best known to him.  But as per agreement dated 16.4.2014 the OP-2&3 all along completed the flat as well as other flat but the petitioner in collusion with the OP-1 did not comply the clause of the agreement.  The agreement dated.16.4.2014 is void and the present case is barred by Law of Limitation, only to create cause of action petitioner send an advocate letter to the OP-1&3 after lapse of period of limitation.  The petitioner unable to purchase the flat within the time but he is taking a false plea of delay, and the OP-1&2 submits that the flat is ready now.  The OP-2&3 already constructed the construction over the schedule property in the present case after taking huge amount of money from the present market.  The petitioner knowing fully the present situation and relation with him, taking advantages of the position of the OP-2&3 and the OP-2&3 are requested the petitioner to pay the rest amount and made a registered deed of conveyance but the petitioner ignore the same and in good faith and relation the OP-2&3 did not take any legal steps against the petitioner even after ready of the present flat and the OP submits that the flat in dispute is habitual condition for the petitioner and the petitioner is obligatory to purchase the same. 

The answering OP-2&3 craves leave to file additional written version or relevant document at the time of hearing.  The answering OP-2&3 submits that the case is to be rejected with a ground that there is no specific cause of action arose against the OPs.  And petition of the petitioner is self contrary that the complainant is not entitled to get the reliefs prayed for.  That the answering opposite party no.2 and 3 submits that when the alleged agreement was executed it was mentioned therein that the Petitioner is bound to make transaction of the flat in question within 12 months from the date of execution of the agreement. But the Petitioner paid her last payment on 14.07.2015 which is after expiry of the stipulated period and instant case was filed beyond the expiry of limitation under the purview of the Consumer Protecting Act as amended up to date according to the complaint. Thai date of execution of the impugned agreement was on 16.04.2014. The instant case is thus beyond the limitation and non maintainable. That the answering opposite party nos.2 and 3 sate that they were all along redy to handover the agreed flat and your petitioner is to be bound to purchase and register the same but the complainant was guilty of not paying the balance consideration money. The complainant took time to pay the balance consideration money and the answering opposite party nos.2 and 3 believed the complainant. Astonishingly, the complainant filed the instant case on false facts. The complainant has filed the instant case for wrongful gain in the name of compensation with false allegation. That the complainant has not made out a case that he has suffered mental loss and agony or was harassed. As such, the complainant cannot demand nor is entitled to receive any compensation. That it is the greedy complainant who has subjected the opposite party nos.2 and 3 to harassment by not paying the balance consideration and also humiliation by lodging instant false case and claimed huge illegal compensation beyond his payment.

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 party nos. 2 and 3.

            The answering opposite parties 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 nos. 2 and 3 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 nos. 2 and 3 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 Mrigala, P.S-Dankuni, 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 the complainant has paid Rs.430000/- out of total consideration money in respect of flat no.1A at the 1^st floor of ABN Bhaban Mrigala under P.S-Dankuni Dt-Hooghly.  It is further revealed from the case record that the complainant was interested to purchase the said flat and repeatedly requested the OP-2&3 for delivery of possession and execute and register the deed of conveyance in respect of the above noted flat but the OP-2&3 has failed and neglected to deliver the possession of the said flat to the complainant and also failed to execute and register the deed of conveyance.  It is also reflected that the complainant ultimately claimed the refund of the money but the OP-2 & 3 has also failed to refund the said amount of Rs.430000/- which has been paid by the complainant to the OPs.  Evidence on record goes to show that the OP-1 has not contested this case and so this case has been proceeded ex parte against the OP-1.  It appears from the case record that the OP-2 and 3 have pointed out that they were ready to execute and register the sale deed but as the complainant has not paid the balance consideration amount the OP-2&3 has failed to hand over possession and to execute and register the deed of conveyance.  But this District Commission after going through the evidence on record finds that the OP-2&3 have not filed any document to show that they have intended to deliver possession of the said flat to the complainant and also has failed to show that they had taken steps for intimating the complainant for making payment of the balance consideration money.

In view of this position the above noted defence alibi which is adopted by OP-2&3 also have adopted the plea that the OP-1 has filed one writ petition being no.W.P.No.30589(W) of 2015 but it is important to note that the OP-2&3 have not filed any document to show the result of the above noted writ petition.  Thus this point of contention of the OP-2&3 also cannot be accepted.

Under the above noted circumstances the question is whether the complainant is entitled to get refund of Rs.430000/- from the OP-2&3 or not?  In this regard the decision which is pronounced by Hon’ble Apex Court in the case of Experion Developers Pvt. Ltd. Vs. Sushma Ashok  Shiroor which is reported in AIR2022SC1824 where Hon’ble Apex Court has been pleased to observe that when the OPs Promoter Developers failed to deliver possession of the apartment within stipulated period of time, the consumer (complainant of this case) is entitled to get back the consideration money which has been paid to the OPs promoter developers alongwith interest @Rs.9% per annum.

In this complaint case the complainant has claimed Rs.430000/- from the OPs which has not yet been refunded.  In view of the above noted pronouncement / observation of Hon’ble Apex Court the complainant is entitled to said amount of Rs.430000/- alongwith interest @ Rs.9% per annum from the OPs.

In the result it is accordingly ,

ordered

that this complaint case no. 125 of 2021 be and the same is allowed on contest against the OP-2&3 and it is allowed ex parte against OP-1  but in part.

Opposite parties are directed to pay the complainant Rs.430000/- alongwith interest @ Rs.9% per annum  within 45 days from the date of passing of this judgment.  Otherwise complainants are given liberty to execute this award as per law.

No order is passed as to payment of compensation and litigation cost as the complainant has failed to establish the basis of such claim.

            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.