Presented by:
Minakshi Chakraborty, Presiding Member
BRIEF FACTS OF THE CASE :
This instant case has been filed by the complainant under section 35 of the Consumer Protection Act, 2019. As per submission of the complainant, the O.p. is the owner and developer who started a residential project at premises no.36 & 36/1, Abinash Banerjee Lane, P.O.-Santragachi, P.S.-Shibpur, District Howrah – 711104.
Being attracted by the proposed plan of the said project, complainant approached the O.p. for purchasing 3(three) different flats for her family members. On 4th December, 2021 complainant entered into an agreement for Sale with the O.p. for purchasing the said three flats for which total consideration amount was fixed at Rs.35,00,000/- and on the date of execution of the said Agreement for Sale complainant paid Rs.5,00,000/- by cheque to the O.p. as part consideration and balance amount was fixed to be paid within 1 year subject to progress of work. As per statement of the complainant, on diverse dates complainant paid Rs.2,00,000/- by cash to the O.p.
The O.p. was supposed to hand over the said flats by completing the pending works such as flooring, inside plaster, stair work etc but when the complainant visited the suit flats she notice that no such works have been completed and the complainant asked the O.p. as to why she has not completed the pending works.
The complainant repeatedly requested on several occasions to the O.p. to complete the flats and handover the same to the complainant and also to execute the Deed of Conveyance or refund the amount with interest but the O.p. did not pay any heed. It is the submission of the complainant that though the complainant is ready to make the balance consideration amount and willing to get registration of the Sale Deed but the O.p. with a view to deceive the complainant is harassing her and is not ready to hand over the flats nor with execute the Deed of Conveyance for which having no other alternative the complainant has to knock the door of this Commission with a prayer for direction upon the O.p. to execute the Deed of Conveyance by hand over the possession of the schedule flats by completing the pending work with a further prayer for directing the O.p. to make payment for compensation to the tune of Rs.2,00,000/- for causing physical and mental harassment and Rs.25,000/- for litigation cost.
DEFENCE CASE:
Despite of receiving notice O.p. did not turn up.
Evidence on record
The complainant filed evidence on affidavit and written notes of argument which are nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.
Argument highlighted by the ld. Lawyers of the parties
Complainant has filed separate written notes of argument. As per BNA., evidence on affidavit and written notes of argument shall have to be taken into consideration for disposal of the case.
Heard argument of the complainant side at length. In course of argument ld. Lawyer for the complainant has given emphasis on evidence and documents produced by them.
From the discussion hereinabove, we find the following issues/points for consideration.
Issues/points for consideration
- Whether the complainant is the consumer?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief?
DECISION WITH REASONS
All the issues are taken up together for convenience.
Instant case has been filed by the complainant against the O.p. for issue direction upon the O.p. to execute Deed of Conveyance by handing over possession. As per statement of the complainant she alongwith her other family members intend to purchase three different flats in the premises mentioned in the complaint and for which the total consideration was fixed at Rs.35,00,000/- and on the date of Agreement for Sale she paid Rs.5,00,000/- through cheque as part consideration to the O.p. Such fact has also been mentioned in the Agreement for Sale. According to the complainant, she further paid Rs.2,00,000/- to the O.p. on different dates by way of cash for the said flats and the O.p. has also issued money receipts for such amount that have been paid by the complainant and have been annexed with the complaint. As far as the instant case is concerned, though the O.p. has already received Rs.7,00,000/- from the complainant, she has not handed over possession of those three flats nor even executed the Deed of Conveyance in favour of the complainant by the O.p. and her family members. The complainant has submitted the photocopy of Agreement for Sale dated 04/12/2021.
At the time of going through the complaint and scanning the documents submitted by the complainant at page no.3 of the Agreement for Sale dated 04/12/2021 this Commission finds that it has been written as “The purchaser hereby agreed to purchase the same as her family consisting of her husband, daughter, mother and her family member and hereby paid an advancd of Rs.5,00,000/- by cheque as and by way of earnest money and the balance amount of Rs.30,00,000/- shall be paid by the purchaser within 2 years”. But in utter surprise of this Commission, on the same page in the very next paragraph it has been written that the remaining balance amount i.e. Rs.30,00,000/- shall have to be paid by the purchaser within one year and it is striking that the term “One” in hand written and that too it has been written in words whereas in the previous paragraph it is typed as numerical 2 which constrains to hold this Commission that the portion “one year” in Agreement for Sale being hand written is not the fact to be taken into consideration. Accordingly, there cannot be any doubt to hold that the portion 2 years has not yet been passed which has prompted the complainant to institute the present complainant. Accordingly, this Commission holds that the petition of complaint is premature and hence does not appear to be entertainable. Moreso, we all know that “time is the essence of contract” but in the present Agreement for Sale whereas has been submitted by the complainant no specific time limit that has been mentioned. This Commission thinks that only to attract the cause of action the complainant has manipulated the time of one year (hand writing) for main the payment of rest of the consideration amount though in the previous paragraph it has been typed as 2 years. And by such manipulation the instant case has been filed on 03/03/2023, though if the time for payment of entire amount would be of 2 years then the time limit will exhaust on 04/12/2023. So, only after 04/12/2023, the cause of action would have been arisen. This Commission has no other alternative but to dismiss the instant complaint case on the ground of that no cause of action had been arisen on 03/03/2023 when the instant case had been filed and for which this complaint case seems to be pre-mature in nature.
All the issues are thus disposed of.
Hence,
O R D E R E D
That the Complaint case No.55 of 2023 be and the same is dismissed ex-parte. No order is passed as to cost.
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 The word file is drafted and corrected by me.
(Minakshi Chakraborty)
Member
D.C.D.R.C., Howrah