Date of Filing             :    24 December, 2018.

Date of Judgement    :    09 April, 2024.

Mr.  Dhiraj Kumar Dey,  Hon’ble Member.

            This case arises when Sri Naba Kumar Das, hereinafter called the Complainant, filed a complaint under Section 12 of the Consumer Protection Act, 1986  (the Act), against (1) Smt. Mithu Basu, (2) Smt. Kaberi Ghosh and (3) M/s. Treekal Construction Co. represented by its Proprietor Sri Netai Tarafdar, hereinafter called the Opposite Parties or OPs, alleging deficiency in service occurred from the part of the OPs arising out of non-registration of a 126 sq ft shop room and for not giving its possession despite receiving full consideration by the OPs.

            The material facts arising out of the statement of complaint petition and the annexed documents annexed with it are, if brief, that the complainant had booked one shop room of area 126 sq. ft. including super built up area on the ground floor at the premises situated at 30, Kashi Mondal Lane, P. O. – Belur Math, P. S.–Bally, Howrah–711 202, for a total consideration of ₹1,50,000/- on the basis of an oral agreement between the OP and himself.  Complainant stated that he had paid the total consideration out of good faith expecting that a written agreement would be executed, but that had never been happened, only a copy of unsigned agreement was handed over to him.  He stated that the shop room was supposed to be handed over to him within one year from date of first payment, i.e. from 06/10/2010, but that was not done by the OP.  Subsequently, after full payment the OP handed over a Possession Letter on 03/04/2014 but actual possession has not been given to him.  It is alleged that the OP–3 kept avoiding to handing over actual possession of the said shop room on one pretext or the other.  Ultimately on 30/07/2018 he sent a letter through his Ld. Advocate demanding registration and possession of the said shop room or, alternatively, refund of ₹1,50,000/-  with 18% interest thereon.  This letter also brought no result for which he filed this instant complaint praying to direct the OP: (i) for registration and possession of the shop room or refund ₹1,50,000/- with interest @18% p.a., (ii) for payment of ₹2,00,000/- as compensation for unnecessary harassment, mental agony and anxiety and any other relief or reliefs.

            Complainant filed copies of (i) four money receipts issued by the OP – 3 bearing No. 21/10, dated 06/10/2010, No. 32/10, dated 27/10/2010, No. NIL, dated 08/12/2010 and No. 02/11, dated 04/03/2011 totalling ₹90,000/-  (ii) undated possession letter issued by the OP - 3, (iii) Undated sketch of the proposed shop room, (iv) Advocate’s letter dated 13/07/2018 issued to all the OPs  and (iv) an undated and unsigned agreement for sale as annexure to the complaint petition.

            Notices were served upon the OPs, after admission, to appear and contest the case by filing their written version.  OP – 3 did not appear within the stipulated time for which the case proceeded ex parte against OP – 3.  However, OP – 3 appeared after a long gap of 3 years and filed written version which was rejected being not accepted. Complainant took almost five years to take steps upon OP Nos. – 1 & 2.  OP Nos. – 1 & 2 did not appear and filed their written version and thereby the case proceeded ex parte against OP Nos. – 1 & 2 also.  Then the complainant filed the Evidence on Affidavit.  Ultimately argument was heard in details and the complainant filed  Brief Notes on Argument. We have now come to the position to deliver the Final Order in this case.  We have to decide whether the OPs are deficient in rendering proper service to the complainant for which the complainant is entitled to get relief as prayed for.

DECISION WITH REASONS

            The brief facts of this case as emerged from the complaint and the annexed documents are that the complainant booked a shop room of 126 sq. ft. in the ground floor of the multi-storied building to be constructed by M/s. Treekal Construction Co.,, the OP – 3 as stated herein above at the premises at 30, Kashi Mondal Lane,  P. O. – Belur Math, P. S. – Bally, Howrah – 711 202.  The owner of this premises are the OP Nos. – 2 & 3 of this case.  Complainant stated that he booked a shop room through a verbal contract and it was decided that the OP – 3 would provide him the written sale agreement, but that has been never happened.  Rather, the OP – 3 supplied him an unsigned and undated sale agreement copy of which is annexed with the complaint petition.  From this copy it is found that proposed shop room which the complainant had intended to purchase was at the ground floor of area 80 sq. ft. including 15% super built up area, but the complainant alleged that he was going to purchase a 126 sq ft shop room at the ground floor.  It was written in this copy of agreement that the total consideration for the 80 sq ft shop room was settled at ₹1,12,000/-.  The complainant failed to explain why he was alleging that he intended to purchase a 126 sq. ft. shop room including super built up area for a total consideration of ₹1,50,000/-.  However, an unsigned and undated sketch of the proposed shop room prepared by one LBS in which it is written that the proposed shop room would be 126 sq ft including super built up area.  The complainant annexed an undated possession letter written on a ₹10/- Non Judicial Stamp Paper supposedly issued by the OP – 3 stating that they were handing over the shop room.  In this letter it was purpotedly written that the purchaser/complainant had paid a sum of ₹1,50,000/-. However, in this possession letter area of the shop room has not been mentioned.

            Moreover, the complainant has stated that he has paid a total consideration of ₹1,50,000/- for the shop room.  But he has annexed four Money Receipts totalling ₹90,000/- on different dates from 06/10/2010 to 04/03/2011 and these amounts have been given to the OP – 3 in cash.  Complainant alleged that it was settled that the shop room was supposed to be handed over to him within one year from the date of first payment.  He paid ₹5,000/- on 06/10/2010, a money receipt was issued by the OP-3 on that date bearing No. 21/10, dated 06/10/2010, so, according to his statement the shop room was supposed to be handed over to him within 06/10/2011.  Why he had not taken any step after realising that the OPs were unable to hand over the shop room to him within the stipulated time limit is not clear.  He stated that after repeated requests the OP – 3 handed over the above mentioned possession letter to him on 03/04/2014 which cannot be justified.  Even after receiving the possession letter which stated that physical possession of the shop room was being handed over, then why he had taken a long four years to send letter to the OPs 13/07/2018 claiming physical possession cannot be apprehended as justifiable by us.  When he realised that despite receiving the possession letter he had not actually possessed the shop room he should have to take appropriate steps to receive the actual possession of the said shop room.

            In their written version the OP – 3 denied all the allegations brought forward by the complainant in the complaint petition.  They said that they had not taken any money from the complainant nor had they given any verbal assurance to sale a shop room to the complainant.  Despite these statements they failed to establish their stand on strong grounds to avert the complaint.  As the written version of the OP-3 was rejected being not accepted we give no importance to these statements.

            In the end we can freely say that there is an apparent evidence that the OP-3 has taken money issuing four money receipts wherein it were mentioned for “Ground Fl Back Side Shop” and had issued an undated possession letter for handing over a non-specific ground floor shop room to the complainant.  But these do not affirm the complainant’s claim as prayed for.  He has prayed, according the prayer portion of the complaint petition, for:

            “1)       An order directing the opposite party for registration and possession of the one shop room at ground floor measuring 126 sq. ft. at 30, Kashi Mondal Lane, P.O. – Belurmath, P.S. – Bally, District – Howrah, PIN – 7112 02 and alternatively, refund of consideration money to the tune of Rs.1,50,000/- (Rupees One Lacs Fifty Thousand Only) with interest @18% per annum.

             2)        a direction may be given to the opposite party to pay a sum of Rs.2,00,000/- (Rupees Two Lakh Only) for unnecessary harassment and also for mental agony and anxiety of the complainant.

             3)        any other relief or reliefs.”

            This prayer portion states that the complainant prayed for these reliefs from “the opposite party”, but he has mentioned three names as the opposite parties in the Cause Title.  Here, according to the annexed documents, he has paid some consideration to the OP-3 for “Ground floor back side Shop” and the OP-3 issued a possession letter.  So, any deficiency caused by the OP-3 should be compensated by the OP-3 itself and not the other OPs as they are the mere owners of the premises as stated in the complaint.  Moreover, as there is no written agreement for purchasing the shop room, so we cannot ascertain what were the specific terms and conditions in constructing and handing over the shop in question, especially when any of the OPs did not participate in the case.  It is a fact that a verbal contract is a valid contract.  But that does not mean that claim from only one side would be justified.

            In conclusion, we are of the considered view that the complainant failed to establish his complaint in a specific manner.  He must have justified claim arising out of the deficiency from the OP-3, but that should be presented before this Forum/Commission more precisely.  So, we think this instant complaint should be dismissed with a direction to the complainant to approach before the appropriate Court of Law after curing all defects.

            Hence, it is

ORDERED

            That the complaint Case No. CC/444/2018 be and the same is dismissed ex parte against the Opposite Parties and with no cost.

            The complainant is given liberty to file this complaint afresh after curing all the defects before the appropriate Forum/Court of law.

            Let a copy of this order be issued, on demand, to the parties of both sides free of cost. 

Dictated and corrected by me

            Member.