Presented by: -

                   Shri Debasish Bandyopadhyay, President.

Complaint Case No. 134/2017

This Complaint Case has been filed by the complainant against the OPs for giving direction to the OPs to deliver possession of the Suit Flat and to execute and register a deed of conveyance in favour of the complainant in respect of the Suit Flat within a specified time and also for granting awarding damage of Rs. 5,00,000/- and litigation cost of Rs. 30,000/-.

The case of the complainant – The case of the complainant  which is deciphered from the complaint petition  in bird’s eye view  is that the complainant is a bonafide consumer  under the OPs and OP  Nos. 1 to 6 are the owners  of the suit building  which is situated  at Premises No. 28, Bholanath  Kabiraj Lane, P.S. Bantra, Dist. Howrah and the Suit Flat measuring about 300 sq. ft. situated  at the First Floor of the said Holding.  It is the case of the complainant that OP Nos. 1 to 6  for developing  the suit holding engaged  OP Nos. 7 & 8 for developing  the said holding.   It is alleged that the complainant decided to purchase the Suit Flat at sum of Rs. 2,60,000/- and OP No. 7 as the Power of Attorney Holder of OP Nos. 1 to 6 out of his free will volition and voluntarily has entered into a Memorandum  of Agreement  for sale with the complainant on 28.03.2013 which is notarized  before the Notary Public on 30.03.2013 for selling  the Suit Flat to the complainant for a total consideration money of Rs. 2,60,000/-.   As per case of the complainant the OP No. 7 has taken Rs. 2,10,000/-  as part payment  at the time of execution of the said Memorandum of Agreement for sale dtd. 28.03.2013.  It is submitted that OP No. 7 has categorically  agreed to give possession of the Suit Flat within a period of 8 (eight) months from the  date of enter into  the said agreement  for sale dtd. 28.03.2013 but unfortunately after the lapse of 8 (eight) months and after taking the entire consideration money the OP No. 7 did not hand over the Suit Flat to the complainant and forced the complainant to enter into another agreement for sale and after compelling circumstances  the complainant was compelled to enter into another agreement for sale dtd. 05.06.2025 which is notarized  before the Notary Public  at Howrah on 09.06.2015 with the OP No. 7 for selling the Suit Flat at consideration money  of Rs. 3,15,000/- and also agreed to hand over possession of the Suit Flat within a period of 1 (one) month  from the date of enter into the said agreement  for sale on 05.06.2015.  It has also been mentioned that the complainant has already paid the entire consideration amount of Rs. 3,15,000/-  to the OP Nos. 7 & 8  and OP Nos. 7 & 8 duly acknowledged  the same on various dates.  It is further alleged by the complainant that the OPs have agreed, accepted and admitted their contractual obligation  arising  out of the said agreement for sale but the OPs have not yet  handed over the possession of the Suit Flat within the stipulated  time dtd. 05.07.2015.  According to the case of the complainant the cloud has cast  upon the right, title, interest of the complainant  when after completion of the stipulated period of one month.  The OPs denied to deliver possession  of the Suit Flat  and the OPs started to neglect the complainant  on various pretext.  It is also stated  by the complainant side  that the complainant  approached to the OPs for delivery of possession  of the Suit Flat and to register  the deed of conveyance in respect of the Suit Flat to the OP Nos. 7 & 8  with active assistance of other OPs refused to deliver possession  and execute and register  the deed of sale and other claimed more money from the complainant  in order to get possession of the Suit Flat  and for execution and registration of the deed of conveyance .  It is also alleged that finally on 01.03.2017 the OPs declared that they would sale out the Suit Flat  to 3^rd Party / outsider  at a higher price .  It is also asserted  by the complainant that thereafter  complainant  issued notice through Ld. Lawyer Abhisek Adak, Advocate, requesting  the OPs to execute and register of sale of the Suit Flat and to deliver possession of the same within a period of 7 days and the OP Nos. 7 & 8 received the notice but other OPs  refused to take the notice.  It is also submitted by the complainant that  he has completed  his part of contract  by paying entire amount of consideration as agreed between the parties in the matter of selling the Suit Flat but the OPs finally refused to and denied to execute  and register the deed of conveyance in favour of the complainant and to deliver possession to the complainant.  For all these reasons  the complainant has instituted  this case as per prayer of the complaint petition.

Defence Case -  After receiving  notice the OP Nos. 4 to 6 appeared in this case and filed W/V where the OP Nos. 4 to 6 have denied  all material allegations  leveled against them in the complaint petition .  The specific case of the OP Nos. 4 to 6 which is reflected from the W/V in a nutshell is that the OP Nos. 1 to 6 executed  a Development Agreement  with OP No. 7 which was notarized  and on the same day the OP Nos. 1 to 6 also executed  a Power of Attorney  in favour of OP No. 7 and thereafter the OP No. 7 could not complete the building and as such the OP No. 7 inducted  / adopted Rajiv Das (OP No. 8) as a partner Developer.  As per case of the OP Nos. 4 to 6 it was agreed between the owners and developers that prior to demolish of the old structure,  the developer shall shift the owners to any premises  and shall also bear the rent  of the said rented premises and initially the developer has paid the monthly  rent but after few months the developers  ( OP Nos. 7 to 8) did not pay  the rent and for last 2 years  before taking over possession of the flat in this suit building , the OP Nos. 4 to 6 had to pay rent in respect of the rented premises from their own pockets.   It is alleged that both the developer failed to complete the building and as such the OP Nos. 4 to 6 requested them to deliver possession and thereafter allocated area but after long period the developer handed over the flat on the 2^nd Floor  of the building measuring about 525 sq. ft. to OP Nos. 4 to 6 and 526 sq. ft. flat to the other co-owners.  It is submitted that the developers ( OP Nos. 7 & 8) did not hand over any documents such as  sanction plan, mutation certificate etc. and the developers (OP Nos. 7 & 8) have violated the terms & conditions of the development agreement and subsequently one “Anumatipatra” (consent letter) was executed in between  owners  of the property and OP Nos. 7 & 8  from which  it can be shown that Dilip Sonkar, Arun Srivastav & Shila Rajak were the intending purchasers but in the said document  the complainant’s name was not included.  It is pointed out that OP Nos. 4 to 6 had also reserved their rights to file separate suit against Developer Nos. 7 & 8  and the conducted of the complainant is mischievous  and the complainant has not come before  this District Forum in clean hand and so he is  not entitled to get any relief as prayed for .  It has further been stated that the complainant has miserably failed to establish  his case of deficiency of service against OP Nos. 4 to 6 and the averments described in the petition of complaint  are totally false   have no merit  at all.  For all these reasons the OP Nos. 4 to 6 have prayed before this District Commission for dismissing this complaint case with a heavy cost.

Points of consideration

On the basis of the pleadings of the parties this District Commission for the interest  of proper and complete adjudication of this case and also for arriving at just and proper decision in this case is going to frame  the following points of consideration :-

1. Is this suit maintainable in its present form and in the eye of law?
2. Whether this District Forum / Commission has jurisdiction to try this case or not?
3. Is the complainant a consumer under the OPs or not?
4. Has the complainant cause of action for filing this case or not?
5. Whether the complainant is entitled to get relief as per prayer of the complaint petition or not?
6. To what other relief or reliefs are the complainants entitled to get in this compliant case?

Evidence on record

The complainant has filed evidence on affidavit  in support of her point of contention of the OP Nos. 4 to 6 also have filed interrogatories and against the said interrogatories the complainant side has given reply.

In order to disprove the case of the complainant the OP Nos. 4 to 6 have filed evidence on affidavit and the complainant has filed interrogatories against the said evidence on affidavit and OP Nos. 4 to 6 also have given reply against the said interrogatories.

But fact remains that in this case the OP Nos. 1 to 3 & 7 to 8 have neither filed evidence on affidavit nor filed any W/V.

Argument highlighted by Ld.  Advocates of both sides

In course of argument the complainant side has filed Brief Notes on Argument and also highlighted their verbal submission and in support of the case of the complainant,  Ld. Lawyer  referred the case laws which are reported in (2011) 10 SCC 683, AIR 2018 SC 5351, AIR 2021 SC 1422.

On the other hand contesting OP Nos. 4 to 6 have neither filed any Brief Notes on Argument nor highlighted any verbal submission before this District Commission in connection with this case.  At the same time the OP Nos. 1, 2, 3, 7 & 8  also have not filed any Brief Notes on Argument and they also have not appeared  before this District  Forum  / Commission for highlighting their argument.

Decision with reasons

The first 4 (four) points of consideration are related with the questions of maintainability, jurisdiction issue, cause of action point and also over the issue whether the complainant is a consumer under the OPs or not?  The questions involved in these 4 (four) issues are interlinked and / or interconnected with one another.  For that reason and also for the interest on convenience of discussion all the above noted 4 (four) points of consideration are clubbed together and taken up for discussion jointly.

Over the issue of maintainability  and regarding the question as to whether complainant is a consumer under the OPs  or not, this District Commission after going through the material of this case record as well as after making scrutiny of the evidence on record finds that the complainant has paid  the entire consideration money of Rs. 3,15,000/-  to the OP Nos. 7 & 8 and OP Nos. 7  & 8 have also accepted the said money but the OP Nos. 7 & 8 have not delivered possession  of the suit flat  and also have not executed and registered  deed of conveyance   in respect of the suit flat in favour of the complainant as the OPs have received the entire consideration money from the complainant in respect of the suit flat. It is crystal clear  that the complainant  is a consumer under the OPs  and this case is maintainable  in the eye of law.

As  the OPs have not handed over possession of the suit flat and also have not executed and registered the deed of conveyance in favour of the complainant  in spite of expiry of the stipulated period of time  and in spite of highlighting grievances by the complainant   to the OPs, this District Commission is of the view that the complainant has the cause of action for filing this case and as the complainant  has not  received the possession  of the suit flat and as the OPs have not executed and registered the deed of conveyance  in respect of the suit flat in favour of the complainant, the cause of action has been continued.  Thus,  the points of consideration framed in this case in connection with cause of action point is also decided in favour of the complainant side.

Regarding  this jurisdiction issue this District Commission after going through  the material of this case record finds that the complainant is a resident of Bantra area  and the OP Nos. 1 to 6 are also residents of Bantra area and OP Nos. 7 & 8 are also carrying  on business  within the jurisdiction  of Howrah.  These factors  are clearly reflecting that this District Commission / Forum has its territorial jurisdiction .  Moreover, the claim of the complainant in this case  is below  Rs. 20,00,000/- and considering these aspects  this District Commission is also of the view that this District Commission / Forum has its pecuniary jurisdiction to try this case.

A cumulative consideration  of the above noted  discussion goes to show  that the points of consideration Nos. 1 to 4  which have been  framed  in this case relating  to the point of maintainability , cause of action, jurisdiction matter and in respect of the question whether  the complainant is a consumer under the OPs or not are decided  in favour of the complainant side.

In connection with the points of consideration Nos. 4 & 5 this District Commission after making scrutiny of the evidence on record finds  that the OP Nos. 1, 2, 3, 7 & 8 have not filed any evidence on affidavit  in this case and also have not filed any questionnaire against the  evidence given by the complainant.  In this position, this District Commission  on close scrutiny of the evidence given by the complainant side finds that the complainant in his evidence on affidavit  has also categorically described all the factors in the evidence  which have been described in the petition  on complaint.  In other wards  it can be said that the evidence on affidavit  which has been filed by the complainant is nothing but the replica  of the petition of complaint which has been filed by the complainant side.

As the OP Nos. 1, 2, 3, 7 & 8  have neither filed any evidence on affidavit nor filed any questionnaire, the evidence given by the complainant in this case  remains unchallenged and / or uncontroverted.  Moreover, from the  questionnaire  and evidence which have been given by OP Nos. 4 to 6 it is revealed  that in the said evidence the case of the complainant has neither be shackened  nor been controverted.

On close  compare  of the evidence given by the complainant  and OP Nos. 4 to 6 this District Commission finds that the evidence which has been given by complainant is also supported by documents.   Moreover, the District Commission  after close scanning of the W/V  submitted by OP Nos. 4 to 6  finds that the OP Nos. 4 to 6  have not denied  the case of the complainant side.

On the background of the above noted  position this District Commission finds that the complainant has proved  her case in respect of points of consideration Nos. 4 & 5  which have been adopted by this District Commission  in this case.  So, these two points of considerations are also decided in favour of the complainant.

After going through the decisions / judgments  referred by the complainant side  this District Commission finds that the observation  of the Hon’ble Apex Court  are also supporting the case of complainant.

In the result , it is accordingly,

Ordered

That this Complaint Case being No. 134/2017 be and the same is allowed on contest but in part against the OPs.

It is held that the complainant is entitled to get a decree directing the OPs to deliver possession of the suit flat and to execute and  register  a proper  deed of conveyance in favour of the complainant in respect of the suit flat  within 2(two) months from the date of this judgment and also to pay compensation of Rs. 2,00,000/-.   The complainant is also entitled to get litigation cost  of Rs. 15,000/- from the OPs.  Otherwise the complainant is given liberty to execute this award as per law.

The parties of this case are entitled to get a free copy of this judgment  as early as possible

Let this judgment be uploaded  in the official website  of this District Commission immediately.

Dictated & corrected by me

President