FINAL ORDER/JUDGEMENT
Presented by:-
Shri Debasish Bandyopadhyay, President.
This complaint case has been filed by the complainant against the ops in the matter of passing direction upon the ops to complete the construction of the shop room which is mentioned in the schedule of the complaint petition and to execute and register the deed of conveyance in favour of the complainant and also for making payment and compensation and litigation cost.
Brief fact of this case:- the case of the complainant side in a nutshell is that the complainant is a consumer as per provisions of the Consumer Protection Act, 2019 as one agreement for sale dt. 12.7.2021 has been executed in between the complainant and ops in the matter of allotment and sale of the shop room which has been described in the schedule of the complaint petition which is situated at premises no. 10, Vivekananda Road, Post Office Nabagram, Dist. Hooghly Pin 712246. It is submitted that the complainant has already paid Rs. 1,00,000/- to the ops upon construction of 50% of the said shop room. It is alleged that as per terms and conditions of the said agreement for sale the said shop room no. 3 measuring about 150 sq.ft. situated on the ground floor of the said apartment. It is also pointed out that the complainant is paid further amount by way of handing over cheque bearing no. 447638 dt. 5.1.2022 of Punjab National Bank, Nabagram Branch. According to the case of the complainant side it has been specifically mentioned in the agreement for sale that op nos. 1 to 3 shall complete the construction and hand over possession of the said shop room within 6 months from the date of execution of the said agreement dt. 12.7.2021. But till the date of filing of this case the shop room has not yet been constructed although the complainant has paid a considerable amount of the consideration money. It is also alleged by the complainant side that the complainant thereafter on several occasions had come across with the ops and requested them to complete the construction of the said shop room but it has not yet been done. According to the case of the complainant side the ops are jointly and severally guilt of unfair trade practice and deficiency of service and as such the ops are required to be directed to complete the construction work and to execute and register the deed of conveyance otherwise the complainant shall suffer irreparable loss and injury. It is submitted that the cause of action of this case arose on 9.3.2022 when the complainant had given a written request to the ops for completion of the work of the said shop room.
In this case the op nos. 1 to 4 appeared in this case but as no W/V has been filed within stipulated period of time this District Commission has passed the order of ex parte hearing vide order no. 7 dt. 13.9.2022. The ops challenged said order before the Hon’ble State Commission, West Bengal and Hon’ble State Commission, West Bengal has been pleased to dispose of this revision petition no. RP/ 5/2023 on 17.2.2023 and has been pleased to affirm the order passed by this District Commission and Hon’ble State Commission has also been pleased to direct this District Commission for disposal of this case within 2 months from the date of passing order in the above noted revision case.
Inspite of having knowledge of the disposal of the above noted revision application by the Hon’ble State Commission the ops have not appeared and also have not contested this case although one W/V has been filed.
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:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- 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.
Argument highlighted by the ld. Lawyers of the parties
Complainant filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of complainant are to be taken into consideration for passing final order.
Argument as advanced by the agent of the complainant heard in full. In course of argument ld. Lawyer of complainant 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 Nabagram, 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. It is the settled principle of law that a consumer invoking the jurisdiction of the District Commission can seek such relief as he or she considers appropriate. This legal principle has been observed by Hon’ble Apex Court in the case of Experion Developers Pvt. Ltd. vs. Sushma Ashok Shiroor and it is reported in AIR2022SC1824.
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 the above noted two points of consideration nos. 4 and 5 and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the complainant and there is also necessity making scrutiny of the documents filed by the complainant of this case.
After going through the evidence on record this District Commission finds that the complainant by way of giving evidence on affidavit has proved his case which has been highlighted in the petition of complaint and the complainant in support of his case has also filed documents. In this regard it is important to note that the evidence given by the complainant side has not yet been challenged and/ or controverted by the ops as they have not contested this case finally. In view of this position it is crystal clear that the evidence given by the complainant which remains unchallenged and uncontroverted is trustworthy and there is nothing to disbelieve the said evidence. As the complainant had proved his case by way of giving satisfactory evidence this District Commission is also of the view that the points of consideration nos. 4 and 5 are also to be disposed of in favour of the complainant side.
In the light of the observation made above this District Commission is of the view that the complainant has proved his case in respect of all the points of consideration and so he is entitled to get relief in this case as per prayer of the complaint petition.
In the result it is accordingly
ordered
that the complaint case being no. 77 of 2022 be and the same is decided ex parte against all the ops.
It is held that the complainant is entitled to get an order directing the ops to complete the construction work of the shop room which has been mentioned in the schedule of the complaint petition and to execute and register the final deed of conveyance in favour of the complainant within 45 days from the date of passing of this order subject to payment of balance consideration money with one month. It is held that the complainant is also entitled to get compensation of Rs. 10,000/- for deficiency of service and Rs. 5000/- as litigation cost.
Opposite parties are directed to pay the above noted amount of Rs. 15,000/- within 45 days from the date of this order otherwise complainant is given liberty to execute this order as per law.
In the event of nonpayment/ non compliance of the above noted direction the opposite parties 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.
