FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay    President.

Brief fact of this case:-  This case has been filed U/s. 12 of the Consumer Protection Act   1986 by the complainant stating that the OP entered into an agreement for sale for one 608sq.ft of flat in one Titli Apartment being flat A on the first floor on a building constructed on a piece and parcel of land measuring more or less 5 Kattahas at Mouza Khordabahera J.L no. 6   Dag no.147 and 148 being premises no 1 Harisava Road   Nabagram Gram Pandhcayet police station Uttarpara   with the complainant on 20^th August   2013 and pursuant to the said agreement for sale OP agreed to transfer the above mentioned property   more fully and vividly described in the schedule of property in the said agreement   in favour of the petitioner against a total consideration money of Rs.15  23  500/- as the then highest market value of the same and the OP received the entire sum on different date from the date of execution of the said agreement for sale from the petitioner and on 2^nd Day of February 2016 a deed of conveyance was executed by and between the parties before the ADSR Uttarpara   which was duly entered in Book no.1 volume no 0621-2016 pages 6569 to 6597 being no.062100268 for the year 2016  and in terms of the said deed as mentioned in paragraph here in before OP were duty bound to provide   especially in accordance with the third schedule appended in the deed the facility of elevator   surprisingly despite making payment him have failed and neglected to provide the services of the elevator (lift).  More over the promise of an elevator by the OP to the petitioner has prompted him to purchase the flat in third floor and now since the OP failed and neglected to act in accordance with the 6^thpara of the third schedule it can be reasonably presumed that he has practiced fraud and such is an unfair trade practice and the OP provide the flat owners in the common place electricity connection and lights which are yet to be executed and the OP were to make arrangements for installing an electric transformer from the statutory authorities in accordance with the existing procedure and laws   but the OPs have also failed and neglected to carry out such work which according to the client is intentional and such inaction is for avoiding expenses which has already been made out by the purchasers.

Ops are legally bound to provide the petitioner with such facilities which were agreed upon and has gone in the deed of conveyance executed on 2^nd February 2016 by and between the parties before the ADSR Uttarpara   which was duly entered in Book no.1 volume no 0621-2016   pages 6569 to 6597 being no. 062100268 for the year of  2016   and also such other facilities which are mandated in various statues and usage and practice  and the OPs are duty bound to make necessary arrangements for installing an electric Transformation from the statutory authorities in accordance with the ;extant procedure and laws for taking care of the sudden increase of electric load in the locality and the petitioner sent notice to the OP on 28^th February   2018 and requested to start the services of the elevator (lift) and to take provide electric connection at all common places and further take necessary steps and by making proper arrangements for installing an electric transformer from the Statutory Authorities in accordance with the existing procedure  and the OP have also failed and neglected to act in compliance with the agreement for sale and has thus violated the promises made out to the petitioner prior to the execution of the deed of sale.

Complainant filed the complaint petition praying direction upon the opposite parties to start the services of the elevator (lift) and to take provide electric connection at all common places and further take necessary steps and by making proper arrangements for installing an electric transformer from the statutory authorities in accordance with the extant procedure and to pay a sum of Rs. 20  000/- for litigation cost and to pay sum of Rs.20  000/- for compensation.

Defense Case:-The opposite party Nos.1 to 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the OPs entered into an agreement for sale of one flat measuring about 608 sq. ft. in Titli Apartment being flat A on the 1^st floor on the multi-storied building on a piece and parcel of land measuring more or less 5 cottahs at mouza-Khordabahera   J.L no.6 and Dag no.147 & 148   1 no. Harisabha Road under Nabagram Gram Panchayet   P.S-Uttarpara   Dist-Hooghly on 20-08-2013 and consideration money of the above mentioned flat was settled between the parties of Rs. 15  23  500/- and by receiving the entire consideration money the OP no.1 and 2 have executed Deeds of Conveyance in favour of the petitioner being no.062100268 for the year 2016 but till today the ops are entitled to get Rs. 1  50  000/- from the petitioner out of total consideration money. On the good faith these ops executed the sale deed in favour of petitioner in the year 2015 and on the date of execution the petitioner promised the rest amount of Rs. 1  50  000/- will pay later on as he was unable to collect the said money and in the agreement there is a terms for providing elevator and that the OPs are ready and willing to provide the said facility and it is true that these OP no.1 and 2   bound to install an electric transformer from the statutory authority.  But it is denied that OPs have failed and neglected to carry out such work which according to the petitioners are intentional and such in action is for avoiding expenses which has already been made out by the purchasers.

These OPs for the purpose of performing their part and to full fill the terms i.e. service of elevator and for installing an electric transformer have deposited requisite fees/amount to the company and statutory authority.  The OP no.3 the land owner has been creating disturbances and obstructing for installation of transformer and raised objection before the statutory authority.  If   pass an order   then in that case these OPs will install electric transformer and provide service of elevator and after receiving notice dated 28.02.2018   these OPs informed that they have already taken step for providing elevator service and deposited proper fees for installing electric transformer before the competent authority but due to obstruction created by the land owner i.e. OP o.3   they are unable to perform their part.  Due to obstruction the competent authority avoided to issue quotation.  The OP no.3 all on a sudden on 14.03.2017 through his advocate sent a notice along with a Xerox copy of deed of revocation of power of attorney being no.06500033 for the year 2017 and issued a public notice in a daily newspaper Ei Samay dated 19.03.2017.  These Ops for that filed a suit being title suit no. 166 of 2017 before the Civil Judge (Jr Division)   1^st Court   Serampore for Declaration   Ejectment of  Trespassers and injunction against the OP no.3   in respect of schedule mentioned property of the plaint i.e. the disputed flat.  Learned Civil judge (Jr. Division) 1^st court   Serampore on 19.04.2017 was pleased to direct the defendant i.e. OP no.3 for restraining from disturbing the plaintiffs   management and disposal of the property.

Though there is an order of the Civil Court but the OP no.3 intentionally avoided to receive the summons and creating various disturbance towards providing elevator service and installing electric transformer.  After   order of civil Court these OPs have executed and registered some Deeds of conveyance. So in the aforesaid premises complainant  s complaint under section 12 of the consumer Protection Act is liable to be rejected.

The opposite party No. 3 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that this OP was the absolute owner of 5 cottas of property appertaining to settlement plot no.57 corresponding L.R Plot no.-147 & 148 under L.R Khatian no.639/4 in Mouza-Khordabahera   sl. No.6 under P.S Uttarpara   District-Hooghly   within the limit of Nabagram Gram Panchayet and this OP intended to make construction of  a multistoried building over the above mentioned property with the help of developer.  The OP no.1&2 expressed before this OP that they are reputed and experienced developer and they are ready & agreed to act as developer  in order to develop the property as mentioned above. The terms & conditions of such development were settled between the OPs and accordingly an agreement for sale was executed in between this OP and OP no. 1 & 2    on 12-6-2012   and the agreement was duly registered at the office of A.D.S.R   Sreerampur and as per terms & conditions of the developer  s agreement dated 6.6.12 it was settled that the OP no.1&2 would make construction of the said building at their own cost and responsibilities with all necessary amenities.  The Op no.1&2 undertook to provide electricity facility   water courses   pipelines   septic tank   and sewerage lines to the intending purchasers of units of the proposed newly constructed building and it was settled between the owner & developer that the developer shall pay sum of Rs.15  00  000/- to this OP alongwith a complete and finished flat on the 1^st floor measuring 800 sq. ft. covered area on the south-East corner and another flat measure covered area of 700 sq.ft on the south-west corner of the same floor.  It was also settled that the sale price of other units of the building would be received by the developer i.e. OP no.1&2 exclusively.  Subsequently through a memorandum of understanding dated 24.8.2016 one shop room on the ground floor was also allotted to this OP and the OP no.1&2 delivered the flats to this OP but the measurement of the flat is 100 sq.ft less than the contractual measurement.  The OP no.1&2 failed to pay the entire amount as agreed to this OP.  The OP no.1&2 also unable to complete the project within the contractual period of 36 months from the date of sanction of plan and the developer has failed to install the transformer through it is their sole liability.  They neither install the elevator.  On contrary they are supplying  electric connection to different unit holders through the original electric meter stands in the name of the grandmother of this OP.  The gauge of the electric main wire is less than i.e.2.5 mm in place of 5 mm and after expiry of the original developer  s agreement & for non-compliance of the terms of the agreement this OP has revoked the power of attorney & it was duly informed to the OP no.1&2.  The OP has no knowledge about the initiation of any civil suit by the OP no.1&2 and OP no.1&2 have failed to perform his duties & liabilities.  There are deficiencies on their part.  They received the consideration amount from the petitioner but they failed to perform their duties.  This opposite was always ready to cooperate the OP no.1&2 but they were reluctant.  The OP is also a victim of the OP no.1&2 and as this OP has had no deficiency of service or no unfair trade practice so the petition is liable to be dismissed.

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 parties.

           The answering opposite party 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 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 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 and ops are resident of Nabagram   P.S. 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 20 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 11 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 24A of the Consumer Protection Act   1986 is very important and according to the provision of Section 24A 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) (d) of the Consumer Protection Act   1986 it appears that this case is maintainable and according to the provision of Section 2 (1) (d) of the Consumer Protection Act   1986. 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 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 on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute: 

1. It is admitted fact that the complainant intended to purchase a flat at the Titli Apartment situated at premises no. 1   Harisava   Nabagram   P.S. Uttarpara   Dist. Hooghly.
2. It is also admitted fact that the said flat no. A was measuring about 608sq.ft. of the said Titli Apartment.
3. There is no controversy over the issue that the op developed and constructed the said apartment over the 5 cottahs of land situated at Mouza KhordaBahera at Dag no. 147 and 148 under Nabagram Panchayet   P.S. Uttarpara.
4. There is no dispute over the issue that the complainant entered into an agreement for sale with the op.
5. It is admitted fact that the op agreed to transfer the said flat to the complainant/ petitioner.
6. It is also admitted fact that the total consideration money of the said flat was of Rs. 15  23  500/- as per the then market value.
7. There is no controversy over the issue that the said agreement for sale was executed and registered and on the basis of the said agreement for sale on 2.2.2016 a deed of conveyance was executed and registered at ADSR Uttarpara.
8. There is no dispute over the issue that the said deed of conveyance entered into Book no.1 volume no 0621-2016 pages 6569 to 6597 being no.062100268 for the year 2016 .
9. It is admitted fact that the op also delivered possession of the schedule A flat to the complainant/ petitioner.
10. It is also admitted fact that the op is duty bound to provide the facility of lift   electricity at the common place and installation of electric transformer in the said apartment.
11. There is no controversy over the issue that the op has not yet installed the lift   provided electric connection and lights at the common place and also has not installed electric transformer although according to the terms of the agreement for sale and deed of conveyance op is duty bound to do so.
12. There is no dispute over the issue that the complainant/ petitioner has already paid Rs. 15  23  500/- to the op nos. 1 and 2 in respect of consideration amount for purchasing the flat no. b            .
13. It is admitted fact that op no. 3 is the land owner and this op no. 3 entrusted the op nos. 1 and 2 to construct the multistoried building on 5 cottahs of land situated at LR Plot no. 147 and 148 in Mouza KhordaBahera under Nabagram Panchayet   P.S. Uttarpara   Hooghly.
14. It is also admitted fact that one agreement for development of the said above noted property was executed and registered at the ADSR Office Serampore on 12.6.2012.
15. There is no controversy over the issue that this op no. 3 has also pointed out that the op nos. 1 and 2 have not yet installed lift   have not provided electric connection and light at common space and also have not installed electric transformer in the said apartment in compliance of terms and conditions of the development agreement.

Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

On the background of the above noted admitted facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant and op no. 3 adopted the plea that the op nos. 1 and 2 inspite of receiving consideration money have not yet provided the facilities such as installation of lift in the said apartment   have not provided electric connection and light at the common space and also have not installed electric transformer in the said Titli Apartment and all these factors are clearly reflecting that the op nos. 1 and 2 have adopted unfair trade practice and also committed deficiency of service. But on the other hand the op nos. 1 and 2 adopted the defense alibi that the complainant has not yet paid Rs. 1  50  000/- to the op nos. 1 and 2 out of the total consideration money and so the op nos. 1 and 2 due to financial crisis failed to provide the above noted facilities.

           For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords this District Commission after going through the evidence on record finds that the op nos. 1 and 2 have not yet installed the lift/ elevator   have not provided electric connection and light at common space and also have not installed electric transformer in the said Titli Apartment which indicates that there is deficiency of service and negligence on the part of the op nos. 1 and 2 but from the evidence on record this District Commission is not getting any proof in the matter of committing unfair trade practice by op nos. 1 and 2.

           A cumulative consideration of the above noted discussion goes to show that the complainant has proved her case in respect of all the points of consideration adopted in this case and for that reason the complainant is entitled to get relief in this case in respect of all the points of consideration.

In the result it is accordingly

ordered

that the complaint case being no. 90 of 2018 be and the same is allowed on contest but in part.

           It is held that the complainant is entitled to get an order of direction upon the ops in the matter of installing elevator (lift) and to provide electric connection at all common spaces and also for installing electric transformer in the Titli Apartment situated at Nabagram   P.S. Uttarpara   Dist. Hooghly and also entitled to get compensation of Rs. 10  000/- and litigation cost of Rs. 10  000/- from op nos. 1 and 2.

Opposite party nos. 1 and 2 are directed to carry out the above noted direction within 45 days and to pay Rs. 20  000/- to the complainant 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 party nos. 1 and 2 are also directed to pay and/ or deposit Rs. 10  000/- 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.