Minakshi Chakraborty, Presiding Member.
Brief facts of the case of the complainants: At the very outset it shall be noted that the original complainant on his demise has been substituted by his six legal heirs vide order no. 19 dated 14.02.2020. This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the original complainant namely Pulak Mukherjee that the opposite parties entered into an agreement for sale on 13.8.2012 with the complainant for selling the schedule-mentioned shop room and a flat for a total consideration of Rs. 10,00,000/- and the complainant paid Rs. 9,50,000/- only as earnest money and the opposite parties have purchased 11 katha 03 chatak 35 sq.ft. landed property within mouza chandernagore, sheet no. 1 from different persons by virtue of regd. Sale deeds and the complainant was one of the sellers of such landed property and the complainant as a regd. Power of attorney holder and on personal capacity has sold out the said landed property to the opposite parties and the opposite parties for the purpose of constructing multistoried building (G+4) upon the land got the building plan sanctioned in the year 2013 and the construction of said building has almost been completed within the year 2016 and still some of the committed works have not been completed and it was settled between the parties that the opposite parties would register the schedule mentioned properties before the competent registering authority within a period of two years from the date of execution of the said agreement, but the opposite parties did not take any initiative to complete the said flat within the specified period as stated in the said agreement for sale.
The complainant also states that when the construction of the said flat and shop room was almost completed in the year 2016, the complainant as had very good relation with the opposite parties requested them verbally several times to register the schedule mentioned property in the name of the complainant but the opposite parties did not execute the deed of conveyance and then after the flat was almost completed, the opposite parties handed over one key of the entrance door of the said flat to the complainant but did not provide the duplicate key of the entrance door of the said flat as well as shop room but one day complainant found that the lock has been changed into a new lock. Thus, the complainant since long could not have access to the said flat and the opposite parties ultimately did never transfer the schedule mentioned properties into the name of complainant. Letters by Ld. Advocate of both the parties have not given any fruitful results.
Complainant filed the complaint petition praying direction upon the opposite parties to execute and register the deed of conveyance in respect of the schedule mentioned flat and shop room in favour of the complainant on fulfillment of the clauses of the said agreement for sale and for other reliefs.
Brief facts of the case by the opposite parties: It appears from order no. 9 dated 17.01.2019 the instant petition do run ex parte against O.P no-1.
The opposite party No. 2 contests the case by filing written version denying inter-alia all the material allegations leveled against him. This opposite party submits that as per agreement it was settled between the parties that the opposite parties would register the schedule properties within a period of two years from the date of execution of the agreement which was made on 13.8.2012 but the complainant waited for long five years for filing this complaint before the Forum and whether the complainant made the payment of rest amount of Rs. 50,000/- to the opposite party no. 1 is not known to the opposite party no. 2 and thus, the complaint case should be dismissed and opposite party no. 2 should be expunged from the proceeding.
Evidence:
The complainant has 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 party no. 2.
Op no. 2 files a petition to consider his written version as his evidence on affidavit vide order no. 22 dated 05.11.2020.
Ex parte runs against op no. 1 vide order no. 9 dt. 17.1.2019.
Ex parte runs against op no. 2 vide order no. 25 dt. 27.4.2021.
Complainant has filed written notes of argument. The evidence on affidavit and written notes of argument of complainant are taken into consideration for passing final order.
Argument advanced on behalf of the complainant heard at length.
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 as prayed for.
DECISIONS WITH REASONS
Issue No: 1
In the light of the discussion hereinabove and from the materials on record it transpires that the complainant is a Consumer as provided in Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986.
Issue No.2
Both the complainant and the opposite parties are resident and having the office of the O.P within the district of Hooghly. Considering the claim amount of complainant as per prayer of the petition of complainant it appears that the same does not exceed Rs.20,00,000/-. In view of above this Forum has territorial and pecuniary jurisdiction to entertain the instant proceeding.
Issue Nos: 3 & 4
Both these issues are taken up together for the sake of convenience.
Though much has been stated about transaction of financial matter of the original complainant with O.P no-1 keeping O.P no-2 in dark as stated by O.P no.-2 in his written version, yet the same does not find any support in the agreement for sale dated 30.08.2012 in asmuch as it appears at page 14 of the agreement for sale that out ofthe consideration money of Rs.10,00000/ an amount of Rs.9,50,000/ only was paid to the intending sellers and specific averment at page 15 therein runs as “ the intending sellers is hereby acknowledging the receipt of the said amount as the earnest money with respect to the purchase of one shop room …….of the said proposed new multistoried building measuring about 10 ft multiplied by 12 ft in total 120 sq.ft……and also one flat …..at the 1st floor measuring about 850 sq.ft ….” Thus, this cannot but be a frustrated endeavour on the part of O.P no.-2 to give a good-bye to the claim of the complainants.
It appears that O.P no.-2 has issued a letter dated 03.10.2017 through his Ld. advocate requesting the complainant to supply “photocopies of the so called agreement for sale along with money receipt…..”, but it is apparent on the face of the agreement for sale dated 13.08.2012 dulysigned by both the O.P nos- 1&2 at page 14 that the original complainant has paid Rs. 9,50,000/ only “to the party of the first part(the intending sellers herein)” which abundantly proves that the letter dated 03.10.17 of the Ld. Advocate of O.P no.-2 is of no use to say anything to the contrary with regard to it.
Obviously, the conclusion to be reached at this stage is that onus lies upon the O.P no.-2 to prove any receipt with regard to payment of Rs. 9,50,000/ because of his admission regarding payment of the aforesaid money in the agreement for sale.
In view of discussion hereinabove the irresistible conclusion this commission has reached that the complainants are entitled to get the relief with regard to one shop room at the ground floor of 120 sq.ft and one flat at the 1st floor measuring about 850 sq.ft.
Both the issues are thus disposed of.
Hence,
ordered
that the complaint case no. 225 of 2017 be and the same is decreed ex parte against opposite party numbers 1 & 2.
The opposite parties do execute and register the deed of conveyance in respect of the shop room and flat within 45 days from date on receipt of the residue amount of Rs. 50000/ paid by the complainants along with the required registration fee for the deed of conveyance in default complainants are at liberty to take recourse to law.
The complainants do further get Rs. 20000/ towards mental agony and harassment and Rs. 10000/ towards cost of litigation within 45 days from date in default complainants are at liberty to take recourse to law.
The opposite parties are also directed to pay and/ or deposit Rs. 2000/- 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.
