In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/154/2018.
Date of filing: 01/10/2018. Date of Final Order: 09/04/2024.
- Sri Ajit Das,
s/o Sri Anil Das,
- Smt. Saraswati Das,
s/o Sri Anil Das,
both are residing at Village- Naldanga,
Narayanpur, P.O. Bandel, P.S. Chinsurah,
Dist. Hooghly, PIN Code- 712123.…..complainants
- Sri Barun Kumar Mahajan,
s/o Late Ranjit Kumar Mahajan,
r/o P/C/1, “Pritua Apartment”,
Bankim Kanan, Talikhola, Chinsurah Station Road,
P.O. & P.S. Chinsurah, Dist. Hooghly, PIN Code- 712101.
- Sri Ayan Das,
s/o Sri Ranjit Kumar Das,
r/o N.S. Road, Kharua Bazar,
P.O. & P.S. Chinsurah, Dist. Hooghly, PIN Code- 712101.
- M/S Sai Construction,
A partnership firm, having its office at
P/C/1, “Pritua Apartment”,
Bankim Kanan, Talikhola, P.O. Chinsurah Station Road,
P.O. & P.S. Chinsurah, Dist. Hooghly, PIN Code- 712101.
- The Branch Manager,
State Bank of India,
Akhan Bazar Branch, Akhan Bazar,
P.O. & P.S. Chinsurah, Dist. Hooghly, PIN. 712101.
……..opposite parties
Before: President, Shri Debasish Bandyopadhyay.
Member, Babita Chaudhuri.
FINAL ORDER/JUDGEMENT
Presented by:-
Shri Debasish Bandyopadhyay, President.
Brief fact of this case:- This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that the complainants entered into a sale agreement with the OPs to purchase the schedule mentioned flat on 19.2.2018 at the consideration of Rs.1350000/- only. As per agreement said complainants purchased the said schedule mentioned flat from the OPs on 26.4.2018 as per sale deed being no.0601056-86 for the year of 2018. The OP -3 is partnership firm and the OP-1&2 are the partners of the said firm. Though the said sale deed was executed on 26.4.2018 and registration of said sale deed in favour of the complainants was completed on 22.5.2018 and the said OPs received an amount of Rs.1350000/- only as total consideration price but till date the OPs have failed to give possession in favour of the complainants in respect of the schedule mentioned flat. The said OPs received Rs.50000/- only extra as charges for installation of transformer in the said flat premises so that the complainants may get electric connection uninterruptedly. Though the said OPs have received of Rs.50000/- only as an extra as fees for installation of transformer but they do not install the said transformer till date and there is no electric connection in the schedule mentioned flat. At the time of selling out of the schedule mentioned flat, it was settled that there could be lift facility and though there is separate provisions for running of lift, but no lift has been installed till date in the said flat premises.
The complainants purchased the schedule mentioned flat for residential purpose and to purchase the said flat, the complainant no-1 has taken a bank loan from State Bank of India, Akhan bazaar branch, Chinsurah and the complainant no.1 has to pay Rs.8600/- only per month as loan EMI. The complainants have requested the OPs to hand over the key of the flat but the OPs do not pay any heed in it and for that reason, the complainants issued notice ;upon the OP-1 &2 but inspite of receiving of Notice, the OPs are silent in it.
The complainants have suddenly received a summons from the Ld. First court of civil judge (Junior Division), Hooghly of title suit being no.307 of 2018 wherefrom the complainants have come to know that the OP-1 has instituted the said suit against the OP-1 defendant-2 and the complainant-1 as defendant -2 and complainant no.1 as defendant no-3 and wherein the OP-2 as plaintiff admits himself as partner of the firm but on the contrary he wants to avoid his liabilities and it is seemed that the OP-1&2 have filed this suit collusively.
Complainant filed the complaint petition praying direction upon the opposite parties delivery of peaceful possession handing over the key of the flat and to install lift and transformer and to pay a sum of Rs. 300000/- for damages of mental agony harassment and to pay a sum of Rs. 2,00,000/- for the damages of payment of EMI without having the possession of the flat.
Defense Case:- The opposite party No. 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the registration of sale deed was executed on 22.5.2018 and had there been any deficiency in service as per agreement then why the complainants executed the sale deed and furthermore a Civil Suit to that effect no. T.S. 307/18 is pending before the Civil Judge, Jr. Div, 1st Court, Hooghly and having been aware of those facts the complainants have filed this complaint only to harass the op no. 2 and the complaint filed by the complainants have no legal basis. Besides if the Forum proceeds with the complaint there might be further legal complainants to settle the disputes between the complainants and the op no. 2 (if any). Thus, the complainants be dismissed as a matter of “Natural Justice”. The actual consumer of the complainants has to take the liability to get electrical connection as per Electricity Act and there is no deficiency on the part of the op no. 2 and it is to be mentioned here that the complainants are well aware of the fact that a Civil Suit on the same cause of action has been pending in the Court and inspite of the fact the complainants has filed this complaint before the Forum only to harass the op no. 2. In the circumstances the complaint filed by the complainants are liable to be dismissed with cost because this complaint is frivolous in nature and against the C.P. Act.
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 complainants 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.
The answering opposite party no. 2 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 no. 2 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 complainants and the opposite party no. 2 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 residents of Chinsurah, 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 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 points 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 the complainant has already paid the entire consideration money and sale deed in respect of the schedule mentioned flat has been executed and registered on 26.4.2018 but the OPs have not yet delivered possession of the said flat in favour of the complainants. It is also revealed that the OPs inspite of taking additional amount of Rs.50000/- have not yet installed transformer and lift in the said apartment although the OPs have already enjoyed sufficient period of time for installation of the transformer and lift and also for handing over possession of the schedule mentioned flat in favour of the complainants. This matter is clearly reflecting that there is negligence, unfair trade practice and deficiency of service on the part of the OPs. In this regard this District Commission after going through the material of this case record finds that the OPs adopted the plea that one Title Suit being No.307 of 2018 is pending before the Civil Judge Junior Division 1st Court, Hooghly over the self same issue. But it is very important to note that the OPs have neither filed any document to show that there is an order of injunction in favour of the OPs who are the complainants of the above noted case nor have filed any documents to show that the said civil case has been decided in favour of the complainants who are the OPs of this case. Thus it is crystal clear that the above noted point of contention of the OPs relating to pendency of Civil case has no legs to stand upon. So the above noted plea of the OPs cannot be accepted.
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. 154 of 2018 be and the same is allowed on contest against OP-2 but in part and it is decided ex parte against other OPs. It is held that the complainant is entitled to get a decree for passing direction upon the OPs to deliver peaceful possession and to hand over the keys of the flat to the complainants. It is also held that the complainant is also entitled to get an award of direction upon the OPs to install lift and transformer in the said apartment and also to pay compensation of Rs.30000/- and litigation cost of Rs.5000/-. OPs are directed to carry out the said above noted directions positively within 45 days from the date of passing of this judgment otherwise the complainants are given liberty to execute this award 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. 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.
