HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This appeal has been filed under section 15 of the Consumer Protection Act, 1986 (in short, ‘the Act’) challenging the impugned order and judgment dated 18/01/2023 passed by the Learned District Consumer Disputes Redressal Commission, Hooghly at Chinsurah in connection with D.F. Case No. CC/50/2019. The respondent Nos. 1 & 2 being the complainants filed the complaint case being No. CC/50/2019 praying for the following reliefs :-

“a) Directing the O.P. to complete the incomplete building as well as the “A” schedule flat.

b) Directing the O.P. to hand over the possession of the “A” schedule flat to the petitioners and alternatively directing the O.P. to purchase the petitioners said flat at the market rate of Rs.13,50,000/- (Rupees thirteen lakh and fifty thousand ) only.

c) Competition of Rs.4,00,000/- (Rupees four lakh) only for damage / harassment and Rs.50,000/- (Rupees fifty thousand) only for litigation cost.

d) Any other compensation which your Honour may deem fit and proper.”

2. Notices were duly issued upon the opposite party. The opposite party entered appearance in this case and was contesting the case by filing written version denying the material averments of the petition of complaint.

3. Both the parties adduced their evidence in support of their case.

4. After hearing both sides and on perusal of the evidence and materials available on record, the Learned District Commission allowed the petition of complaint being No. CC/50/2019 and passed the order which is reproduced as under :-

“that the complaint case being No. 50 of 2019 be and the same is allowed on contest but in part.

It is held that the complainants are entitled to get direction against the op in the matter of completing the building and allotting / handing over the flat in the schedule mentioned property. So, op is directed to complete the incomplete building within 45 days from the date of this order and to allot the schedule mentioned flat to the complainants within the above noted period. It is also held that the complainants are entitled to get compensation of Rs.90,000/- and litigation cost of Rs.10,000/- from the op. Op is directed to carry out the above noted directions within 45 days from the date of this judgement otherwise complainants are given liberty to execute this order as per law.

In the event of nonpayment/ non compliance of the above noted direction the opposite party is 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.”

5. Being aggrieved by and dissatisfied with the said order the appellant / opposite party has preferred this appeal.

6. Heard the Learned Advocate appearing for both the parties. The appellant in person has urged that the complaint case is not maintainable in law. The Learned District Commission has no jurisdiction to entertain the application of the respondents.

7. He has further urged that the Learned District Commission failed to appreciate that the complainant had taken a sum of Rs.60,00,000/- (Rupees sixty lakh only) and the complainant has filed the petition of complaint only to harass the appellant.

8. He has further urged that the Learned District Commission erred both in fact and in law in allowing the petition of complaint. The appellant in person has prayed for setting aside of the impugned order passed by the Learned District Commission. On the other hand, the Learned Advocate appearing for the respondents has urged that the appeal is not maintainable and the Learned District Commission has rightly passed the order dated 18/01/2023. So, the appeal should be dismissed.

9. Having heard the Learned Advocate appearing for the respondents and the appellant in person and on perusal of the materials available on record I find that it is an admitted position that the respondents / complainants are the owners of the property situated at 34/I, Bancharam Mitra Lane, Konnagar, P.S. Uttarpara, Dist. Hooghly and they engaged the appellant / opposite party as developer to develop the said property and for construction of multi-storied building.

10. It is also an admitted position that both the appellant and the respondents entered into a development agreement on 23/09/2019 and one Power of Attorney was also executed in between them.

11. It is also an admitted position that according to the terms and conditions of the development agreement the appellant / opposite party agreed to hand over the schedule mentioned flat to the respondents / complainants.

12. It is also an admitted position that the said flat is situated at the second storey of the newly constructed building after development and the measurement of the said flat was about 554 sq. ft.

13. It is also an admitted position that after execution of the said development agreement between the appellant and the respondents, the appellant demolished the building situated at 34/I, Bancharam Mitra Lane and 34/J, Bancharam Mitra Lane, Konnagar, P.S. Uttarpara, Dist. Hooghly.

14. It is also an admitted position that the said two premises have been amalgamated and in place of the said premises one holding being No. 34/I, Bancharam Mitra Lane, Konnagar, P.S. Uttarpara, Dist. Hooghly was taken place.

15. It is also an admitted position that the appellant has failed to complete the said multi storied building within the time and, as such, the appellant has failed to hand over the alleged flat to the complainant as yet.

16. It is also an admitted position that before institution of the present complaint case, the respondents gave two demand notices to the appellant.

17. Now, I shall have to consider as to whether the appellant paid a sum of Rs.6,00,000/- (Rupees six lakh only) and the respondent No. 1 has taken the same from the appellant as there was good relation between them. To prove the same the appellant has produced evidence on affidavit and has claimed that he has paid a sum of Rs.60,00,000/- (Rupees sixty lakh only) to the complainants and the complainant No. 1 received the same from him. On the contrary, the complainants by evidence have denied the same and have stated that they did not take any money from the appellant. Therefore, on consideration of the evidence of both sides it appears to me that there is oath vs. oath evidence in regard to payment of Rs.6,00,000/- (Rupees six lakh only) to the complainants / respondents. But to prove the same the appellant has not produced any paper to show that he paid a sum of Rs.6,00,000/- (Rupees six lakh only) to the complainants / respondents. Since there is no cogent evidence on the appellant’s side to the effect that the complainant No. 1 has taken money from the appellant, so, the plea of the appellant of taking money by the complainant No. 1 is not reliable and acceptable.

18. The development agreement executed between the appellant and the respondents dated 23/11/2009 discloses that the said development agreement was executed between the parties and the appellant agreed to hand over the ‘A’ schedule flat to the respondents which is situated upon the second storey of the holding No. 34/I, Bancharam Mitra Lane, measuring about 554 sq. ft. super built up area.

19. On scrutiny of the evidence of both sides I find that the appellant has not yet been able to complete the said flat and to hand over the said flat to the respondents as yet.

20. Therefore, on the consideration of the evidence and the materials available on record I find that there is deficiency in service on the appellant as he did not perform his part of his duties since the delivery of possession of the owners’ allocation of flat has not been handed over to the appellants as yet.

21. Under this facts and circumstances and on consideration of the materials on record it is found that the Learned District Consumer Disputes Redressal Commission, Hooghly at Chinsurah considered the evidence and facts and circumstances of the case and finally arrived at the conclusion and passed the judgment which, according to me, calls for no interference by this Commission. As such, it is liable to be affirmed and the appeal is liable to be dismissed.

22. In the result, the impugned order dated 18/01/2023 passed by the Learned Consumer Disputes Redressal Commission, Hooghly at Chinsurah in connection with consumer case No. CC/50/2019 is hereby confirmed. The appeal is, therefore, dismissed.

23. There will be no order as to costs.

24. Let a copy of this order be sent to the Learned Consumer Disputes Redressal Commission, Hooghly at Chinsurah at once.