F I N A L  O R D E R  /  J U D G E M E N T

Presented by: -

                   Shri Debasish Bondhyapadhyay, President.

Brief fact of this case: - This case has been filed under section 12 of C.P. Act, 1986 by the complainant against the OP stating that complainant on 15/02/2013 entered into an Agreement for booking a flat measuring about an area of 250 Sq.ft. on the 2^nd floor of the building situated at Premises No. 100/5, Rabindra Sarani, Liluah West, Howrah at a consideration price of Rs.2,000/- per Sq. ft. and accordingly complainant paid Rs.65,000/- only by cash to the OP as booking amount for the said flat and later on complainant paid Rs.5,00,000/- only to the OP and finally the transaction completed on 02/03/2015.

Complainant also stated that thereafter complainant severally requested the OP/Developer to register the flat in question in the name of the complainant but OP/Developer always ignored in doing the same and complainant on account of guilty of unfair trade practice and deficiency of service from the end of the OP/Developer sent a legal notice on 08/01/2018 to the OP/Developer but OP/Developer did not care for the same and under such circumstances and finding no other alternative way Complainant filed this case before this Commission (formerly Forum) praying for direction upon the OP/Developer to refund the entire amount of Rs.5,00,000/- only paid by the complainant to the OP/Developer and also praying for direction upon the OP/Developer to pay Rs.3,00,000/- only to the complainant as compensation and also to pay to the complainant a sum of Rs.10,000/- only as litigation cost.

Defense Case: -         OP has contested the case by filing W/V denying all the material allegations made by the complainant and contented inter alia that:-

The instant application as framed by the complainant is not maintainable either in law or in facts and the contents of the complaint is wholly harassing, speculative and without any substance and as such, complaint of complainant is liable to be rejected.

OP also stated that complainant applied for booking for a flat being No. C on the 2^nd floor @ Rs.2,000/- per Sq. ft. on making initial payment as booking amount a sum of Rs.65,000/- only and from time of booking up 02/03/2015 complainant paid total sum of Rs.4,25,000/- only whereas after completion of construction in full of the flat being No. C at 2^nd floor complainant took possession in June, 2013 but upon physical measurement of the flat in question at that time it is measured 320 Sq.ft. including permissible super built up area and complainant accordingly have to pay a sum of Rs.6,40,000/- as price of the flat in question out of which complainant paid a sum of Rs.4,25,000/- and as such, complainant will have to pay an extra sum of Rs.2,15,000/- for extra works done which is still remain unpaid and when such due amount together with interest as well as price hike will be paid the OP will execute and registered Deed of Conveyance at the cost of the complainant. OP also stated that OP was/is ready and willing to discharge his part of obligation.

Under such circumstance, OP denied that though complainant severally requested the OP/Developer by sending a lawyer’s notice on 08/01/2018 to register the flat in question but  OP has ignored the same. It is also stated by the OP that the flat in question was/is completed and complainant took possession in June, 2013 after making only a part payment and thereafter, despite repeated request from the end of the OP, complainant could not pay the balance amount to get the Deed registered, on the contrary, complainant paid a paltry amount from time to time, which has been received by this OP and such transaction proved as inability/unwillingness on the part of the complainant.

At this stage, it is stated by the OP that considering the facts stated herein above, complaint of complainant should be rejected with heavy costs as the complainant is residing in the flat in question since June, 2013 by using electric connection in his own and consuming electricity by paying a very paltry amount towards monthly rent whereas the cost for taking electric connection had been incurred by the OP.

Issue(s) / Point(s) for Consideration

          On the basis of the pleading of the of the Ld. Advocates of both the parties, this District Commission for the interest of proper and complete adjudication of this case is going to adopt the following point(s) for consideration: -

1. Whether the complainant is the consumer to the OP or not?
2. Whether this Commission (formerly Forum) has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether there is any unfair trade practice on the part of the OP or there is any deficiency in service on the part of the OP.
4. Is the complainant entitled to get relief/reliefs as prayed for?

Evidence on record

          Complainant filed Examination-in-Chief supported by affidavit and filed BNA in support of his case.

          On the other hand, the OP in respect of his defense case has filed evidence on affidavit in this case.

ARGUMENT HIGHLIGHTED BY THE PARTIES

          In this instant case both the complainant and the OP have filed their Brief Notes of Argument and at the time of argument both the complainant and the OP lay emphasis on the BNA filed by them and also highlighted the evidence on affidavit filed by the parties along with interrogatories and reply filed by the parties.

DECISION WITH REASON

          The points of consideration Nos. 1 & 2 are vital point of consideration and so these two points of consideration are taken up for discussion at first. The question involved in these two points of consideration are interlinked and/or inter-connected with each other. For that reason and for the interest of convenient discussion these two points of consideration are clubbed together and taken up for discussion jointly.

          After going through the evidence on record it appears that the complainant entered into agreement with the OP for purchasing the schedule mentioned flat and at the time of execution of the Agreement for Sale the complainant paid Rs.65,000/- by cash to the OP as booking amount in respect of the said flat and thereafter the complainant paid Rs.5,00,000/- to the OP. This factor is clearly reflecting that the complainant is a consumer under the OP.

On close scrutiny from the materials on record, it reveals that the complainant is the consumer under Section 2(i)(d)(i)(ii) of the C.P.Act, 1986 to the OP.

Complainant appears to be the resident of Howrah whereas OP is also having their residences/office in district Howrah. Considering the nature of the case and prayers of the complainant it straightway gives clear signal that pecuniary value of the case is within Rs.20,00,000/- i.e. within the limit of this Commission (formerly Forum). So, this Commission (formerly Forum) has territorial/pecuniary jurisdiction to entertain and try this case.

          The above noted factors are clearly reflecting that this District Commission has pecuniary and territorial jurisdiction to try this case and complainant is a consumer under the OP.

          In the written version the OP has alleged that this case is not maintainable, this case is barred by limitation and there is no cause of action for filing this case. For the purpose of determination of these matters this District Commission after going through the pleadings of the parties and evidence on record finds that this case is maintainable and this case has been filed within 2(two) years from the cause of action arisen in this case. More so, according to Section 24A of the Consumer Protection Act, 1986 this case is not barred by limitation. All these factors are clearly highlighting that this case is maintainable in the eye of law and this is not barred by limitation and complainant has cause of action for filing this case.

          The point of consideration No. 3 has been adopted on the point whether there is any unfair trade practice on the part of the OP or there is any deficiency of service on the part of the OP or not? The point of consideration No. 4 is related with the question whether the complainant is entitled to get relief/reliefs as prayed by the complainant in this case or not? These two issues are interlinked and/or interconnected with each other. For that reason and for the interest of convenience of discussion these two points of consideration are clubbed together and taken up for discussion jointly. For the purpose of determining the fate of the above noted two points of consideration this District Commission after going through the pleadings of the parties as well as evidence on record finds that the complainant on 15/02/2013 entered into an Agreement for booking a flat measuring about 250 Sq.ft. in the 2^nd floor of the building situated at Premises No. 100/5, Rabindra Sarani, Liluah West, Howrah at a consideration price of Rs.2,000/- per square feet and thereafter the complainant had paid Rs.65,000/- to the OP in cash as booking amount for the said flat. It is also revealed that the complainant subsequently paid Rs.5,00,000/- to the OP and finally the transaction completed on 02/03/2015. It is also reflected from the evidence on record that the OP has not executed and registered the Deed of Conveyance in respect of the schedule mentioned flat although as per Agreement the OP was supposed to execute and register the Deed of Conveyance. From the evidence on record it is revealed that the complainant time and again requested the OP/Developer to execute and register the Deed of Conveyance in respect of the schedule mentioned flat but the OP had not carried out the same. It is also reflected that the complainant finding no other way had sent a legal notice on 08/01/2018 to the OP/Developer but the OP/Developer had not paid any heed to such appeal of the complainant and thereafter the complainant has been compelled to institute this case. The OP in his defense case has admitted that the complainant entered into Agreement and booked one flat on the 2^nd floor and also paid Rs.65,000/- and thereafter the complainant ultimately had paid Rs.4,25,000/- in total for the said flat. As per point of contention of the OP the complainant had taken the possession of the said flat in June, 2013 but upon physical measurement of the said flat in question it is revealed that the flat allotted to the complainant was 320 Sq.ft. and so the total consideration money in respect of that flat is Rs.6,40,000/- but the complainant had only paid Rs.4,25,000/-. As per case of the OP the complainant has not yet paid Rs.2,15,000/- and so the OP has not yet executed and registered the Deed of Conveyance.

          On comparative studies of the evidence given by the complainant side and OP side this District Commission finds that the OP in respect of his plea that the flat allotted to the complainant is 320 Sq.ft. and the complainant is in possession of the said flat, the OP had not conducted any local inspection commission or local investigating commission or survey commission. All these factors are clearly reflecting that the plea highlighted by the OP side is bereft of any cogent evidence and so the defense alibi which is adopted by the OP cannot be accepted.

          In this regard, this District Commission after most respectfully reading of the judgment of Hon’ble Apex Court which is reported in AIR2022 Supreme Court Page 1824 finds that failure to deliver possession and execute and register the Deed of Conveyance within stipulated time is undoubtedly unfair trade practice and deficiency of service and in that event the OP is duty bound to refund the advance amount which has been paid by the complainant to the OP along with interest @ 9% per annum. It has already been observed by this District Commission that the complainant has paid Rs.5,00,000/- to the OP as consideration money in respect of the schedule mentioned flat. Thus, the OP in view of the above noted decision of the Hon’ble Apex Court is bound to refund the advance amount of Rs.5,00,000/- to the complainant along with interest @ 9% per annum.

          The cumulative consideration of the above noted discussion goes to show that the complainant has proved his case in respect of points of consideration Nos. 3 & 4 as well and so the complainant is entitled to get the relief which has been prayed in this case.

          In the result, it is accordingly,

O R D E R E D

          That this Complaint Case being No. CC/25/2019 be and same is allowed on contest but in part.

          It is held that the complainant is entitled to get back the advance money of Rs.5,00,000/- along with interest @ 9% per annum from the date of filing of this case from the OP/Developer.

          The OP/Developer is directed to pay the advance amount to the complainant within 45(forty five) days from the date of delivery of this judgment otherwise the complainant is given liberty to execute this award as per law.

          In the event of non-compliance/failure of complying the award by the OP, the OP/Developer shall deposit Rs.10,000/- in the Consumer Legal Account of D.C.D.R.C., Howrah which is to be utilized for the interest of poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/Ld. Advocates/Agents on record by hand under proper acknowledgement/send by ordinary post for information and necessary action.

The final order will be available in the following website      Dictated & Corrected by me

(Shri Debasish Bondhyapadhyay)

  President, D.C.D.R.C., Howrah