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 complainant engaged the OP as the developer of the property mentioned in the schedule of the complaint petition, for the construction of the multistoried building upon the said property and one development agreement had been executed between the OP and the petitioners on 23.11.2009 and one power of attorney also been executed between them and according to the terms and conditions of the said development agreement, the OP agreed to hand over the schedule mentioned flat to the petitioners, which is situated upon the second storied of the holding no.34/1, Bancharam Mitra Lane, measuring about 554 sq. feet super built up area  and after demolishing the existing the two buildings upon the holding no.34/1, Bancharam Mitra Lane and 34/J, Bancharam Mitra Lane, the OP constructed the said building upon the schedule mentioned property, but did not complete the building accordingly and the petitioners repeatedly requested the OP to finish the building but the OP did not complete the same and violated the terms and conditions of the said development agreement and the OP without handing over the schedule mentioned flat, to the petitioners, enjoying the same for his residential house and damaging the same and as such the OP is violating the terms and conditions of the said development agreement and the petitioners are the senior citizen and the petitioners have no source of income and if the OP hand over the same in time, then the petitioners will use the same as their one of the source of income and due to the illegal acts of the OP the petitioners are suffering pecuniary problems and the OP is the sole liable and responsible for the same.  It is stated that  the petitioners are suffering from mental agony and pain, due to illegal acts of the OP and it to be mentioned that schedulementioned property is the amalgamated propertyand two holding, such as 34/1, Bancharam Mitra Lane and 34/J, Bancharam Mitra Lane are amalgamated into one holding as 34/1, Bancharam Mitra Lane and it to be mentioned that according to the terms and conditions of the said development agreement the OP part performed, but did not hand over the residue portion of the schedule mentioned flat to the petitioners and the petitioners repeatedly requested the OP to hand over the schedule mentioned flat to the petitioners, lastly on 02.01.2019  but theOP did not hand over the same and violated the termsand conditions of the said development agreement and looking no other alternative the petitioner send one notice on 04.02.2019, notice dated 31.01.2019 and requested the OP  to hand over the schedule mentioned flat to the petitioners, according to the terms and conditions of the said agreement  dated 23.11.2009 and the OP received the said letter on 05.02.2019, but after receiving the said notice the OP did not hand over the residue portion of the schedule mentioned flat to the petitioners.

Complainant filed the complaint petition praying directionupon the opposite party to complete the incomplete building to pay a sum of Rs. 13,50,000/- for purchasing the said flat and to pay sum of Rs.400,000/- for damage/harassment and to pay sum of Rs.50,000/- for litigation cost.

Defense Case:-    The opposite party contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the OP is a property devel0per, petitioners and the OP jointly made an agreement.  The said petitioner have a property at 34/1 Bancharam Mitra Lane P.O-Konnagar, P.S-Uttarpara Dist.-Hooghly PIN 712235 and the said petitioners gave the power of attorney to the OP and the OP made a construction over it and according to their agreement the OP made an establishment of payment & owners allocation and for that a good relationship establishment between them and the original fact is that the petitioner no-1 took huge amount of money from the OP and  the amount is near about 6 lakhs for the sake of the good relationship  and subsequently when the OP demanding the money then the above mentioned petitioner decided to revoke the power of attorney and subsequently he had done it and when the matter is comes to the knowledge of the OP then he requested to the petitioner in a variousmanner, but all efforts went in vein 7 subsequently the OP filed a criminal case against the petitioner before the Ld. A.C.J.M. Serampore& the matter is pending before the court.

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 non-maintainability 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 is a resident of Konnagar, 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, 2019. 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 complainants are the owner of the properties situated at 34/1, Bancharam Mitra Lane, Konnagar, P.S. Uttarpara, Dist. Hooghly.
2. It is also admitted fact that the complainants engaged the ops    as developer to develop the said property and for construction of a multistoried building.
3. There is no dispute over the issue that one development agreement was executed between the complainants and op.
4. There is no controversy over the issue that the said agreement was executed on 23.11.2009.
5. It is admitted fact that one power of attorney was also executed in between the complainants and op.
6. It is also admitted fact that according to the terms and conditions of the development agreement the op agreed to hand over the schedule mentioned flat of the complaint petition to the petitioners.
7. There is no dispute over the issue that the said flat is situated at the 2^nd storied of the newly constructed building after development.
8. There is no controversy over the issue that the measurement of the said flat was about 554 sq.ft.
9. It is admitted fact that the op after execution of the development agreement demolished the building situated at 34/1, Bancharam Mitra Lane, and 34/J, Bancharam Mitra Lane, Konnagar, P.S. Uttarpara, Dist. Hooghly.
10. It is also admitted fact that the said two premises have been amalgamated and in place of the said two premises, one holding no. 34/1, Bancharam Mitra Lane, Konnagar, P.S. Uttarpara, Dist. Hooghly has taken place.
11. There is no dispute over the issue that the op failed to complete the said multistoried building within time.
12. There is no dispute over the issue that the op has not handed over the said flat to the petitioners as yet.
13. There is no controversy over the issue that the petitioners issued one legal notice dt.31.1.2019 to the op but op has not given any reply.
14. It is admitted fact that thereafter the complainants have given another notice dt. 4.2.2019 to the op but op remained silent.

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 deferring on the point and/ or apple of discord between the parties of this case is that the complainants are claiming that due to negligent activities on the part of the op and on account of deficiency of service on the part of the op the complainants have not yet received the flat in the schedule mentioned property and for that reason  the complainants are entitled to get direction upon the op to complete the said multistoried building and to pay compensation and litigation cost but on the other hand the op is adopting the plea that there was good relation in between the complainants and op and by taking advantage  of the said good relationship the complainant no. 1 has taken huge amount of money from the op which is near about 6 lakhs but it has not yet been returned the said money to the op  inspite of the repeated demand and for that reason the op has revoked the power of attorney and has intimated the same to the complainants and there is no negligence or deficiency of service on the part of the op.

           Regarding the above noted points of differences and/ or apple of discords in between the parties of this case, this District Commission for the purpose of arriving at the just and proper decision, has scanned the evidence on affidavit submitted by both sides and also scrutinized the documents filed by both sides, finds that the op has revoked the power of attorney unilateral way although said document is a bilateral document and so the act of revocation of power of attorney in unilateral way is not as per law. Moreover the op has not taken any steps in the matter of determination of the development agreement executed in between complainants and op on 23.11.2009 and for that reason the terms and conditions of the said development agreement and still in force and so the op is duty bound to abide by the same. There is no cogent evidence of op side that complainant no. 1 has taken money from op and so the plea of op of taking money by complainant no. 1 is not reliable and/ or acceptable. All these factors are clearly depicting that the op is duty bound to complete the said multistoried building and to allot the flat to the complainants which has not yet been done. This matter is clearly depicting that there is negligence and deficiency of service on the part of the op.

A cumulative consideration of the above noted discussion goes to show that the complainants have proved their case in respect of all the issues/ points of consideration framed in this case by this District Commission and so he is entitled to get relief which has been prayed for.

In the result it is accordingly

ordered

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.

            The Final Order will be available in the following website www.confonet.nic.in.

Dictated and corrected by me.