Presented by:
Minakshi Chakraborty, Presiding Member
BRIEF FACTS OF THE CASE :
This instant case has been filed by the complainant under section 12 of the Consumer Protection Act 1986. As per submission of complainant, he was entered into an agreement with the opposite parties on 14/02/2006 for purchasing one self contained Flat No.203, lying and situate on the 2nd Floor measuring about 380 Sq. ft super built up area at premises No.52/4, Panchanantala Road, Post Office and Police Station – Bally, Howrah-711201 in Mouza – Bally, J.L. No.14 Dag No.8042. The consideration for the said flat was agreed by and between the parties as Rs.1,90,000/-.
The complainant paid Rs.7,500/- as earnest money on the self-same day out of total consideration money to the O.ps. for and on the condition that the Flat will be completed and handed over in the year 2008. . On 09/02/2006, 17/12/2006 and 28/02/2007complainant paid total sum of Rs.1,77,500/-to the opposite parties and the OPs handed over possession of the flat to the complainant.
After completion of construction work the O.ps delivered possession of the said flat to the complainant with a condition that the full registration will be completed within short period. The complainant repeatedly requested the O.ps for execution and registration of the said flat in question but in vain. Since 08/04/2006 the complainant regularly and repeatedly demanded the developer to execute and register the Deed of Conveyance in favour of the complainant but the developer and the owners failed and neglected to complete the transaction by executing the Deed of Conveyance in favour of the complainant.
Ultimately having no other alternative the complainant filed the instant case with a prayer to direct the O.ps. to execute and register Deed of Conveyance in favour of the complainant, to award compensation to the tune of Rs.5,00,000/ for harassment, mental agony, financial loss, and litigation cost.
DEFENCE CASE:
In spite of receiving notice the O.p. nos.3 to 7 did not appeared for which the case was running ex parte against them.
The O.p. nos.1 & 2 entered their appearance by filing written version denying inter alia the material allegations leveled against them. According to the O.p. nos.1 & 2 they are ready to execute and register the Deed of Conveyance but due to negligence of O.p. no.3 they did not do so. So, there is no cause of action against them for filing the instant petition for which the complaint case is not maintainable.
Evidence on record
The complainant filed evidence on affidavit and written notes of argument which are nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.
Argument highlighted by the ld. Lawyers of the parties
Complainant has filed separate written notes of argument. As per B.N.A., evidence on affidavit and written notes of argument shall have to be taken into consideration for disposal of the case.
Heard argument of the complainant side at length. In course of argument Ld. Lawyer for the complainant has given emphasis on evidence and documents produced by them.
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?
DECISION WITH REASONS
Issue no.1:
Complainant filed the instant case against the opposite parties on the ground that complainant was entered into an agreement with the opposite parties for purchasing the flat in question for a consideration of Rs 1,90,000/ out of which part payment was made on various dates by the complainant but the opposite parties though have handed over the possession still did not registered and execute the deed of conveyance in favour of the complainant.
Now the vital question arises in the mind of this commission is that whether the complainant is consumer or not as per definition given in the Consumer Protection Act 1986.
According to section 2(d)(i) of the Consumer Protection Act 2019, consumer means “a person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose………….”
From the facts and circumstances of the case this commission comes to the point that the complainant is definitely a consumer as per terms of section 2(d) of the Consumer Protection Act 1986.
This issue is thus disposed of in the affirmative.
Issue no.2:
Both the complainant and opposite parties are resident within the jurisdiction of this Ld. Commission and the pecuniary limit is also within the jurisdiction of this commission.
This issue is thus disposed of in the affirmative.
ISSUE 3& 4
Both these issues are taken into consideration for the sake of convenience.
The complainant entered into an agreement with the opposite parties on 14/02/2006 for purchasing one self contained Flat No.203, lying and situate on the 2nd Floor measuring about 380 Sq. ft super built up area at premises No.52/4, Panchanantala Road, Post Office and Police Station – Bally, Howrah-711201 in Mouza – Bally, J.L. No.14 Dag No.8042. The consideration for the said flat was agreed by and between the parties as Rs.1,90,000/-.
The complainant paid Rs.7,500/- as earnest money on the self-same day out of total consideration money to the O.ps. for and on the condition that the Flat will be completed and handed over in the year 2008. . On 09/02/2006, 17/12/2006 and 28/02/2007complainant paid total sum of Rs.1,77,500/-to the opposite parties and the OPs handed over possession of the flat to the complainant.
After completion of construction work the O.ps delivered possession of the said flat to the complainant with a condition that the full registration will be completed within short period. The complainant repeatedly requested the O.ps for execution and registration of the said flat in question but in vain. Since 08/04/2006 the complainant regularly and repeatedly demanded the developer to execute and register the Deed of Conveyance in favour of the complainant but the developer and the owners failed and neglected to complete the transaction by executing the Deed of Conveyance in favour of the complainant.
The complainant filed the money receipts which are duly signed by op Sai Development. The complainant further filed the possession letter dated 08/04/2006 issued by the OP.
The opposite party no. 1 & 2 have filed written version with certain evasive denials but at the same time in their written version in paragraph number 4 they have expressed their eagerness to execute the deed of conveyance in favour of the complainant.
No scrap of paper has been submitted by the opposite party numbers 3 to 7 to show that they are ready and willing to execute and register the deed of conveyance in favour of the complainant which will prove that there was no deficiency on the part of them. Rather from the papers submitted by the complainant it is clear that there is gross negligence and deficiency on the part of the opposite party.
Both the issues are thus disposed of.
Hence,
O R D E R E D
That the Complaint case no240 of 2019 be and the same is decreed in favour of the complainant against the opposite parties with cost.
The opposite parties will register and execute the deed of conveyance in favour of the complainant within 45 days only after getting the rest of the amount from the complainant.
The complainant do get Rs. 10,000/ for mental harassment and agony and will further get Rs.5000/ for litigation cost from the opposite party numbers 3 to 7 within 45 days from date.
In case of non complice of the order the complainant is at liberty to take recourse to law.
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
The word file is drafted and corrected by me.
(Minakshi Chakraborty)
Member
D.C.D.R.C., Howrah
