In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/251/2022.
Date of filing: 27/12/2022. Date of Final Order: 05/12/2023.
Ms. Kalpana Bagchi,
w/o Later Pintu Bagchi,
354, New Station Road, PO- Bhadrakali,
Dist. Hooghly, PS- Uttarpara, PIN. 712232. …..complainant
-vs
- Sri Manoj Kumar Ghosh,
s/o Ajit Kumar Ghosh,
Parivar Reign PH-1, Apartment,
52B, G.T. Road, , PO- Bhadrakali,
Dist. Hooghly, PS- Uttarpara, PIN. 712232
- The Managing Director,
M/S Parivar Enclave Private Limited,
14F, Chowringhee Road, PO- Middleton Row,
PS- Sakespear Sarani, Kolkata- 700071.……opposite parties
Before: President, Shri Debasish Bandyopadhyay.
Member, Debasis Bhattacharya.
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 husband of the complainant expired on 2.6.2020, had executed an agreement with the ops in respect of allocation of a residential flat having area of 900 sq.ft. on 13.3.2012 with the term and conditions stated in the agreement and in terms of the said agreement it was stated that the ops shall hand over the said residential flat to the complainant and/ or his legal heirs within 30 months from the date of sanction of the construction plan from the local body and it was further agreed in the said agreement that the ops shall pay Rs. 2,00,000/- to the complainant and/ or his legal heirs as compensation and/ or for surrender of in lieu of tenancy Right by way of account payee cheque partly Rs. 50,000/- and Rs. 1,50,000/- at the time os handing over the possession of the said residential flat and the complainant had received Rs. 50,000/- by way of account payee cheques in two occasions in terms of the said agreement from the op and the op started the construction of the said proposed residential flat after the laps of almost five years and duly completed the said construction in recent past and during the period of COVID 19 pandemic situation the husband of the complainant expired and the complainant being the legal heirs of the agreement executors is illegible for execution of supplementary agreement with the ops to continue a substitute.
The complainant over and over requested the op no. 1 to execute supplementary agreement with the complainant but the op no. 1 willfully and deliberately delayed giving repeated time and date for signing the said agreement though the construction of proposed building has already been completed by the ops and the op no. 1 finally in January 2022 agreed to hand over the vacant possession of the said agreed residential flat to the complainant and shall pay the due balance of the amount Rs. 1,50,000/- by way of account payee cheque. In various pretext the ops refused to or avoid to contact with the complainant and even does not pick up the phone call of the complainant or kept the mobile phone busy or switch off for unknown reasons and the op no. 1 drive out the complainant from his residence and refused to talk and threatened with dire consequences moreover abused in dirty languages.
Being aggrieved the complainant forwarded a legal notice dt. 5.12.2022 to the ops through her ld. Advocate in terms of the agreement executed on 13.3.2012 within 15 days from the receipt of the notice and the said notice was refused to receive by the op no. 1 on 10.12.2022 and the notice forwarded to op no. 2 returned undelivered with postal remark “left” and copy forwarded to Uttarpara P.S. was received on 7.12.2022.
Complainant filed the complaint petition praying direction upon the opposite parties to hand over vacant possession of the 900 sq.ft. area of residential flat, 3rd floor immediately in favour of the complainant as legal heirs and to pay a sum of Rs. 1,50,000/- with interest from the date of expiry of 30 months of sanctioned plan and to pay a sum of Rs. 1,00,000/- for negligence and harassment and to pay a sum of Rs. 50,000/- as mental agony and to pay a sum of Rs. 30,000/- for litigation cost and to pay a sum of Rs. 5000/- per day for unfair trade practice of the damage till the date of realization.
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 complainant filed evidence on affidavit which is 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 filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of complainant are to be taken into consideration for passing final order.
Argument as advanced by the agent of the complainant heard in full. In course of argument ld. Lawyer of complainant has 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 inspite of receiving notice have not filed any W/V and also 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. This District Commission after going through the materials of the case record finds that the complainant and O.P No.1&2 are residents of Bhadrakali, Uttarpara, Hooghly which are 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. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. 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 on close examination of the pleadings of the complainant 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 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 complainant and there is also necessity making scrutiny of the documents filed by the petitioner of this case.
For the purpose of arriving at just and proper decision in respect of points of consideration nos. 4 and 5 this District Commission finds that there is necessity of making scrutiny of the evidence given by the complainant. In this regard it is important to note that the ops have neither filed any W/V nor filed any evidence on affidavit to disprove the case of the complainant. On close examination of the evidence given by the complainant side it is revealed that the complainant has categorically described his case in the evidence and the evidence given by the complainant is also supported by documents. It is also revealed that the evidence (oral and documentary) which is given by the complainant side remains unchallenged and/ or uncontroverted as no cross examination has been highlighted in this case by the ops. After going through the materials of this case record this District Commission finds that there is reason to disbelieve the unchallenged and uncontroverted testimony of the complainant side. It is also transpires that the complainant has proved his case by way of adducing evidence in connection with the points of consideration nos. 4 and 5 which have been adopted in this case.
All the above noted factors are clearly reflecting that the complainant is entitled to get relief in this case which has been prayed by this District Commission.
In the result it is accordingly
ordered
that the complaint case being no. 251 of 2022 be and the same is allowed ex parte but in part.
Opposite party nos. 1 and 2 are directed to deliver possession and to execute and register deed of conveyance in respect of the flat described in the schedule of the complaint petition and to pay the sum of Rs.150000/- as compensation within 45 days from the date of this order otherwise complainant is given liberty to execute this order 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.
