Sri Partha Kumar Basu, Member

This complaint petition u/s 36 of the Consumer Protection Act 2019 is at the instance of the Complainant for alleged deficiency of services on the part of the Opposite parties in a consumer dispute of house construction.

The facts of the complaint case as averred by the complainant in gist is that he came in contact with the father of the OP and thereafter the OP approached the complainant who decided to buy a ground floor flat in a 3 storied house project consisting of few flats under the Narendrapur Police Station at the district of South 24 Parganas, The complainant being in need of a dwelling unit, selected the said ground floor having an area of 1240 Sq.ft. in the said house for a price @ Rs.1800/- per Sq.ft., and decided for purchasing the same. Accordingly an agreement was executed on 20.07.2020 between the proposed purchaser cum complainant and the OP developer. Following the terms and conditions set by both parties, a payment of Rs.6,00,000/- (Rs. Six Lakhs) only was made in phases by the complainant against receipts. But the OP did not hand over the suit property to the complainant till the date of filing the complaint. Hence the complainant, under compulsion, had to seek for a direction from this commission on the OP to deliver the possession of the scheduled property by executing registration of the deed of conveyance alongwith completion certificate after accepting the balance money out of the total consideration money of Rs. 22,32,000/- (Rupees twenty two lakh thirty two thousand). The complainant also prayed for a payment of compensation of Rs. 5,00,000/- for mental agony and a cost of Rs. 50,000/- for litigation from the OP.

In support of his case, the complainant filed (a) Evidence on affidavit, (b) copy of agreement dated 20.07.2020, (c) bank statements from running page 21 to 29 of the complaint petition in support of payments made to the OP and (d) Legal notices issued to OP on various dates etc.

After having received notice about the complaint, the OP filed written version to contest the case. It has been contended therein that the instant complaint is not maintainable being this commission having no jurisdiction and being the complainant not covered under the definition of a consumer u/s 2(1) as per the Consumer Protection Act 2019. The Ld. Advocate of the OP further contended in their W/V by partly admitting that such an agreement was executed for sale of the suit property as well as money was taken as advanced. But the OP contested that not an area of 1240 Sq.ft but an area of only 491 Sq.ft was mutually agreed amongst both sides and settled at a later date as corroborated by a letter dated 23.08.2021 from the advocate of the complainant which was agreed by another reply letter dated 02.06.2021 from the advocate of the OP to the complainant, for purchase by the complainant.

No exhibit was filed by the OP in support. The OP neither adduced any Evidence on affidavit nor filed BNA nor participated in the final hearing.

We have considered the submission made by the Ld. Advocate for the complainant and scrutinized the materials on record including that of the OP.

As the complainant paid money from time to time on different dates towards the total consideration amount and the OP acknowledged the same by issuing money receipts therefore, the complainant is a consumer as defined U/s 2(7) (ii) of the Consumer Protection Act, 2019 as a service provider as per detailed conditions mentioned in the sale agreement dated 20.07.2020. There is no ground of any deviation found for not being the instant case maintainable on account of geographical or pecuniary jurisdiction whatsoever, since all are well within the ambit and jurisdiction of the district commission.

On perusal of the petition of complaint and the evidences on record, it transpires that the complainant opted to get services of the OP, when the OP was going to construct a 3 storied house. It also transpires from records and evidences that the complainant and the Opposite party entered into an agreement on 20/07/2020 and by this said agreement the complainant booked the ground floor flat as per page 3 of the said agreement. But there is nowhere any mention of the quantum or area or any schedule in the said agreement which depicts that there had been an agreed terms to sale out for an area of 1240 sq. ft. as claimed by complainant. It also appears that at that time of the booking and thereafter the complainant paid Rs.6,00,000/- to the OP from time to time as per bank statements and receipts issued by the OP. It is not in dispute that the OP has received the said amount but the dispute centres around the measurement of the ground floor for delivering the possession of the said flat to the complainant by the OP. No cogent evidence has been exhibited in support of the claim of the complainant about measurement of the suit property which appears to be an inherent defect in the said agreement. Neither the OP exhibited even a scrap of document about the claimed mutually agreed terms amongst both sides from an initial area of 1240 Sq.ft. to a reduced area of 491 Sq.ft as claimed and the reply letter dated 02.06.2021 as claimed by the OP having issued from the side of the advocate of the OP as an agreed terms, was never exhibited as proof, to verify the contents.

The facts and circumstances and materials on record, more particularly, relying upon the evidence on record, it is palpably clear that there is a contributory negligence caused by both the parties. On one hand, both the parties have undergone through a defective agreement by not fixing the quantum or the area of the property which they agreed to sale or purchase. On the other hand they are now disputing about the same but not any other material issue. As such, the allegations as per complaint petition about deficiency in rendering services towards the consumer by the OP is not established.

In view of the above, the complainant is not entitled to get any relief. However it will be incumbent on the part of the OP to refund the amount as advanced by the complainant alongwith normal banking rate.

Hence, it is,

ORDERED

That the instant complaint case is decreed on contest in part but without cost.

The OP is directed to refund the entire advanced amount of Rs.6,00,000/- (Rupees Six Lac) only along with a simple interest @ 7% per annum from the respective dates of payments till the date of final realization, within 60 days from the date of passing of this order.

However, the complainant will be at liberty to put the entire order into execution after the expiry of 60 days, in case this order is not complied by the OP within 60 days from the date of passing of this order.

Ld. Member Smt. Shampa Ghosh joined on 12.12.2023 and did not take part in the hearing of argument of this case and as such, she did not sign the Judgement. 

Let a copy of the order be supplied free of cost to the parties as per CPR.

That the final order will be available in the following website www.confonet.in.

Dictated and corrected by me.

(Partha Kumar Basu)

Member, Commission