F I N A L O R D E R / J U D G E M E N T
Judgment Delivered by: -
Shri Debasish Bandyopadhyay, President.
Fact of this case: ─ This consumer complaint under section 12 of C.P. Act, 1986 has been filed by the complainant against the OP named above alleging deficiency in service and unfair trade practice on the part of the OP.
Complainant’s case, in brief, is as follows: - That OP is the owner of the plot of land measuring about 2(two) Cottah 3(three) Chatak 31(thirty one) Sq.ft. at Mouza Ichapur under R.S. Plot No. 924, 923 & 934 under Khatian No. 984, P.S. Jagacha, Howrah within the jurisdiction of Ward No. 22 of Howrah Municipal Corporation, described as Schedule ‘A’ and OP made an offer to sell out flats on ownership basis by constructing a multi storied building upon the said Schedule ‘A’ property.
That after complainant approached before the OP for purchasing one flat of the said multi storied building and upon consent an Agreement for Sale was executed on 26/03/2014 described as Schedule ‘B’ and it was agreed that the OP shall sale out one flat measuring about 680 Sq.ft. built up area excluding 20% super built up area which is 136 Sq.ft. north-west-south portion of the 2nd floor at the Schedule ‘A’ mentioned property consisting of two bed room one attached bath and one common bath room, one open kitchen with dining space and the rate of sale of the said flat was fixed at Rs.3,100/- per square feet and thus, the total cost of the flat in question comes to Rs.25,29,600/- and accordingly complainant paid a sum of Rs.2,00,000/- by way of Cheque being No. 118358 of ICICI Bank, Kadamtala Branch, Howrah dated 02/04/2014 as advance at the time of execution of the Agreement for Sale and it was also decided that the rest amount shall be paid time to time.
That OP did not hand over the relevant documents relating to the said schedule mentioned property for inspection and enquiry for satisfaction. After that complainant handed over a plan of proposed 2 BHK flat for construction, according to said plan OP was agreed and started construction work in some parts of the said proposed flat and OP assured the complainant that after completion of proposed flat the Xerox copy of relevant documents will be supplied for preparation of Deed of Sale.
That on 25/09/2016 complainant visited the schedule mentioned property and found that the construction work is already completed and accordingly complainant requested the OP for supplying the relevant documents for preparation of Deed of Sale and OP supplied the same. Complainant was satisfied upon the relevant documents regarding the scheduled mentioned property and on 10/10/2016 complainant requested the OP for inspection of schedule ‘B’ mentioned flat and at that time complainant came to know that the said schedule ‘B’ mentioned flat is already transferred and sold out to the new purchaser by the OP by adopting unfair trade and on asking OP admitted his guilt and agreed to return the said amount with compensation but complainant refused to accept any compensation though complainant sustained a huge loss of money and mental agony.
Under such circumstances and finding no other alternative way complainant filed this case before this Commission (formerly Forum) praying for directions upon the OP to pay the earnest money to the complainant amounting to Rs.2,00,000/- only, to pay to the complainant a sum of Rs.2,00,000/- only as compensation towards non-fulfillment of the obligation as per agreement due to adopting the unfair trade practice and complainant also prayed before this Commission for direction upon the OP to pay a sum of Rs.1,00,000/- only as cost of legal proceedings of the present case.
Defense Case as per OP: - OP has contested the case by filing W/V denying all 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 baseless, harassing and complainant with some malafide intention has filed this case.
Complainant entered into an Agreement for Sale with the OP on 26/03/2014 for purchasing a flat measuring about 816 Sq.ft at 2nd floor at Mouza Ichapur under R.S. Plot No. 924, 923 & 934 under Khatian No. 984, P.S. Jagacha, Howrah within the jurisdiction of Ward No. 22 of Howrah Municipal Corporation at a total consideration money of Rs.25,29,600/- and as per said Agreement for Sale complainant was bound to make payment the balance amount to the OP time to time except the meager amount paid by the complainant as advance but complainant never shows any bonafideness on making the balance payment in spite of all readiness and willingness on the part of the OP and on several occasions OP requested the complainant to make payment of the balance amount and take delivery of possession of the flat on getting registration of Sale Deed and in spite of such act from the end of the OP complainant with some false allegation claiming the relief against the OP and as such, the instant case is is required to be rejected or liable to be dismissed with costs.
POINTS FOR DECISION
- Whether the complainant is the consumer to the OP or not?
- Whether this Commission (formerly Forum) has territorial/pecuniary jurisdiction to entertain and try the case?
- 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.
- Is the complainant entitled to get relief/reliefs as prayed for?
DECISION WITH REASON
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 OPs.
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.
In support of his case complainant filed Examination-in-Chief supported by affidavit, filed reply against the questionnaire of OP, filed questionnaire and finally complainant filed BNA.
Whereas OP also in support of his case filed Evidence on affidavit, filed reply against the questionnaire of complainant, filed questionnaire but did not file BNA.
Over the issue of maintainability of this case, limitation matter and cause of action matter this District Commission after going through the pleadings of the parties finds that the OP has not filed any separate application on the ground that this case is not maintainable. However, all these points have been alleged in the written version. For the purpose of deciding this matter this District Commission after going through the provision of Section 11 of the Consumer Protection Act, 1986 finds that this District Commission has jurisdiction to try this case. More so, the claim of the complainant is below Rs.20,00,000/- and so the pecuniary jurisdiction of this District Commission is also lying.
Over the issue of limitation this District Commission after going through the provision of Section 24(A) of the Consumer Protection Act, 1986 finds that complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2(two) years if the complainant satisfies the Ld. Commission that he/she has sufficient ground for not filing the case within 2(two) years. Moreover, in this instant case the cause of action has been continued and thus the above noted plea of the OP which has been pointed out in the written version cannot be accepted. On close scrutiny of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant against the OP. It is important to note that after going through the provision of Section 2(i)(d) of the Consumer Protection Act, 1986 it appears that this case is maintainable and according to the provision of Section 2(i)(d) of the Consumer Protection Act, 1986, the complainant is a consumer in the eye of law. So, the point Nos. 1 & 2 which have been adopted in this case are decided in favour of the complainant side. Moreover, in view of the reported decision of the case of “Experion Developers Pvt. Ltd. vs. Sushma Ashok Shiroor” which is reported in AIR2022SC1824 this District Commission is of the view that this complaint case is maintainable and this District Commission has jurisdiction to try this case.
Regarding points of decision No. 3 & 4 this District Commission after making scrutiny of the evidence given by the complainant side and OP which are nothing but the replica of the complaint petition and written version finds that there is no dispute over the issue that the complainant approached before the OP for purchasing the flat which has been described in the ‘B’ schedule of the complaint petition and has paid a sum of Rs.2,00,000/- by way of Cheque No. 118358 of ICICI Bank, Kadamtala Branch, Howrah dated 02/04/2014. It is also revealed that one agreement was also executed in between the parties. But, fact remains that the OP in spite of completion of the building and after development of ‘A’ schedule property has neither handed over the ‘B’ schedule property to the complainant nor executed and registered any Sale Deed. In this regard, it is the vital question whether non-delivery of possession of the flat in question even after taking advance money is a unfair trade practice and deficiency in service or not. In this regard, this District Commission after most respectfully reading of the judgment of Hon’ble Apex Court which is reported in AIR 2022 Supreme Court Page 1824 finds that failure to deliver possession of the apartment within time stipulated is undoubtedly unfair trade practice and deficiency in service and in that event the OP is duty bound to refund the advance amount which has paid by the complainant to the OP along-with interest @ 9% per annum. Similar view has been taken by the Hon’ble Apex Court in the case of “Gaziabad Development Authority vs. R. B. Sharma” which is reported in 2004(3)CPR92. Thus, it is crystal clear that the OP is duty bound to refund the advance money of Rs.2,00,000/- which has been paid to him by the complainant.
In the light of the observation made above, the points of decision No. 3 & 4 are also decided in favour of the complainant side.
In the result, it is accordingly,
O R D E R E D
That this Complaint Case being No. 348 of 2016 be and same is allowed on contest but in part against the OP.
It is held that the complainant is entitled to get refund of Rs.2,00,000/- along-with compensation of Rs.1,00,000/- from the OP, along-with interest @ 9% from the date of filing of this case.
OP is directed to pay the said amount within 45(forty five) days from the date of this order otherwise the complainant is given liberty to execute this order as per law.
In the event of non-payment/non compliance of the above noted direction the OP is also directed to pay and/or deposit Rs.5,000/- in the Consumer Legal Account of D.C.D.R.C., Howrah 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/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 Kr. Bandyopadhyay)
President, DCDRC, Howrah
