This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant that on 6.8.2016 the complainants entered into an agreement for sale in respect of purchase of a residential flat having an area of 723 sq.ft.(including 20% super built up area) with the opposite parties and it was agreed that the purchase rate of the said flat along with the proportionate share of common portion stands the total consideration of the said flat of Rs. 12,00,000/- only out of which Rs. 3,50,000/- is to be paid first as advance amount and the rest Rs. 5,50,000/- is to be paid part by part and the remaining consideration amount of Rs. 3,00,000/- is to be paid at the time of registration of the deed of sale and the complainants have paid the advance amount of Rs. 3,50,000/- to the opposite parties and the complainants further paid another Rs. 6,50,000/- to the opposite parties on different dates upon which the opposite party no. 2 issued receipt and the complainants shall be given possession of that schedule flat within 6.10.2016 after completing all the works by executing a registered deed of sale in favour of the complainants by taking the balance consideration of Rs. 3,00,000/- from the complainants and till now the complainants have already paid of Rs. 10,00,000/- to the opposite parties and the opposite parties have also charged Rs. 60,000/- for the extra work charges which was settled at Rs. 35,000/- and which has been paid by the complainants to the opposite parties. And after the expiry of the stipulated time the opposite parties did not complete the works of the said flat rather took time on various pleas and pretexts to complete the same and the complainant after waiting for a considerable period created pressure upon the opposite parties for completion of the flat and handing over the possession to them and the opposite parties upon such pressure somehow completed the flat in hasty manner and gave possession to the complainants on 25.01.2017 with the assurance that the deed of conveyance shall be registered and executed within a short span of time but the opposite parties have not given permanent connection of electricity rather have given connection from the sub-meter and there is no maintenance of water tank and no work was by the opposite parties done in super built up area and the opposite party did not give any bill for the work done in respect of the gate, tap etc. and after waiting for a considerable period the complainants once again approached the opposite parties to get registration by signing the deed of conveyance in favour of the complainants and the opposite parties assured the complainants to get the registration of the said flat within three months and after the expiry of three months the complainants once again on 2.3.2018 requested the opposite parties to get the registration of the said flat but the they paid no heed to the said issue. And having no response from the opposite parties the complainants sent a legal notice through their Advocate on 14.6.2018 requesting them to get the registration of the said flat in their favour by taking the balance amount of Rs. 2,00,000/- and making necessary arrangement for registration and signing on the deed of conveyance within 15 days from the receipt of that notice, otherwise the complainants would be at liberty to set the law in motion against the opposite parties and the cause of action of this case arose on and from 2.3.2018 at the first instance after the expiry of three months and aggravated on 14.6.2018 and is still continuing.
Complainants filed this complaint petition praying direction upon the opposite parties to assist for registration of the flat measuring 723 sq.ft. immediately in favour of complainants and to pay a sum of Rs. 1,00,000/- towards negligence and harassment and to pay a further sum of Rs. 50,000/- as mental agony. That apart the Opposite parties would pay a sum of Rs. 10,000/- as litigation cost.
The opposite party Nos. 1, 2 and 3 have contested the case by filing written version denying inter-alia all the material allegations as levelled against them and prays for dismissal of the instant case.
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainants appearing in the complaint petition and a total denial of the written version of the opposite parties.
The answering opposite parties filed evidence on affidavit which transpires the averments of the written version more or less. So, it is needless to discuss on that score.
Complainant and opposite parties filed written notes of argument. The evidence on affidavit and written notes of argument of both sides are taken into consideration for passing final order.
Argument as advanced by the agents of the complainants and the opposite parties heard in full.
From the discussion hereinabove, we find the following issues/points for consideration.
Issues/points for consideration
- Whether the complainants are the consumers of the opposite parties or not?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief/ reliefs, if any?
DECISIONS WITH REASONS
All the points are taken up together for easiness of the discussions of this case.
- In the light of the discussion hereinabove and from the materials on record, it transpires that the complainants are Consumers as provided by the spirit of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986 and the complainant herein are consumers of the opposite parties.
- Both the complainants and the opposite parties are residence/having their office addresses within the district of Hooghly. Considering the nature of claim as per prayer of the petition of the complaint of the complainant it appears that those are not exceeding Rs. 20,00,000/. So, this Forum has territorial /pecuniary jurisdiction to entertain and try this case.
3) As per allegations of complainants have paid advance amount of Rs. 3,50,000/- and also paid further amount of Rs. 6,50,000/- to the opposite parties on different dates and upon which op no. 2 issued receipt to the complainants for such payments (paragraph no. 4 of complaint petition). But while we are going through the photocopies of documents filed on behalf of the complainants it transpires that in a photocopy of a pad in the name of “Build Con Rainbow” wherefrom it is appearing that on 14.09.2016 one cheque (amount appears to be illegible) has been received by op no. 2. Further it shows that on 7.11.2016 op no. 2 received cash of Rs. 35,000/- and on 21.01.2017 op no. 2 has received a cheque amounting to Rs. 2,00,000/-. Besides that complainants did not file any other receipt. Putting our intelligence carefully and scanning meticulously the said photocopy of the said pad in the in the name of “Build Con Rainbow” we are unable to satisfy ourselves to the allegation of complainants that complainant paid Rs. 10,00,000/- on different dates to opposite parties. So, at the very basis complainants have failed to prove that complainants have paid altogether a sum of Rs. 10,00,000/- to the opposite parties on different dates. Though it appears in the said photocopy of the page of the said pad it shows that for extra job op no. 2 has received Rs. 35,000/- cash. Therefore, altogether the allegations of complainant in respect of payment appears to be a confusing one and not going to focus conclusively the actual amount of payment made by them to the opposite parties.
It may be noted that upon this petition of complaint complainants have prayed for direction upon opposite parties to assist for registration of the flat-in-question coupled with the prayer for damages for negligence and harassment and Rs. 50,000/- towards mental agony and a further prayer of Rs. 10,000/- towards litigation cost but, at the very basis complainants have failed to make clear conclusively that they have paid Rs. 10,00,000/- to the opposite parties in respect of the flat-in-question. Further it may be stated that once the complainants’ case becomes shaky at the very basis, it is very difficult to believe the same otherwise.
We also keep in mind that nowadays by using our hard earned money we, the middle class families try to purchase our pucca shelter for our protection but, at the same time we should keep in mind that in order to prove any allegation we have to substantiate convincing oral as well as documentary evidence to establish our claim. On that score though we can see that at least some amount complainants have paid to the opposite parties, but that does not matching with the allegation of amount of Rs. 10,00,000/- alleged to have been paid by the complainant to the opposite parties.
In a legal battle we should know that parties should come in clean hands and we are constrained to say that there is no clarity in respect of documentary evidence towards the payment of Rs. 10,00,000/- alleged to have been paid by the complainants to the opposite parties.
Lastly, we are of the view that the documentary evidence filed on behalf of the complainants is not appreciable in respect of alleged payment of Rs. 10,00,000/- made by the complainants to the opposite parties as per petition of complaint.
In view of the above discussion we are harboring to the conclusion that complainant have failed to prove their case and accordingly the instant case of the complainant is liable to be dismissed.
Hence,
it is
ordered
that the complaint case being no. 100 of 2018 be and the same is dismissed on contest against opposite parties.
There will be no order as to costs.
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.
