In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.

Case No. CC/250/2017.

Date of filing: 15/12/2017.                     Date of Final Order: 01/02/2024.

Smt. Champa Mondal,

w/o Sri Anirban Mondal,

of village. Noiti (Makalpara), P.O. Noiti,

P.S. Chanditala, Hooghly

And also residing at Flat no. 9,

Ground floor, South Subhas Pally (East),

Ward no. 13 under Dankuni Municipality,

P.O. & P.S. Dankuni, Hooghly, PIN. 712311.                                     …….complainant

  -vs 

Prasanta Kumar Paul,

s/o Late Santi Ranjan Paul,

proprietor of Aamar Baari,

r/o Mrigala, South Subhas pally (East),

Ward no. 13 under Dankuni Municipality,

P.O. & P.S. Dankuni, Hooghly, PIN. 712311.                                     ……opposite party

Before:            President, Shri Debasish Bandyopadhyay.

                          Member,  Debasis Bhattacharya.

                         Member, Babita Chaudhuri.

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 complainant was looking for a flat contacted the OP for availability of a flat where the OP had assured of availability of one flat measuring about 815 sq. ft. including 20% superbuilt up area in the said multi-storied building.  The total consideration money for the subject flat is Rs.1638158/- only.  It is pertinent to mentioned here that approximately Rs.2010 has been charged for per sq. ft.  The complainant states that the Op had proposed them to execute and register the subject flat in the month of October, 2013 and on the date of registration the OP will deliver possession to the complainant in respect of the subject flat.  The complainant being layman and on good faith she has agreed to execute Deed of Conveyance and registered the subject flat on 7^th October, 2013 which is recorded in Book-I, CD Volume 16, between pages 1326 to 1338, being no.05531 for the year 2013 in the office of Additional District Sub Registrar , ADSR, Janai West Bengal.  The complainant states that after registration of said Deed of conveyance dated.7.10.2013 the OP delivers possession in respect of the subject flat.

The complainant states that it is the duty of the Op to create and register an association of flat owner which he is ignoring from the very beginning inspite of several reminders from the complainant as well as others flat owners of the said multi-storied building.  The OP being a landowner as well as developer taking advantage of same and remains ignorant.  The Op has also trying to sell out the common areas to the third party illegally.  For this reason disputes are continuing between the Op and others flat owners.  The complainant states that she has planned to sell out the subject flat and purchase a residential flat and accommodation in the Howrah.  Therefore, she has measured the entire subject flat by a professional organization named M/s Architect Survey & Construction Centre of Village and Post office Baruipara, P.S-Singur, Hooghly who has affirmed that the total area of the subject flat is 789.60 sq.ft including super built up out of which total covered area is 658 sq.ft and 20% super built up area is 131.60 sq.ft.  The complainant states that she has immediately contacted the Op for such lesser sq. ft. in covered area as well as super built up area of the subject flat by 25.41 and asked for refund of Rs.45287.72/- and registration and stamp duty payable by him in that respect.  The OP straight away refused to refund the said amount.  The complainant met the Op several times but the Op misbehaved with the complainant.  On 22.8.2017 the OP did illegal activities to the complainants.  In this regard the husband of the complainant had lodged a complaint on 22.8.2017 before the Dunkuni Police Station and such complaint had been treated as FIR dated.24.8.2017 and charged the Op under several sections under the Indian Penal Code.  The complainant states that she is a layman and it is obvious of a layman to depend and trust on the trader at the time of purchasing any commodity and similar principle applies in the instant case.  The complainant states that she is not an expert and neither she knows the business tricks generally applied by the developer while selling a flat.  The complainant states that as she completely relied on the OP and trusted the measurement as told by the OP on good faith but taking advantage of good faith and trust of the complainant is a serious and gross deficiency of service as well as unfair trade practice on the part of the OP.  The complainant further states that the OP had promised to provide lift service to the flat owners in the said multi-storied building but after registration of the subject flat he has failed to install lift in the said multi-storied building.  Further the OP has failed to create an association among the flat owners of the said multi-storied building till date.  Be it mentioned here that the Op did not give possession letter to the complainant in spite of several request.

Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs. 55880/- with interest for providing lesser sq. ft. by 25.41 in both covered and super built up area within one month and to pay the quantum of stamp duty and registration fee in respect of 32.41 sq. ft. with interest  and to pay a sum of Rs.200000/-for deficiency of service and illegal activities which caused severe harassment and mental agony and to pay a sum of Rs.100000/- for litigation cost with interest @18% p.a.

Defense Case:-  The opposite party contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the OP raised multi storied building after taking sanctioned plan from the Dankuni Municipality and also fulfilling all the statutory obligations and gave the name of the building as Ämar Bari” situated at Mrigala Dakshin Subhas Pally P.O & P.S Dankuni, Dist-Hooghly and being aware of the said fact the complainant made contact with the OP and after verifying all the papers and documents as well as verifying the nature and quality of the construction and other works, they expressed their intention for purchasing a flat on the ground floor of the said building measuring super built up area 517 sq. ft having covered area of the said flat measured about 430.84 sq.ft and super built area @20% measuring about 86.16 sq.ft. at a consideration value of Rs.1040000/- but there was no such stipulation of providing any lift or elevator in the said building.    After finalization of the matter, the complainant very often used to come and stay on the building and look after the progress of work of the said multi storied building and after completion of the said flat the complainant expressed her desire to take possession of the said flat as well as to make registration of the same but she asked the Op to show the measurement of the flat and accordingly on their presence survey of the said flat was done and the deed plan was prepared by the said surveyor and being satisfied in all respect the complainant registered their flat on 7.10.2013 and immediately took possession of the same and never raised any point within one or two years regarding any deficiency of the said flat rather gave opinion which is stated in the w/v.  Be it mentioned here that when the said deed was prepared, the same was prepared at the instance of the complainant and in the said sale deed, there was some clauses wherein the common areas have been specifically mentioned but it has been specifically mentioned in the C schedule of the said deed of purchase but she also encumbered the common portion such as stair case, lobby common entrance by keeping cycle and motor bikes causing obstructions towards free egress and ingress of the said building and to that effect, while the OP raised objection to their such activities, the complainant became violent and threatened  the Op with dire consequence after forming a body flat owners same, common and vested interest and in such a situation, finding no other alternative, the OP filed Title Suit No.72772 of 2017 before the 4^th Court of Civil Judge (Jr. Divn) Serampore alongwith a prayer for an order of ad interim injunction and the Ld. Court vide order dated.4.9.2017 has been pleased to pass an order of status quo with respect to nature, character of any common area of the suit property in any manner for limited period and the said order of injunction is still continuing and after getting the writ of injunction in respect of the subject matter, the complainants instead of defending the said title suit has come before the commission with such false and vexatious grounds and that too after lapse of 4 years from the date of registration and taking possession of the subject flat by the complainants.  The alleged points for which the complainants have filed the above case was never been raised by them at any point of time but for creating pressure upon the OP the complainants have filed the above case with the help of a manufactured document.  Moreover, the after getting the copy of complaint of the Ld. Forum this OP went to make survey of the subject flat of the complainants but they did not allow doing the same.  This OP is also residing in the said building and just beneath the flat of the complainants having same area and same specification and being failed to measure the flat of the complainants, he with the help of one registered Surveyor of the Dankuni Municipality, made survey of his own flat as well as on the roof and found that the covered area of the said flat is same as it has been mentioned in the deed and as such the burden of proof lies upon the complainant to make a survey of the flat by an independent Surveyor of the Ld. court.  Be it further mentioned here that the order of injunction has been passed in the aforesaid title Suit on 04.09.2017 and the writ of injunction was served upon the complainants within a week thereof but suppressing the pendency of the above suit the complainants have filed this case with false and fabricated versions.  More over the flat owners association was also created and the bank account has been opened at the wish of the flat owners and the OP will inform the same at the time of trial.  Be it mentioned here that the flat owners were are maintaining association since long and this land owner had been paying a sum of Rs.600/- per month in the hand of the secretary and treasurer since long and the excess and this OP was nothing but a spectator.  This OP never made any deficiency in service or unfair trade practice with the complainants or with the other flat owners at any point of time rather he has given much more portion than that of the area mentioned in the deed of sale and accordingly the complaint filed by the complainant is liable to be dismissed with exemplary cost. So, the complainant is not at all entitled to the relief as prayer for.

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:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. 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 and denial of the written version of the opposite parties.

            The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have 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 even after appearance in this case and after filing written version, 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. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Dankuni, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 20 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 11 of the Consumer Protection Act, 1986 this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version 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 24A of the Consumer Protection Act, 1986 is very important and according to the provision of Section 24A 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 the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties 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) (d) of the Consumer Protection Act, 1986 it appears that this case is maintainable and according to the provision of Section 2 (d) 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 parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

After going through the material of this case record as well as evidence on record this district commission finds that the complainant side has adopted the plea that OP has provided a flat which is 22.52 sq. ft. less than the subject flat 517 sq. ft and so the complainant is bound to refund Rs.45287.72/- but on the other hand the OP has adopted the defence alibi that the OP has provided the proper flat with proper measurement and this matter has not been challenged by the complainant at the time of execution and registration of the deed of conveyance.  Over this issue both sides have relied on private Surveyor’s report which have been appointed by the complainant and OP separately.  In order to solve the dispute this district commission appointed Assistant Engineer, P.W.D Civil Serampore Sub-Division for conducting the commission and for submitting report.  In compliance of the direction of this District Commission the Assistant Engineer, P.W.D Civil Serampore Sub-Division Mr. Utpal Kumar Maity has submitted a report vide no.1041 dt.12.12.2022.  From the said report it is found that the complainer has received covered area of 657.83 sq. ft and super built up area 512.30 sq. ft which is supporting the case of the complainant.  Thus it is crystal clear that complainant is entitled to get relief in respect of points of consideration no.4 & 5.  So these two points of consideration are decided in favour of the complainant side.

In the result it is accordingly

ordered

that the complaint case being no.CC- 250 of 2017 be and the same is allowed on contest but in part.

It is held that the complainant is entitled to get Rs.45287.72/- from the OP alongwith interest @9% per annum from the date of filing of this case.  OP is directed to pay the said amount to the complainant within 45 days from the date of this final order.  Otherwise the complainant is given liberty to execute this award as per law.

As the complainant has caused delay in the matter of disposal of this case no order in respect of compensation and litigation cost is allowed.

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.