Shri Debasish Bandyopadhyay,  Hon’ble President.

Brief fact of this case:-  This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainant describing that the opposite party is the owner of the property comprised in L.R. Dag No. 2096 within L.R. Khatian No. 2883, Mouza Mirzapur Bankipur, J.L. No. 63, P.S.-Singur, Dist-Hooghly but the property was originally Sali in nature and the opposite party converted into bastu and thereafter the opposite party converted into bastu and decided to develop the property to make multi storied building.  The complainant also states that opposite party approached the petitioner to sale out flat measuring about 600 sq. ft. in the 2^nd floor and the petitioner accept the offer and agreed to purchase the said flat and an Agreement of contract of sale was made between them on 23/12/2016 and Rs. 7,50,000/- total value @ Rs.1250/- per sq. ft. was fixed for the said flat and the petitioner paid Rs.2,00,000/- vide cheque no. 045624 dt. 23/12/2016 of Allahabad Bank and by NEFT on 27/05/2018 The petitioner also states that the cheque and transactions would be made in the name of Menoka Traders as because the opposite party is the proprietor of Menoka Traders but the opposite party did not complete the flat with the stipulated period and however the petitioner on good faith paid Rs. 20,000/- in cash on 27/05/2018 which is already stated earlier and the opposite party did not take any initiative to complete the flat as a result the complainant again sent a letter on 17.3.2019 requesting the opposite party to return the advance amount with banking interest and lastly on 3.5.2019 sent a notice to the opposite party through his Advocate and after receipt of this notice the opposite party informed the complainant through phone that opposite party will refund money within short period but opposite party did not refund the money or deliver the flat and last payment was made on 27.5.2018 since then the opposite party is not delivering the flat or refund the money inspite of repeated request of the complainant though the complainant is ready to purchase the flat or refund advance money and the cause of action arose on and from 27.5.2018 last payment of Rs. 20,000/- in cash and 3.5.2019.        

            Complainant filed the complaint petition praying direction upon the opposite party to deliver the flat and to pay sum of Rs. 4,20,000/- with bank interest and to pay a sum of Rs. 1,00,000/- for harassment and mental agony and to pay a sum of Rs. 50,000/- for litigation cost.

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 has 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. Argument as advanced by the agents of the complainant heard in full. The evidence on affidavit and written notes of argument of complainant are to be taken into consideration for passing final order.

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 contested this case due to the reason best known to them. Under this position this District Commission has passed the order of ex parte hearing of this case. On this background it is also mentionworthy 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 opposite party is a resident of Singur, Hooghly which is 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. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, 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 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 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) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to this 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 connected with the question as to whether there is any deficiency in service on the part of the opposite parties or not and the point no. 5 is related with the question whether the complainant is entitled to get any relief in this case or not? These two points 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 the above noted two points of consideration, there is necessity of making scrutiny of the evidence on affidavit filed by the complainant and there is also urgency to examine the documents which have been filed by the complainant. In this matter this District Commission after going through the evidence on affidavit filed by the complainant finds that the complainant has categorically described his case in the evidence on affidavit and he has not left any stone unturned. Moreover, the evidence on affidavit filed by the complainant has not been challenged and/ or interrogated by the opposite parties by filing questionnaires or interrogatories. In other words it can be said that the evidence given by the complainant remains unchallenged and uncontroverted. There is nothing to disbelieve the unchallenged and uncontroverted evidence given by the complainant. In this regard it is also very important to mention that the opposite parties have not filed any evidence on affidavit in support of their case and/ or to disprove the case of the complainant side. This factor is also reflecting that the evidence given by the complainant has not been shakened in any way. Over these issues it is the settled principle of law is that non execution of sale deed is a deficiency in service.  These legal principle has been observed by National Consumer Disputes Redressal Commission, New Delhi and it is reported in II (2022) CPJ 168(NC). Similar observation has been adopted by Hon’ble State Commission, West Bengal and it is reported in II (2022) CPJ 50 (WB).  This legal principle has also been adopted by Hon’ble State Commission, Madhya Pradesh and it is reported in II (2022) CPJ 89 (MP). The evidence given by the complainant goes to show that there is deficiency in service on the part of the opposite parties and the complainant is entitled to get the remedies which she has prayed in this case. Thus, the above noted two points of consideration are also decided in favour of the complainant side.

It appears from the evidence on record as well as from the pleading adopted by the complainant that complainant is not now interested for execution and registration of the sale deed but claiming refund of the entire amount of Rs. 6,50,000/- along with interest, compensation and litigation cost.

Now the question is whether refund which was claimed by the complainant due to the fault of the opposite parties is permissible in the eye of law? Over this issue it is observed by the Hon’ble Apex Court in the case of Ghaziabad Development Authority vs. R.B. Sharma  and it is reported in 2004 (3) CPR 92 that refund of consideration money paid by complainant is refundable. Similar views has been adopted by Hon’ble Apex Court in the case of Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor which is reported in AIR2022SC1824.

Thus it is crystal clear that complainant is entitled to get refund of the amount of Rs. 4,20,000/- and he is also entitled to get interest @ 9% per annum from the date of filing of this case and he is also entitled to get compensation of Rs. 20,000- (this amount has been fixed by considering the facts and circumstances of this case) for deficiency of service op opposite party side and complainant is also entitled to get litigation cost of Rs. 5000/-.

In the result it is accordingly

ordered

that the complaint case being no. 77 of 2019 be and the same is allowed ex parte but in part.

It is held that complainant is entitled to get refund of the amount of Rs. 4,20,000/- and he is also entitled to get interest @ 9% per annum from the date of filing of this case and he is also entitled to get compensation of Rs. 20,000/- and complainant is also entitled to get litigation cost of Rs. 5000/-.

            Opposite parties are directed to pay the said amount to the complainant within 60 days from the date of this order otherwise complainant is given liberty to execute this order as per law.

            The opposite parties 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 in the default of the carrying out the judgement/ final order of this District Commission passed in this case.

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.