F I N A L O R D E R / J U D G E M E N T
Presented by: -
Shri Debasish Bondhyapadhyay, President.
Brief fact of this case: - This case has been filed under section 12 of C.P. Act, 1986 by the complainant against the OP stating that all piece and parcel of Bastu land measuring about 3(three) Cottah 7(seven) Chhatak 42(forty two) Sq. ft. with newly constructed building (G+5) standing thereon in Holding No. 3, Rashik Krishna Banerjee Lane, P.O. Salkia, P.S. Malipanchghora, Howrah – 711 106 is the subject matter of the present case and complainant is the owner and possessor of Bastu land by way of Deed of Partition being No. 1623 for the year 1979 measuring about 2(two) Cottah 10(ten) Chhatak 21(twenty one) Sq. ft. with old structure standing thereon in the same said Holding No. and address.
Complainant also stated that Complainant decided to erect a multistoried building upon his said property but due to paucity of money and lack of experience of the construction work the complainant along with another co-sharer have decided to erect a multi-storied building upon the said property with the assistance of a Developer/Promoter and to accomplish the aforesaid decision complainant approached before the OP/Promoter and OP/Promoter on acceptance of the approach of the Complainant agreed to raise a multistoried building upon the said property with own cost and to avoid the future dispute Complainant entered into a Development Agreement with the OP/Promoter on some terms and conditions which was executed and registered on 27/07/2017 at the office of ADSR, Howrah being No. 050204431 for the year 2017 and recorded in Book No. 1, Volume No. 0502-2017, Pages from 129695 to 129721 and also for smooth performance of construction work as per terms and conditions of the said Development Agreement dated 27/07/2017 Complainant also executed a Development Power of Attorney on the same day and that was registered on the very next day i.e. on 28/07/2017 at the office of ADSR, Howrah being No. 050204467 for the year 2017 and recorded in Book No. 1, Volume No. 0502-2017, Pages from 130086 to 130105.
Complainant further stated that as per Development Agreement dated 27/07/2017 Complainant will get 35% share out of total construction of the proposed building and on the other hand OP/Promoter will get rest portion of the share i.e. 65% share out of total construction of the proposed building and as per said Development Agreement OP/Promoter at first shall deliver the possession of said 35% share of the Complainant in the form of flats in a finished condition within one year from the date of execution of the said Development Agreement dated 27/07/2017 and thereafter, OP/Promoter shall transfer his allocated share of the proposed building by making several flats and it is also stated by the complainant that as per said Development Agreement dated 27/07/2017 Complainant shall get his 35% share in 2nd to 5th floor and ground floor of the proposed building and OP/Promoter shall deliver the same to the Complainant by making flat as per specification of the Complainant. Complainant again stated that as per Development Agreement dated 27/07/2017 OP/Promoter shall supply water by installing deep tube well and/or water from reservoir to be constructed on the ground floor as well as on the top roof of the proposed building and shall also install an electric motor pump for lifting water.
Complainant further stated that OP/Promoter being empowered by the said Development Agreement as well as by the said Development Power of Attorney dated 27/07/2017 OP/Promoter started construction work upon the said property in Holding No. 3, Rashik Krishna Banerjee Lane, P.O. Salkia, P.S. Malipanchghora, Howrah – 711 106 and has erected 5(five) storied building and has almost completed the said building but in spite of several requests from the end of the Complainant, OP/Promoter did not handover the possession of the allocated share of the flats in finished condition of the Complainant as well as OP/Promoter did not pay any heed for performing his duties as per said Development Agreement dated 27/07/2017 and finding no other alternatives Complainant sent a notice through his Advocate on 16/04/2019 under registered post with A/D with the request to deliver the allocated share of the Complainant in the proposed building as per Development Agreement dated 27/07/2017 within 7(seven) days from the date of receipt of the notice and as per track consignment the said notice has been delivered upon the OP/Promoter on 01/06/2019 but no effect has been received from the end of the OP/Promoter.
Complainant further stated that OP/Promoter has failed and intentionally neglected to provide the share of the Complainant and hence it is crystal clear that OP/Promoter is the guilty of unfair trade practice and deficiency of service and 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 complete the unfinished/undone work in the allocated share of the Complainant as well as in any other area in the proposed building and/or register the same in finished condition as per said Development Agreement dated 27/07/2017 and Complainant also prayed before this Commission to pay a sum of Rs.2,00,000/- only to the Complainant as compensation towards unfair trade practice and mental agony and Complainant further prayed a sum of Rs.50,000/- only to the Complainant as litigation cost.
Defense Case: - Notice of this case was duly served upon the OP. But, OP did not appear and no W/V has been filed from the end of the OP from the date of delivery, as such, the instant case proceeded ex-parte against the OP
Issue(s) / Point(s) for Consideration
On the basis of the pleading of the of the Ld. Advocate of the Complainant, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following point(s) for consideration: -
- 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?
Evidence on record
Complainant filed Examination-in-Chief supported by affidavit and filed BNA in support of his case.
Whereas OP did not appear in the instant case in spite of receiving notice and no other steps has been taken from the end of the OP.
ARGUMENT HIGHLIGHTED BY THE LD. LAWYER OF THE COMPLAINANT
At the time of argument Ld. Advocate for the complainant side lay emphasis on the evidence on affidavit filed by the complainant and also has given importance on the documents filed by the complainant side and pointed out that this case is maintainable, there is cause of action for filing this case, this case is not barred by limitation, this court has jurisdiction and the complainant is a consumer under the OP and for all these reasons the complainant is entitled to get relief which has been prayed in this case.
DECISION WITH REASON
All the points of consideration adopted in this case are taken up for discussion jointly as the issues and/or questions involved in these points of consideration are interlinked and/or inter-connected with one another. For the interest of deciding the fate of the above noted points of consideration this court has taken up the jurisdiction matter. Regarding this point this District Commission after close examination of the pleadings of the parties finds that the complainant has lodged the clam which is below Rs.20,00,000/- and it indicates that this District Commission has its pecuniary jurisdiction. Moreover, the complainant is a permanent resident of Howrah District and the Ops are also carrying business in the District of Howrah and so, the territorial jurisdiction is also lying with this District Commission. Now, the question is whether this case is barred by limitation or not? Relating to this matter this District Commission after going through the pleadings of the parties finds that the complainant has instituted this case within time and according to the provisions of Section 24A of the Consumer Protection Act, 1986 this case is not barred by limitation and the complainant has cause of action for filing this case. Another question which is cropped up in this case is whether the complainant is a consumer under the Ops or not? Relating to this matter this District Commission on close scrutiny of the pleadings adopted by the complainant and evidence on record finds that the complainant has paid advance money to the Ops at the time of execution of the Agreement for Sale which indicates that the complainant is a consumer under the Ops. More so, as per Section 11 of the Consumer Protection Act, 1986 the complainant is a consumer in the eye of law.
All these factors are clearly reflecting that the complainant has cause of action for filing this case, this court has territorial and pecuniary jurisdiction, this case is not barred by limitation and the complainant is a consumer in the eye of law.
Now, the question is whether complainant is entitled to get relief which has been prayed by the complainant in this case or not? Over this issue this District Commission after close examination of the evidence on record finds that the complainant has filed evidence on record which is nothing but a replica of petition of complaint. The evidence given by the complainant is also supported by documents. As the OP has not contested this case by filing written version or by filing evidence on affidavit, the evidence given by the complainant side has not been controverted and/or shakened in any way. There is no reason to disbelieve the unchallenged and uncontroverted testimony of the evidence given by the complainant side. On the basis of unchallenged and/or uncontroverted testimony of the complainant side this District Commission finds that the complainant has proved his case beyond any doubt. Moreover, it is the settled principle of law that Ops are duty bound to deliver possession of the apartment within stipulated time. In this regard, this District Commission after most respectful reading of the judgment of Hon’ble Apex Court which is reported in AIR2022 Supreme Court Page 1824 finds that failure to deliver possession of the apartment within stipulated time is undoubtedly unfair trade practice and deficiency of service and in that event the Ops are duty bound to refund the advance money which has been paid by the complainant to the Ops along with interest at the rate of 9% per annum. Considering all the above noted factors this District Commission finds that complainant is entitled to get compensation amount of Rs.1,00,000/- along with interest at the rate of 9% from the Ops.
In the result, it is accordingly,
O R D E R E D
That this Complaint Case being No. 186 of 2019 be and the same is allowed ex-parte but in part.
It is held that the complainant is entitled to get compensation of Rs.1,00,000/- along with interest at the rate of 9% per annum.
The complainant is also entitled to get a degree directing the OP to complete the unfinished/undone work in the allocated share of the complainant within 45 days from the date of this judgment.
Ops are directed to pay the said amount within 45(forty five) days from the date of passing of this judgment otherwise the complainant is given liberty to execute this award as per law.
In the event of failure/non compliance of the above noted award by the OP, he must pay 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 Bondhyapadhyay)
President, D.C.D.R.C., Howrah
