F I N A L O R D E R / J U D G E M E N T
Delivered by: -
Shri Debasish Bondhyapadhyay, President.
Brief 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 aboe alleging deficiency in service and unfair trade practice on the part of the OP.
Complainant entered into an Agreement for Sale on 22/09/2011 with (1) Smt. Mahamaya Nandi, (2) Smt. Sephali Das, (3) Smt. Shyamali Hazra, (4) Sri Samar Kumar Nandi, (5) Sri Amar Kumar Nandi, (6) Sri Sanjoy Nandi, (7) Sri Soumen Kumar Nandi, (8) Sri Sandip Kumar Nandi (all are the sons and daughters of Late Kanai Lal Nandi) & (9) Smt. Dipali Dawn, daughter of Late Kanai Lal Nandi, wife of Sri Narayan Chandra Dawn and also with the OP, Sri Shankar Kumar Das, being the promoter of the said building for purchasing a residential flat of 600 Sq.ft. in respect of 49, Shib Chandra Chatterjee Street, P.S. Bally, Howrah under Ward No. 11 of Bally Municipality.
The complainant as per Agreement for Sale paid Rs.81,000/- to the Promoter/OP on 14/10/2011 and on 22/11/2011 for booking the said flat and after few months of the said payment when complainant approached to the OP/Promoter to pay the second installment as per said Agreement for Sale OP/Promoter refused to accept the said payment and OP promised that he will receive the same after few months. But, 5(five) years passed away since the date of receiving the initial amount OP till now not accepting the installment in respect of the flat in question.
Thereafter, complainant visited the said construction site of the of the OP and found that the said flat has already been sold out to the other person after being completed by the OP and when complainant informed the OP about the said Agreement for Sale and requested him to allot the said flat as per commitment made in the said Agreement for Sale, OP refused to comply the same.
That after complainant issued notice through his Ld. Lawyer on 03/12/2015 and after serving of such notice OP neither gave any written reply nor took any steps towards non-delivery of the flat in question.
Finally 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 to the complainant a sum of Rs.7,20,000/- only towards invoice amount, to pay to the complainant a sum of Rs.81,000/- only along with a sum of Rs.24,000/- only towards damages and also to pay to the complainant a sum of Rs.50,000/- only along with interest @ 18% per annum as cost of legal proceedings of the present case.
Defense Case: - OP has contested the case by filing W/V denying each and every material allegations made by the complainant and contented inter alia that: -
In terms of Agreement for Sale dated 22/09/2011 OP/Developer completed the subject flat but complainant herein did not pay any single farthing in lien of the said Agreement for Sale rather complainant did not meet the OP/Developer though OP/Developer has fulfilled all the clause as per said Agreement for Sale and thus OP/Developer is entitled to forbid the whole money rather to get up-to-date interest of the aforesaid sum of Rs.2,00,000/- only.
OP/Developer also stated that though the agreement has been done by and between the parties but the clause of the agreement for payment of the amount violated by the complainant itself and complainant did not pay any further amount except the earnest money rather OP/Developer fulfilled all the terms and conditions as per said Agreement for Sale and OP/Developer repeatedly asked the complainant to pay the amount as per said Agreement for Sale. But, complainant without making any response filed the instant case before this Commission for redressal to humiliate and harass the OP/Developer.
OP/Developer further stated that no notice through Ld. Lawyer of the complainant dated 03/12/2015 has been received by the OP/Developer and as such, there is no scope to give any reply by the OP/Developer.
OP/Developer in the very outset said that before filing of the instant case complainant filed the grievances before the Consumer Affairs Department, 11/1, Mirza Ghalib Street, Kolkata – 87 against the present OP and on 19/02/2016 both the parties appeared and stating their grievances and after submission made by both the parties the Ld. Deputy Assistant Director of Consumer Affairs Department has passed a written order vide Complaint Index No. 140/CAD-Rest/15/16 and the gist of the said meeting was that complainant was agreed and wanted to get the flat in the present market value and OP/Developer already inspected and collected the assessment slip of current valuation of the flat in question and complainant always suppressing the fact of dues regarding not delivering the flat in question and as such, there is no deficiency in service on the part of the OP and the instant case is liable to be dismissed with exemplary costs.
Issues / Points 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?
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 OP.
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 and filed reply against the questionnaire of OP and finally complainant filed BNA.
Whereas OP also in support of his case filed Examination-in-Chief supported by affidavit and also filed reply against the questionnaire of complainant but did not file BNA.
Over the issue of the maintainability of this case, limitation matter and cause of action matter this District Commission after going through the pleadings of the parties observed that OP has not filed any separate application on the ground that this case is not maintainable. However, all the above noted points have been alleged in the written version. For the purpose of deciding this matter this District Commission after going through the provisions of Section 11 of the Consumer Protection Act, 1986 finds that this District Commission has the jurisdiction to try this case. More so, the claim of the complainant is below Rs.20,00,000/- which indicates that the pecuniary jurisdiction of this District Commission is also lying.
In connection with the maintainability of this case, limitation matter and cause of action matter, this District Commission after going through the pleadings of the parties finds that in spite of appearance in this case OP has not filed any BNA and as such, the OP has not fully contested this case. For the purpose of deciding this matter this District Commission after going through the provisions of Section 24A of the Consumer Protection Act finds that this 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 grounds for not filing the case within 2(two) years. Moreover, in this instant case, the cause of action has been continued and thus the plea adopted by the OP in the written version that this case is barred by limitation, cannot be accepted. On close scrutiny of the pleadings of the parties it transpires that there is cause of action for filing this case by the complainant against the OP. In this regards it is very important to note that after going through the provisions of Section 2(i)(d) of the Consumer Protection Act, 1986 it reveals that this case is maintainable and according to the above noted provisions of the Consumer Protection Act, 1986 the complainant is a consumer in the eye of law. So, the points of consideration 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. In connection with the point of limitation, this District Commission after going through the provisions of Section 24A of the Consumer Protection Act, 1986 finds that this complaint case can be entertained by this District Commission.
Regarding the points for decision Nos. 3 & 4 this District Commission after making scrutiny of the evidence given by complainant side and OP which is nothing but a 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 schedule of the complaint petition. It is also admitted fact that the complainant has paid Rs.81,000/- to the OP/Promoter. It is also revealed on the evidence on record that one Agreement for Sale was executed in between the parties. But fact remains that OP in spite of completion of the building and after development of the properties has neither handed over the suit property to the complainant nor executed and registered any Deed of Sale in favour of the complainant side.
In this regard, it is vital question whether non-delivery of possession of the flat in question even after taking advance money is an unfair trade practice or deficiency of service or not? In this regard, the District Commission after most respectfully reading the judgment of Hon’ble Apex Court which is reported in AIR2022 Supreme Court Page 1824 finds that failure to delivery possession of the apartment within stipulated time is undoubtedly unfair trade practice and deficiency of service and in that event the OP is duty bound to refund the advance amount which has been paid by the complainant to the OP along with interest @ 9% per annum. Similar view has also been adopted 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 OP is duty bound to refund the advance money of Rs.81,000/- only which has been paid to him by the complainant.
In the light of the observations made above, the points of decision Nos. 3 & 4 are also decided in favouf of the complainant side.
In the result, it is accordingly,
O R D E R E D
That the Complaint Case being No. 339 of 2016 be and same is allowed on contest but in part against the OP.
The complainant of C. C. Case No. 339 of 2016 is entitled to get refund of Rs.81,000/- only along with interest @ 9% per annum from the date of filing of this case and complainant is also entitled to get compensation of Rs.20,000/- only from the OP.
OP is directed to pay the said amount within 45(forty five) days from the date of this order otherwise complainant is given liberty to execute this order as per law.
In the event of non-payment/non-compliance of the above noted directions the OP is also directed to pay and/or deposit Rs.5,000/- only in the Consumer Legal Aid 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 at 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
