Presented by: -

                   Shri Debasish Bandyopadhyay, President.

Complaint Case No.101/2018

This case has been filed by the complainant for passing direction to the OPs to refund the amount of Rs. 1,00,000/- and to return the Cheque being No. 522757 dtd. 21.10.2017 of SBI, Kalibabur Bazar Branch and for handing over  possession  letter and also to deliver possession  of common  car parking place  alongwith compensation and litigation cost.

Case of the complainant -   The  case of the complainant which is unearthed  from the petition of complaint  filed by the complainant  in bird’s eye view  is that the complainant  being an intending purchaser purchased a residential flat  from the OPs / Promoters at Holding No. 74, Netaji Subhas Road, P.S.  & Dist. Howrah  which has been described  in the schedule  of the complaint petition  at total consideration money of Rs. 17,85,000/- and the complainant at the time of booking the flat  paid Rs. 2,70,000/- on 17.04.2017 and thereafter entered into an Agreement  for Sale with OPs / Promoters  on 12.05.2017 and thereafter  Deed of Sale  was executed  and registered  on 10.08.2017 in respect of that residential flat   but at the time of registration  the OPs demanded Rs. 1,91,925 as Service Tax and GST charges other than total consideration money  in respect of the said flat and the OPs told the  complainant that without Service Tax  and GST charges  registration could not be possible and then for solving the problem  the complainant  on 10.08.2017 issued  2 (two) cheques  in favour of the OPs and out of which 1^st cheque was Rs. 1,00,000 vide Cheque No. 908850 of SBI, Kalibabur Bazar Branch  and 2^nd cheque was  of Rs. 91,925 vide  Cheque No.  522757 dtd. 20.10.2017 of same Branch and out of above noted 2(two) cheques the cheque  of Rs.1,00,000/- was encashed  by the OPs but in respect of the 2^nd cheque  the complainant  asked the bank for stop payment .  It is pointed out that after registration of the said  flat  and delivery of possession the OPs had neither given possession  letter nor had handed over  any key to the complainant  for using  the common right  of two wheeler parking facilities  of the said flat.  It is alleged that soon thereafter the complainant  came to know that GST charges are not required  for the said flat and so on 25.09.2017 he had  sent a legal notice  to the OPs for refunding  Rs. 1,00,000/- to him and also requested them  to send  back the original post dated cheque being No. 522757 of Rs. 91,925/- and also requested the OPs to hand over the key for using common right  of parking place facility but after receiving  this said letter the OPs had sent  a reply letter to the complainant on 10.10.2018 denying all claims  of the complainant and demanded  maintenance charges.  According to the case of the complainant  he had  sent money order vide No. 140201180127130167 dtd. 27.01.2018 of Rs. 2,400/-  for the month of August , 2017  to January 2018 but the OPs  refused to accept the same.  It is submitted that the  dispute arising between complainant and OPs  is a consumer  dispute under the provisions of Consumer Protection  Act, 1986.  It is further alleged that the OPs by way of malpractices harass the complainant which is in violation  of human rights  and dignity  and also   hampered  the work of the complainant.  It is further stated that the complainant  has a good cause of action  for filing this case against the OPs as per provisions of Consumer Protection Act, 1986 and  for all these reasons  the complainant has instituted  this case  against the OPs as per prayer of the complaint petition.

Defense Case 

The OPs contested  this case by filing W/V after appearing in this case and denied all the material allegations  leveled  against the OPs .    The specific  defence case  of the OPs in a nutshell is that the Deed of Sale  executed  in between  complainant  and OPs has been admitted the payment of service charge to the OPs.  It is pointed out  that due to lack of funds  the payment of GST charges  to the OPs  the complainant  executed  Deed of Declaration  wherein the complainant  has practically admitted the  payment  of calculated  GST charges  of Rs. 1,91,925/- to the OPs  and in that respect  the complainant  issued to post dated cheques  out of which 1^st cheque was amounting to Rs. 1,00,000/- and the 2^nd cheque was of Rs. 91,925/- and the OPs on good faith accepted  the Deed of Declaration  executed by the complainant  and the OPs  also accepted  two post dated  cheques  which were  given in closed envelope .  It has been alleged that it is matter of surprising to the OPs that the complainant practice fraud upon the  Ops by giving them unsigned cheque.  It has further been pointed out that the complainant is using common  space and also used to  keep two wheeler  and by filing this case the complainant is denying his own averment made in the Deed of Declaration.  It is submitted by the  Ops that the complainant has been using  the common facilities of the  said building  which has  been contacted  by the complainant  in the Deed of Sale.  It is alleged  that the complainant has not come before  this District Commission in clean hand and so the complainant is not entitled to get any relief  in this case.   For all these reasons the complainant  has prayed before  this District Commission for dismissing this case with heavy cost.

Points of consideration  -  On the basis of the pleadings  of the parties this District Commission for the interest of proper and complete adjudication  of this case  and also for the purpose  of arriving at just and proper decision in this case is going to adopt the following points of consideration :-

1. Is this case maintainable  in present form and in the eye of law?
2. Has the complainant cause of action in the matter of filing this case ?
3. Is the complainant consumer under the OP or not?
4. Has this District Commission jurisdiction to try this case or not?
5. Whether the complainant  is entitled to get the direction upon the OPs for handing over possession letter  and to deliver possession of the common space  and also for getting compensation and litigation cost or not?
6. To what other relief / reliefs  is the complainant  is entitled to get in this case?

Evidence on record  -  In order to prove this case the complainant  has filed  evidence on affidavit  and against the said evidence on affidavit  the OPs has filed  questionnaire and against the questionnaire  the complainant has given reply .

In order to disprovethe case of the complainant the OPs have filed evidence on affidavitand the complainant side has filed interrogatories against the said evidence on affidavitand thereafter the Ops had given reply against the said interrogatories.

Argument highlightedby the parties  -  In course of argument Ld. Advocates of the complainant  side & OPs  have filed  Brief Notes on Argument and in addition to the said Brief Notes on Argument the complainant side and OPs also  have  highlighted  their verbal submission in this case.  In course of  verbal argument Ld. Advocates of both sides have given  emphasis  on the oral and documentary  evidence  .

Decision with reason

The first 4 (four) points of consideration are very vital issuesand so these issues are required to be disposed of at first.But 1^stpoint of consideration is related with the question of maintainability of this complaint case, the 2^nd point of considerationis connected with the questionof cause of action and3^rd point of considerationis involvedwith the matter whether the complainant is a consumerunder the OPs or not and the 4^th point of considerationis connected with the question whether this District Commission has jurisdiction to try this case or not .

For the purpose of arriving at just and proper decisionof this case, this District Commissionfinds that the complainant side for the purpose of purchasing the flathas paid the consideration money and initially Agreement for Salewas executed and registeredand thereafterthe Deed of Conveyancein respectof the said flat has also been executed and registered .The OPs have accepted the consideration money and also have delivered possession of the suit flat which has been describedschedule in the complaint petition to the complainant.All these factors are going to show that the complainant is a consumer under the OPs and there is relationshipof consumer and service providerin between complainantand OPs and for that reasonthis case is maintainablefor its present formand in the eye of law.Moreover, the complainantin spite of getting possession of the said flatand also in spite of execution and registration of the Deed of Conveyancehas allegedthat the complainantis not getting possession of the car parking space althoughin the Deed of Sale it has been assertedby the OPs to provide this facility to the complainant.This matter is clearly highlighted that the complainanthas cause of action in the matter of institutionof this complaint case.From the Cause Titleof the complaint petition it is found that the complainantis a resident of Howrah P.S. jurisdiction and OPs are also carrying on businessunder the jurisdictionof Howrah P.S..These two factorsare reflecting that there is territorial jurisdiction of this District Commission for trying this case.Moreover, the claim of the complainantwhich has been highlightedinthis complaint caseis far below of Rs. 20,00,000/- and so this District Commission has its pecuniary jurisdiction to try this case.

A cumulative consideration of the above noted discussiongoes to show that this complaint case is maintainablein its present formand in the eye of law, this District Commission has its jurisdictionto try this case, there is cause of action for complainant to institutethis case against the OPs and the complainant is a consumer under the OPs.Thus , all the above noted4 (four) points of considerationare decided in favour of the complainant side.

In connection with the point of consideration No. 4 and point of consideration No. 5after going through the evidence on recordand also after making scrutiny of the documentsfinds that it has beenadmittedby both sides that thesuit flat which has beendescribedin the scheduleof the complaint petition has been registered and the OPs has given possession of the suit flat in favour of the complainant.But it is very important to note that in order to establishthe factof showingpossession in favour fo the complainant no cogent document has been produced and proved by the complainant side.It has been alleged by the complainant that the OPs have not given possessionletterand also have not delivered possessionof the car parking place .But in this regardthis District Commission should not be issued of amount on the point that the complainant has not prayedanyLocal Inspection Commissionor Survey Passed Commissionbefore this District Commissionto establishthe fact that the complainantis in possession of the suit flatand the OPs have not yetdeliveredpossession of the car parkingplaceto the complainant.In the absence of such evidence there is no scopebefore this District Commission to come to the opinion that the OPs have not deliveredpossession of the parking place.In this case the complainant sidehas claimedfor refundingthe amount of Rs. 1,91,925/- which has been chargedby the OPsas Service Tax and GST charges.Over this issue the OPs have categorically stated that there is urgency of payment of Service Tax & GST chargesbeforeregistration.In this regard the complainant had the opportunityof placing this mater before the GST Authority for getting answer whether complainantis liableto pay GST Charges to the OPs at the time of execution and registration of the Deed of Conveyance or not but the complainanthas not followed this process.All these factorsare clearlyreflecting thatthe complainant has failed to make out his case in respect of points of consideration Nos. 4 & 5 which arevital issuesfor determination of fate of this complaint case.

In the result, it is accordingly,

ORDERED

            That this Complaint Case being No. 101/2018 be and the same is   dismissed  on contest.  No order is passed as to cost.

            The parties of this case are entitled to get a free copy of this    judgment as early as possible.

Let this judgment be uploaded in the official website of this District Commission immediately.

 Dictated & corrected by me

                President