Presented by: -
Shri Debasish Bandyopadhyay, President.
This complaint case has instituted by the complainant against the O.ps. for passing direction to handover the possession of “B” schedule flat and to pay compensation and litigation cost.
Fact of this case
Case of the complainant - The case of the complainant in bird’s eye view is that the property comprised at holding no.196/1 Netaji Subhas Road, P.S. Bantra, District Howrah was originally belonged to Indrani Hazra, Smt. Ila Manna and others and the said owners entered into Development Agreement with O.p. no.1 for construction of a multi-storied building as per sanctioned plan of Howrah Municipal Corporation and the said Development Agreement was registered and one Power of Attorney was also executed in favour of O.p. no.1. As per case of the complainant side Smt. Ila Manna entitled to get 180 Sq.ft built up are of the “A” Schedule property which has been described in page no.7 of the said agreement and during construction of the said building said co-sharer Smt. Ila Manna expired on 09/09/2015 leaving behind her husband and only daughter as beneficiary and legal heirs who are the complainants of this case. It is alleged that the O.p. no.1 after completion of construction of the said multi-stored building handed over the scheduled flat out of “ A” schedule property to the other co-sharers such as Indrani Hazra, Sharbari Hazra etc but the share of deceased Smt. Ila Manna which has been described in the “B” schedule property has not yet been handed over for which the complainants had sent lawyer’s notice to the O.p. no.1 but in spite of said receiving notice the O.p. no.1 did not hand over the said flat/”B” schedule property to the complainants. It is submitted that the O.p. no.1 has willfully neglected to hand over the said flat to the complainants and violated the terms and conditions of the Development Agreement and as such there is deficiency of service and for that reason the complainants have suffered mental pain and agony and for all these reasons the complainant has instituted this case against the O.ps. as per prayer of the plaint.
Defense Case - The O.p. no.1 after receiving notice appeared in this case and has filed W/V where the O.p. no.1 has denied each and every allegations of the complainants which have been described in the complaint petition. This specific case of the O.p. no.1 that one title suit being No.483/2016 is pending before the Second Court of Ld. Civil Judge (Sr. Div.) at Howrah and for that reason the O.p. no.1 has failed to deliver the “ B” Schedule property to the complainants. It is further submitted that the O.p. no.1 handed over the possession of the flat to Smt. Ila Manna since deceased who subsequently handed over the same in favour of Sandip Hazra and for all these reasons the O.p. no.1 has prayed before this District Commission for dismissing this case.
Points of Consideration
On the basis of the pleadings of the parties this District Commission for arriving at just and proper decision of this case and also for purpose of deciding the fate of this case is going to adopt the following points for consideration :-
- Whether the complainants are a consumer under the OPs as per provisions of Consumer Protection Act, 1986 or not?
- Whether there is a gross negligence or deficiency of service on the part of the OPs or not?
- Whether the complainants are entitled to get relief as prayed before this District Forum / Commission or not?
Evidence on record
In this instant case the complainants in order to prove the complaint case have submitted evidence on affidavit of the complainants and against the said evidence on affidavit the OPs have filed interrogatories and the complainants have also given reply against the said interrogatories.
On the other hand, the OPs in order to deciding the case of the complainants has submitted evidence on affidavit and against the said evidence on affidavit the complainants have filed interrogatories and the OPs have also given reply against the said interrogatories.
Argument highlighted by the parties
In course of argument the complainants side, OPs have filed Brief Notes of Argument and in addition to said argument the Ld. Lawyers of both sides also have highlighted their verbal submission.
Decision with reason
For the interest of convenience of discussion and as the questions involved in the above noted points of consideration are interlinked and or interconnected with one another but all the points of consideration are clubbed together and taken up for discussion jointly.
In the matter of arriving at just and proper decision in connection with above noted points of consideration and also for deciding the fate of this case there is urgent necessity of making scrutiny of the material of this case record and there is also urgency of making scrutiny of the evidence on record. In this regard, this District Commission after going through the evidence on record and also after making scrutiny of the pleadings of the parties finds that both the complainants and O.ps. are the resident of Howrah District and O.p. no.1 is carrying on business within the District of Howrah. This factor is clearly reflecting that this District Commission has territorial jurisdiction to try this case and the total claim of the complainants is far below then Rs.20,00,000/-. This matter is clearly reflecting that this District Commission has its pecuniary jurisdiction to try this case.
Now the question is whether complainants are consumer under the O.p. no.1 or not. In this regard it is important to note that Smt. Ila Manna predecessor of the complainants and O.p. nos.2 to 5 are the co-sharers of suit property i.e. “A” Schedule property and they entered into Development Agreement with O.p. no.1 which is subsequently registered and one General Power of Attorney is also executed and registered. But fact remains that in course of Development of said property Smt. Ila Manna expired leaving behind the complainants as legal heirs/ beneficiaries. It is revealed from the said Development Agreement that as per clause 1.10 of page 7 of the said Development Agreement Smt. Ila Manna was entitled to get the “ B” Schedule flat measuring about 180 Sq. ft. and after the demise of said Ila Manna the complainants are entitled to get the said flat. As per defence case adopted by O.p. no.1 he handed over the possession of “B” Schedule flat to Smt. Ila Manna during her life time but in this regard the O.p. no.1 has failed to produce and prove any documents. So, this defense alibi adopted by O.p. no.1 cannot be accepted. Thus, it is crystal clear that as legal heirs/beneficiaries of deceased Smt. Ila Manna the complainants are entitled to get this possession of said “B” Schedule property. In this regard the O.p. no.1 has failed to submit any document to show that the said “B” Schedule property has been handed over to the complainants. In this regard the O.p. no.1 has taken the defense of alibi that Civil case is pending for which the O.p. no.1 has failed to deliver the said flat. In this regard it is important to note that the O.p., no.1 has failed to make out his case that there was/is a restraining order of the Civil Court in the matter of handing over the said flat. The O.p. no.1 has failed to produce any documents to show that there is an injunction order in the said Civil Case. The O.p. no.1 has also failed to prove that the deceased Smt. Ila Manna or the complainants are the parties of the said Civil Case. In the absence of any prove the above noted defence plea of O.p. no.1 cannot be accepted. In other words it can be said that the complainants are entitled to get the “B” Schedule property from O.p. no.1.
In the result,
it is accordingly,
O R D E R E D
That this Complaint Case being No. 261/2017 be and the same is allowed on contest but in part against O.p. no.1 and it is dismissed against O.p. nos.2 to 5.
It is held that the complainants are entitled to get the “B” Schedule property from O.p. no.1 and for that reason the O.p. no.1 is directed to hand over the possession of “ B” Schedule property in favour of the complainants within 2(two) months from the date of this Judgment. It is also held that the complainants are also entitled to get compensation of Rs.30,000/- and litigation cost of Rs.10,000/- from O.p. no.1 and O.p. no.1 is directed to pay the said amount within 2 months from the date of this Judgment.
In the event of failure of the O.p. no.1 to comply this award, the complainants shall get liberty to execute this award as per law.
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
(Debasish Bandyopadhyay)
President
D.C.D.R.C., Howrah
