FINAL ORDER/JUDGMENT

Presented by:

Shri Debasish Bandyopadhyay,  President.

 Brief facts of the case: This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that  by an agreement for sale dated 10.3.2019 executed by the op who agreed to sell a residential flat measuring about 620 sq.ft.(super built up area) being flat no.-G/3 on the third floor of the building known as ADDRIZA Apartment, situated at 22, College Road, P.O-Nabagram, within the ambit of Nabagram gram panchayet, under P.S-Uttarpara, Dist-Hooghly, Pin-712246 together with proportionate, undivided, impart able share or interest in the land just underneath to the said building, being comprised in R.S dag no.43, under R.S. Khatian no.106 corresponding to present L.R dag no.172, under L.R Khatian no.584, lying at Mouza-Khardo Bahera, hereinafter collectively called and referred to as the said flat to the complainant at or for the price and consideration of Rs.992000/- only.

Before entering into the agreement for sale, the complainant herein paid the op a sum of rs.40000/- only in cash on 5.3.2017 vide money receipt no.1269 and further paid the op a sum of Rs.290000/- only in cash on 10.3.2017 vide money receipt no.1270, totaling a sum of Rs.330000/- only and at the time of execution of the said agreement for sale, the complainant again paid the op a sum of Rs.40000/- only by an a/c payee cheque no.695566 dated 5.3.2019 of state bank of India, Mahesh branch vide money receipt no.1629 dated.5.3.2019 and the complainant further paid the op a sum of Rs.290000/-only by an a/c payee cheque no.695569 dated.10.3.2019 of State Bank of India, Mahesh Branch but the op intentionally and deliberately did not issue any money receipt against the said cheque with an ill motive to cheat the complainant.  The said cheque being no.695569 dated 103.2019 of Rs.290000/- was duly en-cashed in the account of the op in time.

At the time of execution of the said agreement for sale, the complainant asked the op, as to why the amount of Rs.330000/- only paid by him in cash is not mentioned or written in the said agreement for sale and in reply to that, the op told the complainant that as per the present provision of law no cash transaction is allowed in purchasing an immovable property valued more than Rs.200000/- only and that is why, the said amount is not mentioned in the said agreement for sale and at that time the op assured the complainant that he will refund the said amount soon but up till this date the op did not refund the said amount to the complainant.  Such act of the op is tantamount to a crime of cheating and the op is trying to cheat the complainant by not refunding said amount of Rs.330000/- only to the complainant till date.  The complainant on several times requested the op to refund the said amount to him but the op did not pay any heed to the said request of the complainant till date.  Later the op assured the complainant that he will adjust the said amount with the price and consideration amount of the said flat.  The complainant accepted the said uttering of the op absolutely on good faith.

The op took a total sum of Rs.660000/- only till date towards the part payment out of the total consideration amount of Rs.992000/- only. As per the said agreement for sale, the op agreed to deliver the possession of the said flat to the complainant by 15^th day of August, 2019 but up till this date the op did not deliver the possession of the said flat to complainant in spite of complainant’s readiness to pay the balance amount of Rs.332000/- only and thus the op violated the terms and conditions of the said agreement for sale.  The complainant on several times requested the op to deliver the possession of the said flat in his favour after taking the balance amount of Rs.332000/- only from him but the op did not pay any heed to the said request of the complainant till date and did not deliver the possession of the said flat to the complainant till date and recently the complainant came to know from a reliable source that the land owners of the concerned land herein revoked the power of attorney dated 26.8.2013 being no.IV-664 for the year 2013 of the office of the Additional District Sub-Registrar of Serampore, district-Hooghly vide a deed of revocation of general power of Attorney dated 24.7.2017 being no.IV-74 for the year 2017 of the office of the Additional District Sub-Registrar of Uttarpara, Dist-Hooghly.  Therefore, it can be surely said that the op is no more in a position to complete the flat in question and to deliver the flat to the complainant herein.3

The op deliberately and willingly concealed the said fact of revocation of power of attorney from complainant with intention to cheat the complainant and took a sum of Rs.40000/- only on 5.3.2019 and further a sum of Rs.290000/- only on 10.3.2019 by above mentioned two separate account payee cheques, knowing it fully well that the op has no authority to receive any amount from any person or persons including the complainant herein.  If the complainant knew it previously that he would be cheated by the op, then the complainant would not paid the said amount of Rs.660000/- only to the op.

Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs. 660000/-  with @12% p.a and to pay a sum of Rs.500000/- towards compensation for physical harassment and mental agony and to pay a sum ofRs.40000/- towards litigation costs.

Defense Case:- The opposite party contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the land owners with an ill motive and illegally had revoked the general power of attorney unilaterally and without knowledge and consent of the op and as such he could not complete the proposed flat within the stipulated period.  The op has not deliberately and willingly concealed the fact of revocation of power of attorney as he had no knowledge about the same.  The op has no intention to cheat the complainant but the complainant is trying to cheat the op by falsely claiming that he has paid Rs.660000/- to the op instead of Rs.330000/-.  The land owner has appointed new promoter to construct the proposed flat and through negotiation with the new promoter the op can arrange to refund Rs.330000/- to the complainant alternatively he can deliver the possession of the flat if the complainant agrees to pay the balance amount of Rs.670000/- out of total consideration amount ofRs.1000000/- only and the complainant sent a notice on 29.12.2020 to the op with wrong and false instructions to his advocate and accordingly the contents of the said letter are totally false, fabricated and no foundation at all.  The op does not agree for payment of Rs.660000/- with interest @ 12% p.a and the complainant is not entitled to recover the amount ofRs.660000/-.  The complainant is trying to cheat the op because he issued two cheques only total amount of Rs.330000/-.  The schedule of claims is totally false and vague and as such the complainant is not entitled to get any relief as prayed for.  There is no willful larches and negligence on the part of the op in failing to refund the amount of Rs.330000/- to the complainant as the op has suffered huge loss for non completion of the construction of the said building because behind the back of the op the land owners illegally and motivatedly had revoked the power of Attorney unilaterally and also for investment of huge amount for the construction of the building as such there is no question of arising unfair trade practices on the part of the op.  The op is very honest and he tried his level best to fulfill his part of obligation towards the complainant.

On the other hand, it is stated that the op tried his level best to deliver the possession of the said flat and to refund the said amount to the complainant but due to illegal revocation of the general power of attorney by the owners as well as for non refund of cost of construction which was made by the op.  There is no deficiency and lack of diligence and negligence on the part of the op and neither he is guilty of any unfair trade practice.  Thus, it is apparent that this op was never failed to discharge his obligation and to comply the terms of the agreement for sale and the petitioner is not entitled to get any of the relief as prayed for in the prayer portion of the said application because the complainant is trying to cheat the op by falsely claiming Rs.660000/- instead ofRs.330000/- and as such the op is suffering from mental pain and agony due to false claim of the complainant.  Rather the op is entitled to get amount of Rs.200000/- for his mental paid and agony. The instant case is unfounded one and the same is liable to dismissal in limine.

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 filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite party.

            The O.P. has filed a evidence on affidavit which reiterates  the averments of the written version.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party have filed separate written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides shall have to be taken into consideration for disposal of the instant proceeding.

            Heard argument of both sides at length. In course of argument ld. Lawyers of both sides have given emphasis on evidence and documents produced by the parties.

From the discussion hereinabove, we find the following issues/points for consideration.

DECISION 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 filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy 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 complainant is a resident of Mahesh, Serampore, 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 the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law. It is the settled principle of law that the promoter/developer is bound to refund the advance amount alongwith interest at the rate of 9% p.a. to the complainant in the event of failure to deliver possession of the apartment within time stipulated and this district commission has the jurisdiction to try this case.     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 related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints 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 these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that  an agreement for sale was executed on 10.3.2019 in between op and complainant in the matter of selling a residential flat measuring about 620 sq. ft. being flat no. G/3 at the3rd floor of the building known as “Addriza Apartment”.
2. It is also admitted fact that the said apartment is situated at premises no.22, College Road, Nabagram, P.S-Uttarpara, Dist-Hooghly.
3. There is no controversy over the issue that  the said apartment has been constructed on the land situated at R.S Dag no.43 Khatian no.106, L..R Dag no.172, L.R Khatian no.584 of Mouza-Khardo Bahera.
4. There is no dispute over the issue that  total consideration money in respect of the said flat is of Rs.992000/-. 
5. It is admitted fact that  out of the said consideration amount  the complainant had paid Rs.330000/- at the time of execution of the agreement for sale.
6. It is also admitted fact that the complainant once again had paid Rs.290000/- by way of cheque.
7. There is no controversy over the issue that the said apartment has not been fully constructed by op finally.
8. There is no dispute over the issue that the OP had not refunded the consideration money/advanced money paid  by complainant.     
9. It is admitted fact that  the land owners revoked the registered power of attorney given to the OP in the matter of development and construction of the property.
10. It is also admitted fact that the OP assured the complainant for refund of Rs.330000/- but it has not been finally refunded.

              Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

               On the background of the above noted admitted  facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant has adopted the plea that he has paid advance to the OP of Rs.660000/- and inspite of receiving the said advance money the OP has neither handed over possession  to the complainant of the suit flat nor executed and register the deed of conveyance and it indicates that the OP has negligence and deficiency of service on his part.  But on the other hand the OP has taken the defence alibi that the land owners revoked the power of attorney and as a result of which the OP has failed to complete the building and also failed to deliver possession of the schedule mentioned flat to the complainant and so there is no negligence of deficiency of service on the part of the OP.

            For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords this District Commission after going through the evidence on record finds that it is admitted fact that the OP has taken the advance amount of Rs.660000/- from the complainant and it is also admitted fact that the OP has neither handed over possession of the suit flat to the complainant nor executed the registered the deed of conveyance.  This matter is clearly indicating that there is negligence and deficiency of service on the part of the OP.  Now the question is whether the complainant is entitled to get refund  of the amount deposited to the OP with interest or not.  In this regard it is the settled principle of law that failure to deliver possession of the apartment with time stipulated and failure to execute and deed of conveyance is a deficiency of service and for that reason the complainant is entitled to get the refund of the amount deposited with interest @9% p.a.  This legal principle has been observed by Hon’ble Apex Court and it is reported in AIR2022SC1824.

            A cumulative consideration of the above noted discussion goes to show that the complainant has proved her case in respect of all the points of consideration adopted in this case and for that reason the complainant is entitled to get relief in this case in respect of all the points of consideration.

In the result it is accordingly,

ordered

that the complaint case being no. 66 of 2021 be and the same is allowed on contest but in part. 

Opposite party is directed to pay the  amount  of Rs. 660000/- alongwith with interest @9% p.a. within 60 days from the date of this order otherwise complainant is given liberty to execute this order as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite party is 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.

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.