Presented by: -
Shri Debasish Bandyopadhyay, President.
Complaint Case No. 234/2021
The complainant has instituted this case against the OP u/s 35 of the Consumer Protection Act, 2019 with the prayer for passing direction to the OP to deliver possession of the flat described in the schedule of the complaint petition to the complainant and for passing direction to complete the construction work such as stair case work, plaster work and plumbering work etc. and for awarding compensation and litigation cost.
Fact of this case
Case of the complainant
The case of the complainant which is deciphered from the petition of complaint in bird’s eye view is that the complainant and father of the OP were the occupier of Premises No. 84, Jola Para Masjid Lane under P.S. and Dist. Howrah and the share of the said premises provided in equal share amicably by way of partition deed which was registered in the office of Registrar at Howrah on 19.01.1988 and the schedule “C” property was allotted to the complainant which was measuring about 378 sq. ft.. It is submitted that after the death of Asgar Ali, the father of the OP alongwith other brothers became the sharer of the said premises. It is pointed out that the complainant intended to develop their premises and so made an offer for developing the said area of the complainant and the OP who is the near relative of the complainant approached and requested to hand over the property for development work. It is alleged that the complainant and OP executed a deed of memorandum of understanding dtd. 22.09.2017 and the said memorandum of understanding was notarized and it was settled that OP developed the share of the complainant which was total area about 1820 sq. ft. in the said premises and complainant shall have to pay Rs. 850/- per sq. ft. It is asserted that the complainant has paid Rs. 15,35,000/- to the OP as cost of construction of the said structure and it was settled between the complainant and OP that total cost of construction was of Rs. 19,32,000/- out of which the complainant has paid Rs. 15,32,000/-. It is also stated that on 1st day of May, 2020 the OP handed over the possession of the said premises to the complainant partly except in a flat at the 2nd floor as he kept his brother Shanwaz Hussain in the said flat and so complainant requested the OP to hand over possession of the said flat in question as OP kept his brother without any legal authority and caused deficiency of service and the intention of the OP is to capture the said flat as the OP stated to pay rent for the said flat forcibly and also threatening not to vacate the said flat. As per case of the complainant the OP is not delivered the said flat which caused mental agony and emotional distress to the complainant and the cause of action of filing this case arose on 1st day of May, 2020 at the Premises No. 84, Jola Para Masjid, P.S. & Dist. Howrah . For all these reasons the complainant has instituted this case and prayed relief as per prayer of the complaint petition.
Defense Case - The notice / summons were duly served upon the OP and the OP has failed to file W/V within the period of statutory limit and as such this District Commission has passed the order of ex-parte hearing of this case.
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 is going to adopt the following points of consideration :-
(i) Is this case maintainable in its present form and in the eye of law?
(ii) Has this District Commission jurisdiction to try this case?
(iii) Is the complainant is a consumer under the OP or not?
(iv) Whether the complainant has any cause of action for institution of this complaint case ?
(v) Whether the complainant is entitled to get direction upon the OP to deliver possession of the flat to the complainant and to complete the construction work and also for payment of compensation and litigation cost or not?
(vi) To what other relief / reliefs is the complainant entitled to get in this case?
Evidence on record
The complainant in order to prove the case has filed evidence on affidavit and also produced documents which have been marked as Annexure – A, B & C.
On the other hand the OP has not filed any evidence on affidavit in this case to disprove the case of the complainant.
Argument highlighted by the parties
The complainant has filed Brief Notes on Argument and also highlighted his verbal argument and in course of verbal argument the complainant side has given emphasis on the oral and documentary evidence.
Decision with reasons
The questions and / or issues involved in the first 4(four) points of consideration are interlinked and / or interconnected with one another and for that reason and also for the convenience of discussion and for the interest of proper and complete adjudication of these 4 (four) points of consideration are clubbed together and taken up for discussion jointly.
For the purpose of arriving at just and proper decision in respect of the above noted 4(four) points of consideration and for the interest of proper and complete adjudication of this case, there is urgent necessity of making scrutiny of the material of this case record as well as examining the evidence on record. After going through the material of this case record it is reflected that the complainant is a resident of Jolapara Masjid Lane, Dist. Howrah and the OP is also resident of Jolapara Masjid Lane, Dist Howrah. As both the Complainant and OP are the residents within the district of Howrah, it is crystal clear that this District Commission has its territorial jurisdiction. On close examination of the material of this case record this District Commission finds that the claim of the complainant is far below than that of Rs. 20,00,000/- and it indicates that this District Commission has its pecuniary jurisdiction. Thus, the jurisdiction point is decided in favour of the complainant.
It is also revealed from the material of this case record as well as from the evidence on record that the complainant has paid the consideration money and construction charges to the OP for making construction of the said project and the OP received the said amount . This matter is clearly indicating that the complainant is a consumer under the OP and this case is also maintainable in the eye of law. These points of consideration framed over the issue of maintainability and whether the complainant is a consumer or not, are decided in favour of the complainant side.
It is also reflected from the case record that the complainant in spite of making payment of the consideration money and construction charges have not yet received the entire portion of his share in the said building and the complainant for the purpose of getting delivery of his share repeatedly requested the OP but the OP has not paid any heed to such appeal of complainant. This matter is clearly reflecting that the complainant has his cause of action for institution of this case against the OP.
A cumulative consideration of the above noted discussions goes to show that the complainant has proved his case in respect of all the above noted 4(four) points of consideration and for that reason these above noted 4(four) points of consideration are decided in favour of the complainant.
The point of consideration No. 5 has been framed over the issue whether the complainant is entitled to get the direction upon the OP for handing over the possession of his share in respect of the schedule mentioned property and whether the complainant is entitled to get compensation and litigation cost in this case or not ? In the matter of arriving at decision in respect of the above noted 2 (two) points of consideration, this District Commission after going through the material of this case record finds that the complainant has filed evidence on affidavit, no interrogatories has been filed by the OP which indicates that the evidence given by complainant side relating to the above noted 2(two) points of consideration are remaining unchallenged . It is also important to note that the OPs also have not filed any evidence on affidavit to disprove the case of the complainant. As the OP has not appeared and also has not filed any W/V and evidence on affidavit , the case of the complainant which is also supported by evidence and documents are found unchallenged and uncontroverted. There is no reason to disbelieve the unchallenged and uncontroverted evidence given by the complainant side .
On this background this District Commission after going through the evidence on affidavit finds that the complainant has proved his case and the evidence which has been filed by complainant is nothing but replica of the fact highlighted in the complaint petition. Thus, it is crystal clear complainant has proved his case in respect of the above noted 2(two) points of consideration and it is also reflecting that the complainant is entitled to get the award directing the OP to deliver possession of the flat to the complainant and also entitled to get the award directing the OP to complete the construction work such as stair case work, plaster work and plumbing work etc. Thus, the above noted 2(two) points of consideration are also decided in favour of the complainant side.
Recapitulating the above noted discussion this District Commission finds that the complainant has proved his case in respect of all the points of consideration framed in this complaint case by this District Commission and so this complaint case is decided in favour of the complainant.
In the result, it is accordingly,
ORDERED
That this Complaint Case being No. 234/2021 be and the same is allowed ex-parte but in part.
It is held that the complainant is entitled to get an award directing the OP to deliver possession over the suit flat to the complainant and also entitled to get award directing the complainant to complete the construction work such as stair case work, plaster work and plumbing work etc. OPs are directed to take steps in the matter of handing over possession of the suit flat to the complainant after completing the construction work such as stair case work, plaster work & plumbing work etc. within 45 days from the date of passing of this judgment / final order. Otherwise complainant is given liberty to execute this award as per law.
No order is passed relating to compensation and litigation cost .
The parties of this case are entitled to get a free copy of this judgment as early as possible.
Let this judgment / final order be uploaded in the official website of this District Commission immediately.
Dictated & corrected by me
President
