In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/173/2022.
Date of filing: 23/08/2022. Date of Final Order: 02/09/2024.
Jiban Kumar Das,
S/o Late Manoranjan Das,
R/o Flat No. 3D, 3rd Floor, Ashiana Enclave,
30, D.S. Lane, P.O. Konanagar, Ward No. 13,
P.S. Uttarpara, District Hooghly, Pin-712235 (W.B.). …….complainant
vs -
- M/s. Sapphire Group,
a partnership firm, represented through its partner,
having its registered office at 21/15,
G.C. Bose Sarani, P.O. Konnagar,
P.S. Uttarpara, District Hooghly,
West Bengal, Pin Code - 712235.
- Sri Sujoy Kumar Das,
son of Late Dr. Kshirode Behari Das,
partner of M/s. Sapphire Group residing
at 40/E/1, M.L.Garden Lane, P.O. Konnagar,
P.S. Uttarpara, District - Hooghly,
West Bengal, Pin Code-712235.
- Smt. Keka Majumder,
wife of Sri Dilip Majumder,
partner of M/s. Sapphire Group residing at
Ground Floor Sardhanjali Apartment,
Chalachitram Cenema campus,
Lal Bahadur Sastri Marg, ward No.10,
P.O. Konnagar, P.S. Uttarpara,
District - Hooghly, West Bengal, Pin Code - 712235.
- Sri Salil Chowdhury,
son of Late Gouri Shankar Chowdhury,
partner of M/s. Sapphire Group residing at
3rd Floor, Charaktala Enclave,
Behind Charaktala Mandir, Sri Aribindo Road,
Ward No.14, P.O. Konnagar, P.S. Uttarpara,
District- Hooghly, West Bengal, Pin Code - 712235.
- Smt. Bimala Chakraborty alias Alpana Chakraborty,
wife of Sri Sailendra Nath at 30,
Dayal residing Chakraborty, Shiromani Lane,
P.O. Konnagar, P.S. Uttarpara,
District - Hooghly, West Bengal, Pin Code - 712235.
…….opposite parties
Before: President, Shri Debasish Bandyopadhyay.
Member, Debasis Bhattacharya.
Member, Babita Chaudhuri.
FINAL ORDER/JUDGEMENT
Presented by:-
Shri Debasish Bandyopadhyay, President.
Brief fact of this case:- This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that the complainant in 2002 was an employee in a reputed Multinational Company and during that period been transferred to Kolkata Regional office from Patna (Bihar). The complainant at that point of time was approaching towards his retirement and therefore wished to settle down in nearby place to Kolkata and thereby started searching for an appropriate residential complex to purchase a Flat. It was during this time that through advisement the complainant came to known about a project being a residential complex named "Ashian Enclave" at premises no. 30, D.S. Lane, P.O. Konanagar, P.S. Uttarpara, District Hooghly, Pin 712235 (W.B.), being constructed by the opposite party no. 1 to 4 and the Complainant thereafter visited the above stated residential complex and after correspondence in the office of the opposite parties no 1 to 4, the complainant was informed that M/s. Sapphire Group, a partnership firm, of which the opposite party no. 2 to 4 are partners have entered into an development agreement 22.03.2000 with opposite party no 3, being the land owner of all that piece and parcel of the Bastu Land measuring more or less 11 Cottah 10 Chitacks, which is situated at Mouja-Konnagar, J.L. NO.7, comprised in Dag No. 7638 & 2615, under Khatian No. 1898 & 3253, within the ambit of Konanagar Municipality (Ward No. 13), being Municipality Holding No. 30, Dayal Shiromani Lane, P.O. Konnagar, District Hooghly, West Bengal, Pin Code -712235. The opposite parties no. 1 to 4 also shown the building plan of the residential complex named "Ashiana Enclave".
The complainant believing upon all the details including the building plan, as shown and informed about, by the opposite parties no. 1 to 4, booked the Flat being Flat No. 3D, 3rd Floor admeasuring about 978.sq.ft in the said residential project named "Ashiana Enclave" being constructed by the opposite parties no. 1 to 4 i.e. the promoter and developer at Mouja-Konnagar, J.L. NO.7, comprised in Dag No. 7638 & 2615, under Khatian No. 1898 & 3253, within the ambit of Konanagar Municipality, being Municipality Holding No. 30, Dayal Shiromani Lane, P.O. Konnagar, District Hooghly, West Bengal, Pin Code -712235 and executed Agreement to Sale on 28.07.2002 upon payment of the initial amount of Rs. 68,503/- (Rupees Sixty Eight Thousand Five Hundred and Three). The total sale consideration of the said Flat was Rs.4,35,000/- (Rupees Four Lakhs and Thirty Five Thousand). As the agreement, the remaining amount of Rs.3,66,497/- (Rupees Three Lakhs Sixty Six Thousand Four Hundred and Ninety Seven) was to be paid before the possession of the Flat was delivered to the complainant by the opposite parties. The agreement to sale was executed between the complainant and all the opposite parties, wherein the opposite parties no. 1 to 4 executed the agreement to sale in capacity of promoter/ Developer and the opposite party no.5 executed the agreement to sale as land owner, whereas the complainant was the purchaser of the Flat. The agreement to sale was notarized on 30.07.2002. The complainant had paid the total consideration amount of Rs.4,35,000/- (Rupees Four Lakhs and Thirty Five Thousand) i.e. the price value of the above mentioned Flat and accordingly the opposite party no.2, vide letter dated 06.12.2002 issued letter acknowledging the receipt of the full sale consideration of the Flat and requesting to take the possession of the Flat at the earliest and the complainant along with his family upon receiving the possession of the property had permanently shifted to the Flat in the month of June 2003 and till date the complainant and his wife is residing in the said Flat Le past more than 20 years. It is further submitted that the opposite party nos. 1 to 4, at the time of possession, itself, had assured the complainant that they shall provide the completion Certificate and execute the Deed of Sale, within some time.
The complainant had from the date of possession i.e. from the year June 2003, till date, have approached the opposite parties on numerous occasions requesting to provide the completion certificate and to execute the Deed of Conveyance but till date the opposite parties have failed to comply with the same and in the meanwhile the complainant also approached to the Learned Office of B.L&L.R.O Serampore-Uttarpara, West Bengal for enquiring about the process of mutation and upon producing the photo copy of the Agreement to sale, the concerned authorities made necessary search. The complainant was utterly shocked and surprised that the opposite parties had constructed the residential complex "Ashiana Enclave" upon only 8 Chottahs 3 Chittacks 15sq.ft i.e. 0.142 acre rather than the area of 11 Cottah 10 Chitacks as mentioned in the notarized agreement. Further, adding to the atrocities the opposite parties had sold the 3 Chottahs 3 Chittacks 0.05sq.ft land to one Mr. Kalyan Ghosh. The copy of the Map and the records of the Learned Office of B.L&L.R.O Serampore-Uttarpara.
The complainant verbally had intimated the said facts to the opposite parties but no concerned was given by them and the complainant through their counsel sent a legal notice on 22.06.2022 but even after receiving the legal notice the opposite parties did not turn up. Hence the complainant left with no alternative had approached before the Hon'ble Commission.
Complainant filed the complaint petition praying direction upon the opposite party no. 1 to 5 to provide the completion certificate and execute the deed of conveyance with respect to flat no.3D, 3rd floor, located in the residential complex being Äshiana Enclave” located at Mouza-Konnagar, J.L.no.7 comprised in Dag no.7638 & 2615 under Khatian no.1898 & 3253 within the ambit of Konnagar Municipality, being Municipality holding no.30 Dayal Shiromani Lane, Ward No.13, P.O Konnagar, Dist-Hooghly Pin-712235 in favour of the complainant being the owner of the said flat and in case the OPs fails to execute the deed of conveyance the Hon’ble Commission may kindly be pleased to appoint an officer on behalf of the Hon’ble Commission to effect the execution of deed of conveyance before the appropriate registry office and to allow ex parte ad interim order with respect to flat no.3D located in the residential complex being “Ashiana Enclave” located at Mouza-Konnagar, J.L.no.7 comprised in Dag no.7638 & 2615 under Khatian no.1898 & 3253 within the ambit of Konnagar Municipality, being Municipality holding no.30 Dayal Shiromani Lane, Ward No.13, P.O Konnagar, Dist-Hooghly Pin-712235 directing the Ops no.1 to 5 to refrain from creating any third party interest till the disposal of the present case and to pay a sum of Rs.435000/- as the value of registration raised due to delay on part of OPs in executing the deed of conveyance and to pay a sum of Rs.250000/- for mental agony and harassment suffered and to pay a sum of Rs.50000/- for litigation cost with at the rate of 18 % compounded annually from the date of award till its receipt.
Defense Case:- The opposite party Nos. 2 to 4 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that it is very relevant to mention that the complainant never forwarded any letter to the developer not to the owner of the property and entire allegation as stated by the complainant is not sustainable at this stage. It is to be remembered that all his fellow flat owners have completed their registration and obtained municipal tax receipt from the local municipality, since mutation and the complaint was out of state for a long period and did not approached the concerned parties to execute and registered the deed of conveyance and the O.P Nos. 2 to 4 being the developer herein, is always ready to execute and discharge all liabilities, towards his customer. But after elapse of 20 years, the partnership firm is not theoretically active and cannot transferred the flat without active support of the owner i.e. O.P No. 5, as per Govt. provision of West Bengal Registration act. It is mandatory provision for the landowner, to remain present for execution and registration of the deed or to execute general power of attorney unto the developer. If it is satisfactorily done, O.P No. 2 to 4 have no objection to execute the Deed of Conveyance unto the complainant. So, the complaint case is liable to be dismissed with cost.
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:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- 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 parties.
The answering opposite parties filed a petition for treating their W/V as their evidence on affidavit.
Argument highlighted by the ld. Lawyers of the parties
Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.
Argument as advanced by the ld. Advocates of the complainant and the opposite party nos. 2 to 4 heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.
DECISIONS 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 Mankundu, 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. 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 points 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 the complainant has paid the entire consideration amount of Rs.43500/- to the Ops and Ops also have received the said amount but the Ops have not executed and registered any deed of conveyance and also have not handed over completion certificate in favour of the complainant in respect of the flat described in the schedule of the complaint petition. It is also evident from the evidence on record that the complainant has taken the plea that the Ops inspite of receiving the entire consideration amount have not handed over completion certificate and also have not executed and registered deed of conveyance which is undoubtedly deficiency of service and unfair trade practice on the part of the Ops. On the other hand, the Ops have taken the defence alibi that the Ops were ready to execute and registered deed of conveyance and also discharged liabilities towards their customer ( complainant) but after the lapse of twenty years the partnership firm is not now active and so it is not possible to execute and register the deed of conveyance in favour of the complainant and it has also been pointed out that other flat owners of the said apartment already have taken steps for execution and registration of deed of conveyance but the complainant due to the reason best known to him remained silent.
But fact remains that the Ops are duty bound to hand over completion certificate and also to execute and register deed of conveyance in favour of the complainant side.
It is also important to note that the complainant side in support of his claim of getting compensation and cost of registration, has failed to produce any supportive / corroborative evidence and so this part of claim of the complainant side cannot be allowed.
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 excepting the cost of registration and compensation amount.
In the result it is accordingly
ordered
that the complaint case being no. 173 of 2022 be and the same is allowed on contest but in part.
OP-1 to 5 are specifically directed to hand over the completion certificate and to execute and register the deed of conveyance in favour of the complainant within 45 days from the date of passing judgment and / or final order. Otherwise the complainant is given liberty to execute this award as per law.
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.
