In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.

Case No. CC/21/2021.

Date of filing: 25/01/2021.                     Date of Final Order: 05/02/2024.

Sri Utpal Kumar Saha,

s/o Late Amit Ranjan Saha,

r/o 77, B.M. Saha road, P.O. Hindmotor,

P.S. Uttarpara, Dist. Hooghly, PIN. 712233.                                      …..complainant

  -vs 

M/S Bengal Construction,

A partnership firm having its office at

94/1/1, K.G.T. Road, P.O. Hindmotor,

P.S. Uttarpara, Dist. Hooghly, PIN. 712233.

Represented by its partners namely,

1. Sk. Jainal,

s/o Late Sk. Mursad Ali,

2. Nilam Singh,

w/o Late Sunil Singh,

           r/o at 94/1/1, K.G.T. Road, P.O. Hindmotor,

P.S. Uttarpara, Dist. Hooghly, PIN. 712233.……opposite parties

Before:            President, Shri Debasish Bandyopadhyay.

                          Member,  Debasis Bhattacharya.

FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 12 of the Consumer Protection Act, 1986 and amended act  under section 35 of 2019 by the complainant stating that the petitioner for the development of the landed property entered into a development agreement dated 25^th day of March 2014 and that was notarized on 4^th day of April 2014, with certain terms and conditions contained therein.  After sanctioning of building plan by the Uttarpara Kotrung Municipality, the construction work was started by Developer as the petitioner performed all obligations set out the development Agreement dated 25^th day of Marchg,2014.  The Developer completed the construction work not in conformity with building plan sanctioned by Uttarpara Kotrung Municipality and also grossly violating the terms and conditions set out the development Agreement dated 25^th March, 2014  and the development agreement the owners allocation have been mentioned in such way  “Owners” Allocation shall mean 01 residential flat measuring on built up area shall mean 01 residential flat measuring 1000 sqa. Ft on the first floor but the developer allotted 948 sq. ft. remaining 40 sq.ft on the ground floor towards West Southern side of the proposed multi storied building to be constructed over the schedule mentioned land along with a sum of Rs.1350000/- only in the matter written in memo of consideration.  As per the memo of consideration out of Rs.1350000/- only the Developer have already paid Rs.1050000/- to the petitioner.  At present the due amount is Rs.300000/-.  Though the developer has handed over the flat as mentioned in the development agreement to the petitioner but entire work of the building is in complete.  The following acts have not been completed and the total building is in to some extent not up to the level of living standard and it causes danger to its residents including the petitioner.

As per case of petitioner, the following works are being incomplete:

a) the entire meter space is not covered and it may cause danger to the residents of the flat

b)the common entrance to the building is incomplete

 c) water leakage from the rain and sewerage water pipe

 d) the name plate of the building is not being hanged it creates problems to service provider to the residents of the flat. 

The developer have supplied a long list of works done by the developer which is not included in the Development Agreement with the intention that the cost all such works will have to be bourne by the complainant and the amount is Rs.234401/- only.

The complainant stated that the main intention of giving the demand of Rs. 2,34,401/- is to adjust the due amount of Rs. 3,00,000/- to the complainant as per development agreement dt. 25^th March, 2014 and at the time of signing of the development agreement very details of the said land up on which the building is being constructed have been shown to the developer and upon being fully satisfied with the paper relating to the land the developer have entered into the development agreement. After completion of all formalities and after construction of the building the developer now claiming Rs. 25,000/- for paper notification from the complainant and there is a condition in the development agreement dt. 25^th March, 2014 that the complainant will pay the extra amount for extra work which is beyond development agreement to the developer and the complainant is ready to pay extra money amount for extra work and the developer has handover the flat on 1^st March, 2017 without doing specific work as mentioned in the development agreement dt. 25^th March, 2014 at the time of handing over the flat the developer have given assurance that the unfinished work will be finished subsequently and the possession letter will be issued later on but the developer has not issued the possession letter in favour of the complainant till today and the complainant has done some extra work amounting to Rs. 88,230/-. The complainant number of occasions approached the developer to sit together and sort out the problem mutually and in every occasions the developer refused to sit together with the complainant and finally the complainant served a demand notice by ld. Advocate dt. 23.4.2019. After serving the demand notice dt. 23.4.2019 the complainant requested the developer to have a discussion to sort out the long standing problem on 26^th December, 2019 but the developer totally refused to sit with the complainant.

Complainant filed the complaint petition praying direction upon the opposite party nos. 1 and 2 to pay a sum of Rs. 3,00,000/- as per development agreement dt. 25^th March, 2014 with interest and to pay a sum of Rs. 2,00,000/- for litigation cost and mental agony and pain.

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.

Argument highlighted by the ld. Lawyers of the parties

Complainant filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of complainant are to be taken into consideration for passing final order.

            Argument as advanced by the agent of the complainant heard in full. In course of argument ld. Lawyer of complainant has 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 inspite of receiving notice have not filed any W/V and also 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. This District Commission after going through the materials of the case record finds that the complainant is a resident of Uttarpara, 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. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. 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 on close examination of the pleadings of the complainant 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 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 complainant and there is also necessity making scrutiny of the documents filed by the petitioner of this case.

            For the purpose of arriving at just and proper decision in respect of points of consideration nos. 4 and 5 this District Commission finds that there is necessity of making scrutiny of the evidence given by the complainant. In this regard it is important to note that the ops have neither filed any W/V nor filed any evidence on affidavit to disprove the case of the complainant. On close examination of the evidence given by the complainant side it is revealed that the complainant has categorically described his case in the evidence and the evidence given by the complainant is also supported by documents. It is also revealed that the evidence (oral and documentary) which is given by the complainant side remains unchallenged and/ or uncontroverted as no cross examination has been highlighted in this case by the ops. After going through the materials of this case record this District Commission finds that there is reason to disbelieve the unchallenged and uncontroverted testimony of the complainant side. It is also transpires that the complainant has proved his case by way of adducing evidence in connection with the points of consideration nos. 4 and 5 which have been adopted in this case.

All the above noted factors are clearly reflecting that the complainant is entitled to get relief in this case which has been prayed by this District Commission.

In the result it is accordingly

ordered

that the complaint case being no. 21 of 2021 be and the same is allowed ex parte  but in part.  No order is passed as to compensation and litigation cost.

Opposite party nos. 1 and 2 are directed to pay the said amount of Rs.3,00,000/- 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 nos. 1 and 2 are 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.