FINAL ORDER/JUDGMENT
Presented by:
Minakshi Chakraborty, Presiding Member.
Brief facts of the case: This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainant stating that thecomplainant alongwith her husband entered into two agreement for sale for purchasing one residential flat and another roof top of holding no.96, Makhla Charaktala (Birla Road), P.O-Makhla, P.S-Uttarpara, Dist-Hooghly, Pin 712245 which well within the jurisdiction of Ld. Forum and in respect of 310 sq. ft. roof top of the 2nd floor to purchase the same of the aforesaid holding under P.S-Uttarpara, Mouza-Makla, J.L. no-11 ward no.23 of Uttarpara Kotrung Municipality being holding no.96, Makhla Charaktala of R.S Plot no.1796 and L.R plot no.1838 vide R.S.kh. no.19 L.R Kharian no.429 which is situated over Bastu land measuring area about 01 cottah 25 sq.ft. and the consideration sale amount has been fixed of Rs.4,00,000/-and where Rs.3,00,000/- had already been to said OPs through R.T.G.S on UBI no.NH-17240204775 and after satisfaction of payment agreement for sale duly signed by parties and on the self same day i.e. 28.8.2017 another agreement for sale executed between the complainant and her husband and OPs over the said plot of land in respect of a residential flat on the ;first floor measuring about 694 sq. ft covered area in consideration of sale amount of Rs.12,00,000/- out of which advance of Rs.4,00,000/- paid by the complainant by way of RTGS paid to the ops vide no.UBI NH-17240204775 and the said ops already being received of Rs.700000/- from the complainant and her husband on the date of said agreement and the tenure of this agreement is 06 months and during that period aforesaid ops failed to supply the aforesaid documents of property to the complainant and due to non-supply of relevant documents regarding the flat and roof top the present complainant could not able to take loan from the registered bank as to deficiency of service the op. and the above named complainant cancelled the agreement for sale dated 28.8.2017 as per agreement the complainant demanded the amount from the ops and they assured the complainant to return back the said amount within few days and the complainant made several request to the ops but ops failed to return back the said amount. After sometime later, on 22.3.2018 the complainant sent a demand notice through his Ld. Advocate. The said demand notice sent through registered post with A/D,OPs received but OPs did not pay any heed in this regard.
Subsequently complainant and her husband have no other alternative lodged complain against the present ops. The concerned police station i.e. Uttarpara P.S after receiving the aforesaid complain started a specific case against the ops, vide Uttarpara P.S case no.346/2018 dated 04.05.2018 under Section 420/406/468/471/120B/34 IPC but till today not a single payment made by the ops.Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs.7,00,000/- to return back the advance money with interest andto pay a sum of Rs.5,00,000/-for mental agony, medical expenditure and pain, harassment and trouble down grading prestige of the complainant and to pay a sum of Rs.4,00,000/- for deficiency of service and to pay a sum of Rs.50,000/- for litigation cost.
Defense Case:-The opposite party Nos. 1 & 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that in this case the dispute between the parties relating to immovable property, hence it does not fall under purview of consumer Dispute or under this Act and the cause of action of this case arose out of breach of contract and out of same cause of action of this five cases are pending before Serampore Court namely C.R. case 404/2018. So the present case is not maintainable. Opposite parties are not promoter nor developer so there is no consumer relationship in between the complainant and op nos. 1 and 2. So, the instant case should be dismissed against the ops in the interest of justice.
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.
Argument highlighted by the ld. Lawyers of the parties
Complainant have filed separate written notes of argument. As per BNA the evidence on affidavit and written notes of argument of complainant shall have to be taken into consideration for disposal of the instant proceeding.
Heard argument of complainant at length. In course of argument ld. Lawyer of complainant emphasized on evidence and documents produced by the them.
From the discussion hereinabove, we find the following issues/points for consideration.
Issues/points for consideration
- Whether the complainant is the consumer?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief?
DECISION WITH REASONS
Issue no.1:
In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (1) (d) of the Consumer Protection Act, 1986.The point is thus answered in the affirmative.
Issue no.2:
Both the complainants and the opposite parties are residents/having their office addresses within the district of Hooghly and the claims do not exceed the pecuniary limit of this commission. This point is thus disposed of accordingly.
Issue nos. 3 & 4:
Both the issues are taken up simultaneously for the sake of convenience.
At the very outset it is to be mentioned here that on perusal of the case record it is found that both Ops entered appearance by filing written version on 13.09.2019 but they did not file any evidence on affidavit for which the case is running ex parte against OP no. 2 vide order no. 19 dated 11.05.2022 while OP no. 1 has expired during pendency of the proceeding on 15.01.2021.
In the instant case as per averments of the complaint, cause of action arose on 28.08.2017 with the cancellation of both the agreement for sale one of which being related to purchase of one residential flat of 833 sq.ft. super built up area (694 sq. ft. cover area) and another agreement to purchaseone310 sq. ft. roof top of holding no.96, Makhla Charaktala (Birla Road), P.O-Makhla, P.S-Uttarpara, Dist-Hooghly, Pin Code - 712245 and of R.S Plot no.1796 and L.R plot no.1838 vide R.S.kh. no.19 L.R Kharian no.429 which is situated over Bastu land measuring area about 01 cottah 25 sq.ft.
Now, this commission finds on perusal of the BNA and evidence of the complainant on the record and comparing the same with the complaint that the complainant and her husband paid consideration amount of Rs.4,00,000/-and Rs.3,00,000/- respectively to OPs through R.T.G.S on UBI no.NH-17240204775 and after satisfaction of said payment, both the agreements for sale were duly signed by both sides and executed between the complainant and her husband and OPs over the said residential flat on the first floor measuring about 694 sq. ft covered area in consideration of sale amount of Rs.12,00,000/- out of which advance of Rs.4,00,000/- paid by the complainant by way of RTGS to the OPs vide no.UBI NH-17240204775 and the said OPs received Rs.700000/- from the complainant and her husband and tenure of agreement was of 06 months and during that period aforesaid OPs failed to supply the documents of property to the complainant and due to non-supply of relevant documents for the said flat and roof top, the present complainant failed to get loan from the registered bank as to deficiency of service of the OPs and the complainant cancelled the said agreements dated 28.8.2017. Ops did not return the amount to the complainant even after several requests, ops failed to return the said amount and on 22.3.2018 the complainant sent a demand notice through his Ld. Advocate and having no response, they lodged complain against the present OPs Uttarpara P.S case no. 346/2018 dated 04.05.2018 under Section 420/406/468/471/120B/34 IPC was started.
The record reveals that both Ops entered appearance on 13.09.2019 and contested the case by filing written version denying inter-alia all the material allegations as speckled against them and stated that in this case the dispute between the parties is relating to immovable property and it does not fall under purview of consumer Dispute or under this Act and the cause of action of this case arose out of breach of contract and out of same cause of action of this, five cases are pending before Serampore Court. In addition to that it is also contended that Ops are neither promoter nor developer and so there is no consumer relationship in between the complainant and OPs and thus Ops’ whole and sole plea of defense is based on the point of maintainability.
This case is heard ex parte against OP2 who challenges the petition of complaint by filing written version but subsequently neither any evidence is placed before the Commission nor the OP2 continued to appear to argue in the case for their defense while according to their written version, their sole defense before the commission is that the subject of the case is devoid of jurisdiction to entertain such complaint.
But if we consider section 3 of the Consumer Protection Act 1986 it specifically says that “the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force”. So though various criminal cases are still pending against the OPs but this commission has jurisdiction to entertain the present case, more so the OPs did not perform their duty, so both the OPs are held liable, but as OP 1has already died and OP2 is the sole legal heir of OP1, so the entire responsibility casts upon OP2, though no petition with regard to substitution has been filed by the complainant in the instant complaint case.
Both the issues are thus disposed of.
Hence,
ordered
that the complaint case no. 55 of 2019 be and the same is decreed against OP2 .
The Complainant do get back Rs 7,00,000/ along with interest to the tune of Rs 9% p.a from the date of inception of this instant complaint from the OP2( Sri Sougata Saha) within 45 days from date:
The complainant further do get Rs. 50,000/ for deficiency in service from the OP2 along with Rs.8000/ as litigation cost within 45 days from date .
In case the OP2 fails to comply with the direction within the date specified in the order the complainant is at liberty to take recourse to law for executing the award.
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.
