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

Case No. CC/99/2021.

Date of filing: 10/08/2021.                     Date of Final Order: 04/01/2023.

Sri Kuntal Kumar Ghosh,

s/o Sri Rabibdra Nath Ghosh,

r/o Sandhya Apartment, flat no. 4B,

Barasat, G.T. Road,

P.O. & P.S. Chandannagar,

Dist. Hooghly, Pin. 712136, W.B.                                              ……complainant

   vs 

1. Sri Tapan Kumar Saha,

s/o Late Gokul Chandra Saha.

2. Smt. Bulu Saha,

w/o Sri Tapan Kumar Saha.

Both are residing at:

Mankundu, Palpara,

Dist. Hooghly, PIN. 712139, W.B.

3. Sri Jayanta Kundu,

s/o Late Radha Krishna Kundu,

r/o Mankundu, Station Road,

P.O. & P.S. Chandannagar,

Dist. Hooghly, PIN. 712136, W.B.

4. Sri Ajay Kumar Nandy,

s/o Late Gouri Shankar Nandy,

r/o Barasat Nandy Para,

P.O. & P.S. Chandannagar,

Dist. Hooghly, PIN. 712136, W.B.

5. Sri Debabrata Saha,

s/o Sri Rabindra Chandra Saha,

r/o Saheb Bagan, P.O. & P.S. Chandannagar,

Dist. Hooghly, PIN. 712136, W.B. ……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 respondents together constructed a project of 13 flats name and style as “Sandhya Apartment” situated at 209 G.T.Roiad, Barasat, P.O. & P.S-Chandannagar, Dist-Hooghly, Pin-712136 W.B under Mouza-Chandannagar, Sheet no.22 R.S Khatian no.32 L.R Khatian no.63 R.S Plot no.50, L.R plot no.1596, under Chandannagar Municipal Corporation, Ward No.22 The respondent no.1,2,3 &4 are the developer of the said project and the respondent no.5 is the owner of the said projected land.  Regarding said matter between the respondents a development agreement was registered being no.060402137 of 2015 at ADSR Chandannagar.  The complainant booked the flat no.;4B of the said project on 5.2.2018 by executing an agreement to sale with the above named respondents.  After that paying the full extimated amount according to the agreement the complainant registered and executed a sale deed being no.060402397 of 2018 registered in the book no.1 volume no.0604 of 2018 page no.54470 to 54506 before ADSR Chandannagar on 6.8.2018.  After that the name of said complainant has been properlyrecorded in the settlement record of right and he regularly used to payrent and taxes before the BL&LRO Singur-Khalisani block and also in Chandannagar Corporation.  The respondents not only assured to the complainant to provide a lot of facilities which has been elaborately mentioned in the sale deed but also verbally promised to complete all the pending works within 3 months from the date of executing sale deed but most of the pending works as mentioned in the schedule has not been fulfilled or executed till date by the respondent no.1to 4.  Believing upon the sweet words of the respondents, the complainant and also other flat owners have already paid the whole cost of their own flats and in that respect the respondents provide them the possession of their said flats and executed the sale deeds. But till date a lot of construction, installation, repairing & civil works as mentioned in the schedule, is pending and for which the complainant as well as the other flat owners have to suffer a lot.  Among the pending works as per schedule, due to pendency of the installation of lift, the complainant and other flat owners as well as their aged, ailing family members have to use staircase and as a result they regularly fell in trouble in various ways.  Be it also mentioned here that in case of medical emergency doctors are not attending patients of flats situated at 2^nd, 3^rd, 4^th floors.  On the other hand the respondents assured all the 13 flats owners to provide Garages for their two wheelers(bikes), but the asbestos /tin shaded garage area which the respondents constructed for the flat owners at the abovementioned project has not sufficient place for all the flat owners, as a result remaining persons keep their bikes under the open sky and their bikes has been damaged day by day.

The complainant and other flat owners on 24.2.2020 send a legal notice through legal aid center of Barabazar, Chandannagar to the respondents and after receiving that notice on 8.3.2020 the respondents verbally assured the complainant as well as other flat owners that they should complete theentire schedule mentioned pending works within a month, but all in vain.  On 25.02.2021 again all the flat owners send a legalnotice to the respondents as reminder, receiving the same the respondents verbally assured again all flat owners that they should complete the entire schedule mentioned pending works very soon but till date not a single work done.

Complainant filed the complaint petition praying direction upon the opposite party for installation the lift and do all pending works and to pay a sum of Rs. 1800000/- for harassment and mental agony as compensation and to pay a sum of Rs.100000/- for litigation cost.

Defense Case:-  The opposite party No. 4 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that as per the agreed terms and condition of Development Agreement the respondents has completed all the schedule works but in the development agreement no where it is mentioned that the developers shall built and construct tin shade or asbestos shade for parking for bikes and scooters but for the beneficial interest of the inhabitants of the aforesaid apartment as per their request the respondents has initiated to raise tin shade or asbestos shade for parking for bikes and scooters and op no. 4 has made retirement or withdrawal petition from the partnership firm but as other partners have not settled for which civil suit is pending amongst the partners. The complainant in connivance with other partners has filed the instant case to harass the op no. 4. As agreed in development agreement and sale deed all construction works are completed, lift has been installed and in working position. As per verbal demand of flat owners it has been agreed by the partners of developer firm that they will arrange a tin shed for parking of two wheeler but it is neither stated in the sale deed nor mentioned in sanction plan. Under the above facts and circumstances the complaint petition should be dismissed with an exemplary cost.

The opposite party No. 5 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the op no. 5 is the owner of the property under dispute and over which the other ops had/ have constructed the multi storied building developers as per registered development agreement and the said development agreement has been registered before the office of the ADSR, Chandernagore, Hooghly on 26.8.2015 vide no. 2137 for the year 2015. According to the said development agreement the op nos. 1 to 4 agreed to undertake the said development project or works and entering into this agreement with the op no. 5 and the op no. 5 had/ has delivered and hand over the possession of the land with existing old building to the developers. It has been settled between the op no. 5 and the other ops that developers shall bear all costs and expenses for construction and completion of the new multistoried building upon the property of the op no. 5 as reflected in para 10 of the development agreement so the op no. 5 has no liability regarding the construction of multistoried building as alleged by the petitioner. The allegations as leveled against the op no. 5 are all baseless without having any  legs to stand upon and the petitioner would have no claim and/ or blame against the op no. 5. The op no. 5 did not enter into any agreement with the petitioner at any point of time. As such the terms and conditions of the alleged agreement are not at all binding upon the op no. 5. The petitioner for his wrongful gain and in order to harass the op no. 5 has instituted the instant case against op no. 5. So, the present case of the complainant will be dismissed with cost.

Inspite of receiving notice op nos. 1 to 3 did not appeared. So, the case was running against ex parte against them vide order no. 8 dt. 20.5.2022.

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 nos. 4 and 5.

            The answering opposite party nos. 4 and 5 filed separate evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party nos. 4 and 5 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 agents of the complainant and the opposite party nos. 4 and 5 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 Chandannagar, 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 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 the OP-1,2,3 & 4 are the developers / promoters in respect of the project and / property described in the schedule of the complaint petition.
2. It is also admitted fact that OP-5 is the owner of the land where the said project has been constructed.
3. There is no controversy over the issue that one development agreement was executed in between OP-1,2,3 & 4 with OP-5 in respect of the development of the said property.
4. There is no dispute over the issue that the said development agreement has been registered in the ADSR, Chandannagar.    
5. It is admitted fact that the said project has been initiated under name and style “Sandhya Apartment”.
6. It is also admitted fact that the complainant and other flat owners entered into an agreement for sale in respect purchasing flats of the said apartment and the complainant executed agreement for sale in respect of purchasing the flat no.4B and the said agreement was executed on 5.2.2018.
7. There is no controversy over the issue that the said agreement for sale executed in between complainant and OP-1,2,3 &4 have been registered before the ADSR, Chandannagar on 6.8.2018.
8. There is no dispute over the issue that  the complainant had paid entire construction money in the matter of purchasing the said flat no.4B of “Sandhya Apartment”.     
9. It is admitted fact that the OP-1,2,3 &4 received the said consideration money from the complainant.
10. There is no controversy over the issue that the OP-1,2,3 &4 developed the said property and after completion of the project handed over possession of the said flat no.4B to the complainant.
11. There is no dispute over the issue that the op-1,2,3&4 executed and registered the sale deed in favour of complainant.       
12. It is admitted fact that neither the complainant nor the OP-1,2,3 &4 submitted any prayer in the matter of conducting local inspection commission over the suit property which has been described in the schedule of the complaint petition.
13. It is also admitted fact that the OP-1,2,3 inspite of entering appearance in this case have not contested this case finally but the OP-4 contested this case.
14. There is no dispute over the issue that over the pretext of retirement of OP-4 from the partnership firm and in connection with realization of the accounts of the said partnership firm where OP-1,2,3 &4 are partners, one civil suit is pending and that has not yet been disposed of.   
15. There is no controversy over the issue that the OP-4 contested this case but the complainant has not highlighted any grievance or prayed any relief against OP-5 who is the land owner.                  

              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 that the OP-1,2,3 &4 have not yet completed the works of the said project and have not yet installed the lift and also have not made construction of the garage space inspite of there was agreement which is an ideal instance of unfair trade practice and deficiency of service but on the other hand OP-4 has taken the defence alibi that the developers already completed all the works of the said project and complainant and other flat owners have been residing there.

            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 neither the complainant nor the OP have prayed any local inspection commission or the local investigating commission over the suit property.  Thus there is no proof before this district commission that the OP-1,2,3,&4 have completed the said project.  For that reason the complainant is entitled to get the relief which has been prayed in this case.

            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. 99 of 2021 be and the same is allowed on contest but in part against OP-1,2,3 &4 but it is dismissed against OP-5.

It is held that the complainant is entitled to get an award directing the OP-1,2,3 &4 to complete the remaining works such as installation of lift, construction of garage etc. of the said project within two months from the date of this order.  Otherwise the complainant is given liberty to execute this award as per law.

No order is passed in the matter of granting compensation or litigation cost in favour of the complainant as because this case has been delayed in the matter of disposal for the reason of complainant.

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.