State Consumer Disputes Redressal Commission
M/S Universal Consortium Of Enggrs. (P) ... vs Sri Barid Baran Roy on 19 May, 2014
DRAFT STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, MIRZA GHALIB STREET KOLKATA 700 087 S.C. CASE NO.FA/620/2013 [MA/115/2014 arising out of FA/620/2013] DATE OF FILING:11/06/13 DATE OF ORDER:
19/05/14 APPELLANTS : 1) M/s Universal Consortium of Enggrs. (P) Ltd.
239, Deshapran Sasmal Road P.S. Jadavpur Kolkata-700 033
2) Prof. Gopal Mitra S/o-Late K. C. Mitra Managing Director of Appellant No.1 239, Deshapran Sasmal Road P.S. Jadavpur Kolkata-700 033
3) Sri Devjoy Mitra S/o-Prof. Gopal Mitra Director of Appellant No.1 239, Deshapran Sasmal Road P.S. Jadavpur Kolkata-700 033 RESPONDENT : 1) Sri Barid Baran Roy S/o-Late Prasad Chandra Roy 5, Russa Road South 3rd Lane P.S. Jadavpur, Kolkata-700 033 PROFORMA RESPONDENTS : 2) Smt. Bithika Roy W/o-Late Arun Kumar Roy
3) Sri Prabir Roy S/o-Late Arun Kumar Roy
4) Ms. Jhuma Roy D/o-Late Arun Kumar Roy
5) Sri Tapan Kumar Roy S/o-Late Prasad Chandra Roy All are residing at 5, Russa Road South 3rd Lane P.S. Jadavpur, Kolkata-700 033
6) Smt. Kasthury Biswas Nee Roy D/o-Late Arun Kumar Roy & W/o-Biswanath Biswas 34, Charu Avenue P.S. Charu Market Kolkata-700 033 BEFORE : HONBLE JUSTICE : Mr. Kalidas Mukherjee President HONBLE MEMBER : Mrs. Mridula Roy HONBLE MEMBER : Mr. Tarapada Gangopadhyay FOR THE APPELLANTS : Mr. Prabir Basu Ld. Advocate Ms. Binota Roy Ld. Advocate FOR THE RESPONDENTS : Mr. G. Gupta Roy Ld. Advocate
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: O R D E R :
HONBLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT This order relates to hearing on the MA 115 of 2014.
The case of the Misc. Applicant/Appellant/Developer, in short, is that this Appeal has been preferred challenging the impugned judgment dated 10/05/13 in case no.CC 107 of 2012 passed by Learned District Forum, Alipore, South 24-Parganas allowing the case and directing the OP Nos.1 to 3 to hand over the complete property in question as per development agreement along with completion certificate within one month from the date of judgment failing which the Complainant shall be at liberty to put the decree in execution in accordance with law. The OP Nos.1 to 3 were also directed to pay a sum of Rs.3 lakh as compensation for non-delivery of possession within 55 days and a sum of Rs.5 lakh for mental pain and agony and the cost of Rs.25,000/- totalling to Rs.8,25,000/- within one month from the date of passing judgment failing which the said amount shall carry interest @ 10% p.a. from the date of default till realisation. During the pendency of the Appeal the Respondent/Complainant filed an execution case being EA 178 of 2013. The Appellant moved an application for stay of the execution proceedings and this Commission was pleased to direct that the execution proceedings before the Learned District Forum be stayed. During the continuation of the order of stay the Complainant/Respondent in utter disregard and disobedience to the said order of stay made an attempt to break open the padlock of the flats being flat nos.A-3 and A-4 and upon being resisted by the men and agents of the Appellants, the Respondent No.1 abused them in filthy language and further attempted to break open the padlock. Upon further resistance being given, the men and agents of the Appellants herein were even physically assaulted and were threatened with dire consequences. Having no other alternative the Appellants rushed to the Police Station and lodged a complaint. As no action was initiated by the Police Station the Appellants herein filed an application u/s 156(3) of the Code of Criminal Procedure stating the entire facts and circumstances and the Ld. A.C.J.M., Alipore was pleased to direct the O/C, Jadavpur P.S. by passing an order dated January 24, 2014 to treat the application being case no.AC 210/2014 as F.I.R. and to investigate the same.
Under such circumstances, the Misc. Applicant/Developer has prayed for an order issuing direction to the Respondent No.1 to show cause as to why the appropriate proceeding u/s 27 of the C. P. Act should not be drawn up against him and thereafter to draw up a proceeding and appropriate order may be passed. The Misc. Applicant/Developer has also prayed for an order directing the Respondent No.1/Complainant to restore possession of the flat nos.A-3 and A-4 of the premises to the Appellants/Developers.
Written objection has been filed by Respondent No.1/Complainant contending, inter alia, that the Miscellaneous Application filed by the Appellant is misconceived and liable to be dismissed. The petition has been filed with the sole motive to drag the instant appeal and also harass the Respondent No.1/Complainant. The petition is full of suppression of material facts.
The Respondent No.1/Complainant is the co-owner of undivided 1/3rd share of the premises. The Respondent No.1 along with other co-sharers entered into a development agreement with the Appellants for development of the said property under certain terms and conditions stipulated in the development agreement dated 24/05/07. As the Appellant/Developer failed and neglected to hand over the Respondent No.1s complete allocation and compensation money in terms of the Appellants undertaking by letter dated 05/11/11 in spite of repeated demands, the Complainant/Respondent initiated a complaint case against the Developer before the Learned District Forum. During the period from the date of filing of the complaint case till final hearing thereof (CC 107 of 2012), the Developer unofficially handed over the partial possession of the Respondents allocation.
The said facts were categorically stated in the BNA filed before the Learned District Forum. The said contention of the Respondent/Complainant has nowhere been challenged or controverted in the counter argument of the Developers.
Under such circumstances, the Learned District Forum passed the impugned judgment and order. On the basis of such possession, the Respondent No.1s tenant Tapas Trading Company has taken electricity from CESC Ltd. under the order passed by Hon'ble High Court, Calcutta in W.P. No.23674 (W) of 2012 on 19/10/12 in view of the resistance by the Appellants. The allegation of trespass does not arise at all. In the BNA in connection with the instant appeal bearing no.FA 620 of 2013 at Paragraph-10 it has been stated that the Appellant No.1 handed over possession of three flats for doing extra works to the Respondent No.1 and two office rooms to the tenants without possession letter and copy of the completion certificate.
The Learned Counsel for the Misc. Applicant/Appellant/Developer has submitted that nowhere the Respondent/Complainant stated about the date of alleged delivery of possession. It is contended that in the complaint it has been averred that as per development agreement the OP will hand over possession in respect of the flats and car parking space. It is submitted that in view of such averment and evidence the Learned District Forum passed an order for delivery of possession. It is contended that in the execution petition also there is no mention of the date of delivery of possession. It is submitted that as per development agreement the Developer, admittedly, is in possession of the premises and in absence of any specific averment or evidence it cannot be said that the Respondent No.1/Complainant got possession from the Appellant/Developer. The Learned Counsel has referred to the question no.43 put to the Complainant and the reply even thereto. It is submitted that in spite of the order of stay of further proceedings of the execution case the Respondent No.1/Complainant without any order from the Learned District Forum took possession of the flat and, as such, the Appellant was compelled to lodge a criminal case. The Learned Counsel for the Appellant has submitted that temporary mandatory injunction may be passed for restoration of possession in favour of the Appellant/Developer. The Learned Counsel for the Misc. Applicant/Appellant has referred to the decisions reported in AIR 1990 SC 867 [Dorab Cawasji Warden Vs.Coomi Sorab Warden]; (1973) 2 SCC 81 [Amanullah Vs. State of U.P.]; 100 CWN 408 [Central Bank of India Vs. M/s Usha Aluminium Industries]; C.O. No.1685 of 2000 [Bhaskar Chandra Roy Vs. Indrajit Roy].
The Learned Counsel for the OP of the Miscellaneous Application/Respondent No.1/Complainant has submitted that the Appellant is the power of attorney holder under the Respondent No.1. It is contended that the custody of the agent tantamounts to custody of the principal, although as per W.V. other co-sharers have been handed over possession. It is contended that since the Respondent No.1/Complainant/Dhr is the owner of the property to the extent of 1/3rd share no order of injunction can be passed. It is contended that the stay order was passed by this Commission as to the further proceedings of the execution case pending before the Learned District Forum. It is contended that from the judgment of the Hon'ble High Court, Calcutta in W.P. No.23674 (W) of 2012 it would appear that the Respondent is in possession of the property and the order was passed directing the Respondent No.2 to effect supply of electricity to the Petitioners premises. It is contended that flats have been handed over to the Respondent No.1 without possession letter and this contention of the Respondent has not been controverted by the Appellant. It is submitted that by mere filing of the criminal case by the Developer against the consumer Complainant would not change the status of the parties.
We have heard the submission made by both sides and perused the papers on record. By order no.5 dated 08/11/13 the matter was fixed on 06/03/14 for hearing of the Appeal and filing BNA. Vide order no.6 dated 06/03/14 the Appellant filed Miscellaneous Application bearing no.115 of 2014 regarding alleged forcible taking over possession by the Respondent/Complainant. As per the order dated 02/04/14 of the Hon'ble High Court, Calcutta in C.O.778 of 2014 the order dated 06/03/14 was set aside and this Commission has been directed to dispose of the Miscellaneous Application within four weeks from the date of communication of the order. The written objection was filed by the Respondent No.1 against the Miscellaneous Application and thereafter the matter was heard on 05/05/14.
There was direction in the judgment of the Learned District Forum upon OP Nos.1 to 3 to hand over the complete property in question as per development agreement along with completion certificate, payment of compensation and costs. It is the specific contention of the Respondent No.1/Complainant/Dhr that partial possession was given without issuing possession letter. The Learned Counsel for the Appellant/Misc. Applicant has referred to the question no.43 to the Complainant as per questionnaire which runs as follows:
43. Question: you got the flat?
In answer the Complainant replied as follows:
Answer to Q. No.43.
The opposite party no.1 had only handed over the flats without possession letter and copy of completion certificate allowing the complainant to do extra work as per his choice and I have made various works by appointing men and mistries at my costs and kept the said flats under lock and key and at present the opposite party no.1 to 3 have put pad locks on my locks at the entrance of the flats after filing of the present case forcibly.
From the reply of the Complainant as against question no.43 it would appear that the OP No.1 had only handed over the flats without possession letter and completion certificate.
Moreover, from the order of the Hon'ble High Court, Calcutta in W.P. No.23674 (W) of 2012 it appears that Tapas Trading Company filed the writ petition against CESC Ltd. & Ors. wherein the Respondent No.2 was directed to supply electricity to the Petitioners premises. It has also been stated in Paragraph-7(iv) of the written objection against the Miscellaneous Application that on the basis of the possession the Respondent No.1s tenant Tapas Trading Company has taken electricity from CESC Ltd. under the order passed by the Hon'ble High Court, Calcutta in connection with the aforesaid writ petition in view of the resistance by the Appellants. In view of the circumstances aforesaid, we are of the considered view that the contention of the Appellant herein as raised in the Miscellaneous Application is not sustainable.
The Miscellaneous Application bearing no.115 of 2014 is dismissed. Fix 16/10/14 for hearing of the Appeal. Interim order will continue till the next date.
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MEMBER(TG) MEMBER(L) PRESIDENT