State Consumer Disputes Redressal Commission
Smt. Ujjala Mondal vs M/S. P.N. Construction on 7 January, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/1044/2014 (Arisen out of Order Dated 12/08/2014 in Case No. Complaint Case No. CC/297/2013 of District North 24 Parganas) 1. Smt. Ujjala Mondal W/o Dr. Kartick Mondal, BC-252, Samarpally, Kestopore(Krishnapur), Kolkata - 700 102, Home Maker, P.S. Lake Town. ...........Appellant(s) Versus 1. M/s. P.N. Construction Promoter & Developer, represented by Prop., Smt. Kalpana Saha, 176 Block-B, Bangur Avenue, Kolkata -700 055, P.S. - Lake Town. 2. Smt. Kalpana Saha W/o Lt. Pradip Narayan Saha, Sole Prop., M/s P.N. Construction, Promoter & Developer, 176 Block-B, Bangur Avenue, Kolkata -700 055, P.S. - Lake Town. 3. Sri Suvodeep Saha S/o Lt. Pradip Narayan Saha, 176 Block-B, Bangur Avenue, Kolkata -700 055, P.S. - Lake Town. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Appellant: Mr. Salil Kumar Sarkar, Advocate For the Respondent: Ms. Tanusree Chatterjee, Advocate Ms. Tanusree Chatterjee, Advocate Ms. Tanusree Chatterjee, Advocate ORDER
Date of Hearing : 04.01.2016 Date of Judgement : Thursday, the 7th day of January, 2016 Judgement The present appeal under Section 15 of the Consumer Protection Act,1986 (hereinafter referred to as the Act) is at the instance of the complainant to impeach the judgement and final order dt. 12.08.2014 passed by the Ld. District Consumer Disputes Redressal Forum, North 24-Parganas at Barasat (for short, the Ld. District Forum) in consumer Complaint No. 297 of 2013 whereby the consumer complaint initiated by the appellant under Section 12 of the Act was dismissed on contest with costs of Rs. 10000/-.
The appellant herein initiated the complaint before the Ld. District Forum alleging that on 29.6.2011 she accepted the offer of Respondent Nos. 1 &2 to purchase of a self-contained flat measuring about 840 sq. ft lying and situated on the third floor being Municipal Holding No. R.G.M/945, Krishanapur Samarpally under P.S Baguihati within District North 24-Parganas at a consideration of Rs. 18,48,000/- at the rate of Rs. 2200/- per sq. ft. The respondents promised to deliver the possession of the said flat by 29.12.12. On the basis of the assurance of the respondents she has paid a total sum of Rs.12,00,000/- as part consideration money. It has also been alleged that a fresh agreement for sale was executed wherein the agreed amount of rate of flat had been enhanced at Rs.2300/- per sq. ft. from Rs.2200/- per sq. ft. and the appellant agreed with the same and put her signature. However, due to non-delivery and non-execution of the flat in question the consumer complaint was initiated.
The Respondents No. 1 to 3 being opposite parties by filing a written version have stated that appellant herself entered into transaction with one Tapan Dey (since deceased) and paid money to him but the appellant made no transactions whatsoever with them. According to respondents, the complainant/appellant has filed the case with malafide attempt to grab the property.
After assessing the evidence on record, the Learned District Forum by the impugned order dismissed the complaint with costs, which prompted the complainant to prefer this appeal.
We have scrutinised the materials on record and considered the submissions advanced by the Ld. Advocates appearing for the parties.
Having heard the Ld. Advocates for the respective parties and on going through the materials on record we find that in support of her rights and contentions the appellant has filed one General Power of Attorney dt. 20.01.11 executed by Respondent No. 2 in favour of her son Shri Suvadip (Respondent No.3) and one Tapan Dey. The said Tapan Dey has passed away on 08.8.2012. The legal heirs of the said Tapan Dey has not been impleaded as parties to this case. The appellant claiming herself as a purchaser has filed the complaint against the Promoter/Developer and its proprietor.
Be that as it may, the said General Power of Attorney executed by Respondent No.2 authorising the Respondent No. 3 and Tapan Dey, since deceased to execute and register deeds of sale in respect of a multi-storied building in which the appellant claiming herself to be a purchaser of a flat. The record reveals that there was no formal agreement in between the developer and the purchaser and as such it has become quite impossible to understand why the appellant has paid the money to Tapan Dey, since deceased on four occasions i.e. on 19.6.2011, 19.9.2011, 17.01.2012 and 05.7.2012 amounting to Rs.4,00,000/-, Rs.3,50,000/-,Rs.3,50,000/- and Rs.1,00,000/- respectively totalling Rs. 12,00,000/-.
The Ld. Advocate appearing for the appellant has submitted that being strengthen into the Power Attorney Tapan Dey, who died on 08.8.2012 has received Rs.12,00,000/- for handing over flat No. B on the third floor of the building. He has referred the money receipts in this regard. The said Tapan Dey was admitted in Belle view Clinic from 20.07.2012 to 08.8.2012. It is not clear before us whether Respondents nos. 1 to 3 had any knowledge about receipt of money by Tapan Dey as part consideration amount of the flat in question.
The facts and circumstances of the case clearly indicate that there are several contentious issues which cannot be adjudicated by a Consumer Forum. The Ld. Advocate appearing for the respondents referred a decision of Hon'ble National Commission reported in 2015(1) CPR 562 (Harshad Bhai Shah and another -vs- Abhinav Engineers and others) has submitted that there can be no enforceable right without any agreement and when the appellant has failed to produce any agreement showing eagerness of the developer to transfer a flat in favour of the appellant, Ld. District Forum was justified in dismissing the complaint.
What we find from the record is that the appellant after suffering defeat before the Ld. District Forum has filed a suit declaration, specific performance of contract, permanent and mandatory injunction in respect of the flat in question before the Ld. Civil Judge(Senior Division), 1st Court at Barasat being TS No.1122 of 2015 and in that suit the Ld. Civil Judge was pleased to pass an ad-interim order of injunction restraining the respondents from transferring the flat in question to any third party. Therefore, when same contentious issues are required to be adjudicated, the Ld. District Forum should have dismissed the complaint on that ground alone as the dispute can only be resolved by a competent Civil Court. The Ld. District Forum should not be obsessed with the object behind the enactment of the Act which is meant for summary disposal of a consumer dispute for a limited purpose. There was hardly any scope on the part of Ld. District Forum to consider the evidence in details to ascertain the actual state of affairs. That being so, the Ld. District Forum had no occasion to dismiss the complaint with costs because it may so happen that by adducing cogent and reliable evidence the complainant may succeed before the competent Civil Court. In that view of matter there was no reason for imposition of costs upon the complainant as she approached a consumer forum claiming herself as purchaser and further it has not been mentioned in the judgement that the complaint is frivolous or vexatious.
In that view of the matter, the appeal is allowed on contest in part to the extent that the complainant/appellant shall not be liable to pay costs . However. the order of dismissal of consumer complaint is affirmed as the dispute is pending before a competent Civil Court. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER