State Consumer Disputes Redressal Commission
Smt. Shefali De vs Smt. Dipti Bhattacharjya on 11 December, 2013
DRAFT STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, MIRZA GHALIB STREET KOLKATA 700 087 S.C. CASE NO.CC/37/2010 DATE OF FILING:31/05/10 DATE OF FINAL ORDER:11/12/13 COMPLAINANT : Smt. Shefali De W/o-Late Aninda Kumar De Flat No.1A, Premises No.38/1 Mahim Halder Street P.S. Kalighat Kolkata-700-700 026 OPPOSITE PARTIES : 1) Smt. Dipti Bhattacharjya W/o-Dr. Debi Mohan Bhattacharjya 14A/1, Gariahat Road P.O. Jodhpur Park P.S. Lake, Kolkata-700 068 2) Smt. Jharna Biswas W/o-Swapan Kumar Biswas K-1, Flat No.6 No.10, Gokhale Road P.S. Bhownaipore Kolkata-700 020 3) Smt. Sukla Lahiri W/o-Ramesh Lahiri Flat No.12, Block-21 202, Manicktala Main Road P.S. Manicktala Kolkata-700 054 4) Sri Indrajit Nandy S/o-Late Motilal Nandy 11/5/A, Dharmatala Road Belur, P.O. Belurmath P.S. Bally Howrah-711 201 Business office at 4/2, Daws Temple Road Belur, P.O. Belurmath P.S. Bally Howrah-711 201 BEFORE : HONBLE JUSTICE : Sri Kalidas Mukherjee President HONBLE MEMBER : Smt. M. Roy FOR THE COMPLAINANT : Mr. Sunit Kr. Ghosh Ld. Advocate FOR THE OPPOSITE PARTIES : Mr. Sandip Ghosh Ld. Advocate Mr. Radha Gobinda Gupta Ld. Advocate : O R D E R :
HONBLE JUSTICE SRI KALIDAS MUKHERJEE, PRESIDENT This is a complaint case filed by the petitioner against the OPs praying for a direction upon the OPs to execute and register the deed of conveyance in respect of the flat in question, to give vacant and peaceful possession of the flat, to pay compensation of Rs.3 lakh and litigation cost of Rs.25,000/-.
The case of the complainant, in short, is that her husband Late Aninda Kumar De was a British citizen who married the complainant in Kolkata as per Hindu rites and rituals. The marriage was duly solemnized and consummated, but no child was born out of the said wedlock. Her husband entered into an agreement with the OPs on 23/05/08 executed by OP No.4 as developer and also on behalf of the owners, that is, other OPs being their lawful attorney. The husband of the complainant entered into the agreement for purchase of a flat at a consideration of Rs.16,49,500/- and paid Rs.16 lakh. The possession of the flat was given to the husband of the complainant on or about 03/08/08. The complainant along with her husband shifted to the flat in question sometime in the month of August, 2008 taking their household belongings. Her husband was seriously ill and he had to be shifted to Kolkata in the flat of her sister. He died in the Lansdowne Nursing Home on 01/09/09. Thereafter the complainant requested the OPs to execute and register the deed of conveyance on receipt of the balance amount of consideration money amounting to Rs.49,500/-, but to no effect. On 28/03/10 the complainant went to the subject flat but found the same under someones lock and key. The G.D. Entry No.362 dated 04/04/10 was lodged. On 06/05/10 the complainant informed the OP No.4 to execute and register the deed of conveyance on receipt of the balance amount. But OP No.4 informed that he had handed over the key of the subject flat to one Ms. Isabelle Cauvaus Froufe. On 17/04/10 the complainant had sent legal notice to all the OPs. In spite of that the OPs did neither deliver the possession of the flat nor execute and register the deed of conveyance in favour of the complainant. For the aforesaid reasons, the complaint was filed.
The OPs have filed the W.V. denying all the material allegations. It is the case of the OPs that the case is not maintainable and the complainant is not a consumer. The complainant has not come with clean hands and she is guilty of suppression of material facts. Aninda Kumar De was a British citizen who died on 01/09/09 leaving behind his only son namely Louis Amar De and a daughter Anita De. Complainants husband was looking for a flat for himself, but not for the complainant because a divorce suit was pending between them.
The complainants husband did not take physical possession of the subject flat since additional work was directed to be done. Complainants husband executed a will in London on 20/08/08 giving his estates to his son and daughter.
Probate was granted by the Court in England on 30/07/10. On 20/02/10 Ms. Isabelle Cauvaus Froufe, the mother as well as the constituted attorney of Louis Amar De and Anita De cancelled the agreement for sale dated 23/05/08 and received back the consideration money of Rs.15 lakh from the developer, the respondent no.4. The developer has already sold out the subject flat to another purchaser with the full knowledge of the legal heirs of Late Aninda Kumar De.
The Learned Counsel for the complainant has submitted that Late Aninda Kumar De divorced his first wife in 1990 and thereafter he married the complainant, but no issue was born out of the said wedlock. The husband of the complainant entered into an agreement with the OPs for the purchase of a flat at a consideration of Rs.16,49,500/- and the sum of Rs.16 lakh was paid. It is contended that the possession was delivered on 03/08/08, but due to the illness of the husband they had to stay in the residence of her sister. It is submitted that after the death of the husband of the complainant on 01/09/09 the complainant asked the OPs to execute and register the deed of conveyance. It is contended that on 28/03/10 the complainant found that the flat was under the lock and key of some other person and the OP No.4 told that he had handed over the key to the first wife of Late Aninda Kumar De. It is submitted that although the probate was granted by foreign Court the question of title was not decided in such a proceeding. It is contended that the first wife of the complainants husband cancelled the agreement and received back the amount of consideration money before the granting of probate. It is contended that the complainant was always ready and willing to pay the balance amount of consideration money, but the OPs declined to perform their part of contract.
The Learned Counsel for the OPs, on the other hand has submitted that the possession was not handed over as the construction was not complete and additional works were to be done. It is submitted that the first wife of the complainant came to the OPs and produced the will executed by the husband of the complainant and that the consideration money was refunded to her under proper signature and endorsement to that effect. It is contended that probate was granted by competent Court and under such circumstances, the complainant has no right to file this complaint. It is submitted that the complainant suppressed the material facts in the complaint about the first wife, son and daughter of Late Aninda Kumar De. It is contended that there is no deficiency in service on the part of the OPs. The Learned Counsel for the OPs has referred to the decision reported in 2012 (3) CLJ (Cal) 291 [Smt. Rita Das Vs. M/s Jayashri Ghosh & Ors.].
We have heard the submission made by both sides and perused the evidence and other documents on record. It is an admitted fact that Late Aninda Kumar De had his first wife Ms. Isabelle Cauvaus Froufe who gave birth to one son Louis Amar De and daughter Anita De. It is also an admitted fact that Late Aninda Kumar De entered into an agreement with the OPs for the purchase of the subject flat. It is the contention of the Learned Counsel for the complainant that Aninda Kumar De divorced his first wife Ms. Isabelle Cauvaus Froufe, foreign national in 1990 and thereafter he married the complainant. It is the contention of the Learned Counsel for the OPs that a divorce suit was pending between Aninda Kumar De and the complainant and, as such, the complainant alone entered into an agreement with the OPs for the purchase of the flat. On this point as regards question no.2 put by the OPs the complainant answered that Mat. Suit No.856 of 2008 was dismissed for default as has been told to her by her husband. Question no.13 was put to the complainant and the answer was given as follows:
Smt. Dey as per bill dated 19.02.2010 of Sumit Kumar Ghosh your Advocate, it is clear that the entire matter was discussed in presence of you and Mrs. Maria the first wife of Late Aninda Kumar Dey in Presence of your advocate Sumit Kumar Ghosh and as such why are you denying that you have no knowledge regarding Will of late Aninda Kumar Dey? Since I do not trust any word of said Mrs. Maria.
Question no.15 was put to the complainant and the answer was given as follows:
Smt. Dey do you know Mr. Aninda Kumar Dey did not take any physical possession of the suit property/flat, as because the Flat in connection was not quite ready and he was not satisfied with the finishing work and he asked the respondent No.4 to carry out some further work, after which he undertook to pay the sums of money due plus the cost of additional work requested? As per document, yes.
Question no.18 was put to the complainant and the answer was given as follows:
Smt. Dey why did you not produce the judgment and decree for divorce is granted in Mat. Suit No.856 of 2008, in the court of District Judge at Alipore? Since I did not file the same, I did not think it proper.
Admittedly, the will was executed by Late Aninda Kumar De and the probate was granted in favour of the first wife Ms. Isabelle Cauvaus Froufe. The first wife also received back the refund of the consideration money on 20/02/10. Will was made on 20/08/08 and the probate was granted on 30/07/10. It is the contention of the Learned Counsel for the complainant that the consideration money was refunded to the first wife before the granting of probate. But the fact remains that probate was granted to the first wife of Late Aninda Kumar De. After the granting of probate, we are of the considered view that the complainant has no right to file this complaint claiming herself to be the consumer. Since the complainant is not a consumer, no relief can be granted in this case.
The petition of complaint is dismissed. We make no order as to costs.
MEMBER(L) PRESIDENT