State Consumer Disputes Redressal Commission
Mandakini Banerjee vs Sri Sandipan Chakraborty on 30 October, 2013
State Consumer Disputes Redressal Commission STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, MIRZA GHALIB STREET KOLKATA 700 087 S.C. CASE NO.RP/01/2013 (Arising out of order dated 26/11/12 in Case No.CC/103/2011 of District Consumer Disputes Redressal Forum, Chinsurah, Hooghly) DATE OF FILING:03/01/13 DATE OF FINAL ORDER:30/10/13 PETITIONER : Mandakini Banerjee W/o-Late Debnarayan Banerjee Falt No.A-6/7, Konnagar Abasan 134/3, C. S. Mukherjee Street Konnagar P.S. Uttarpara, District-Hooghly RESPONDENTS : 1) Sri Sandipan Chakraborty S/o-Ashim Kumar Chakaraborty Flat No.B-6/15, Konnagar Abasan 134/3, C. S. Mukherjee Street Konnagar P.S. Uttarpara, District-Hooghly 2) Sri Somesh Banerjee S/o-Late Debnarayan Banerjee 1-32/1, S.C. Chatterjee Street P.O. Konnagar, District-Hooghly 3) Konnagar Abasan Cooperative Society Ltd. 134/3, C. S. Mukherjee Street Konnagar P.S. Uttarpara, District-Hooghly PROFORMA RESPONDENTS : 4) Sri Umesh Banerjee S/o-Late Debnarayn Banerjee 34, Beni Banerjee Avenue Flat No.2, Kolkata-700 031 5) Smt. Uma Mukherjee W/o-Swapan Mukherjee D/o-Late Debnarayan Benerjee 14/E, Mahim Halder Street Kolkata-700 026 BEFORE : HONBLE JUSTICE : Sri Kalidas Mukherjee President HONBLE MEMBER : Sri S. Coari HONBLE MEMBER : Smt. M. Roy FOR THE PETITIONER : Mr.Rajkumar Maji Ld. Advocate FOR THE RESPONDENTS : Mr. Manas Basu Ld. Advocate : O R D E R :
HONBLE JUSTICE SRI KALIDAS MUKHERJEE, PRESIDENT This revisional application is directed against the order no.14 dated 26/11/12 passed by Learned District Forum, Hooghly in CDF Case No.103 of 2011 rejecting thereby the petition filed by the OPs challenging the maintainability of the case.
The complaint was filed stating that Debnarayan Banerjee purchased a flat as a member of Cooperative Society, that is, OP No.5. He contemplated to transfer the flat and the complainant agreed to purchase the same.
In Para-6 of the complaint it has been stated that with the agreement to purchase the flat of Debnarayan Banerjee the complainant has become a consumer and Debnarayan Banerjee was the service provider. Accordingly a tripartite agreement was executed on 05/05/11 for the transfer of the flat at a consideration of Rs.5,50,000/-. The complainant paid sum of Rs.50,000/- as advance. The complainant in all paid Rs.1,50,000/-.
The deed of conveyance has not been executed.
The petitioner herein/OP No.1 of the complaint filed a petition before the Learned District Forum challenging the maintainability of the complaint case. The Learned District Forum after hearing the parties passed the impugned order.
The Learned Counsel for the petitioner herein has submitted that the complainant has a flat and on 05/07/11 Debnarayan Banerjee, husband of OP died, but the petitioner herein did not know that there was an agreement between her and the complainant for purchase of the flat. It has been contended that Debnarayan Banerjee, since deceased, was not a service provider by virtue of the tripartite agreement. It was stipulated in the agreement that within six months the flat was to be transferred, but the complainant filed the complaint earlier and, as a result, the complaint was premature. It has been submitted that as per the bye laws the membership can be granted upon full payment, but the complainant did not pay the consideration money in full.
It is contended that the complainant has a flat in B category and as per bye laws the complainant cannot get another flat. It has been submitted that without payment of consideration money in full, membership has been granted to the complainant which was against the bye laws. The Learned Counsel for the petitioner has referred to the decision reported in 2012 (3) CLJ (Cal) 305 [Smt. Santi Jha Vs. Sri Gurdip Singh Saluja @ Dip & Anr.].
The Learned Counsel for the OP No.1/complainant has submitted that on 05/05/11 agreement was executed with Debnarayan Banerjee and the consideration money was fixed at Rs.5,50,000/-. It has been contended that the complainant got membership on 08/05/11 on payment of Rs.2,750/- as transfer fee.
It has been contended that since there is a tripartite agreement for the transfer of a flat the petitioner herein is a service provider. The Learned Counsel for the OP No.1/complainant has referred to the decision reported in 2004 (1) CPR 35 (SC) [Secretary, Thirumurugan Co-operative Agricultural Credit Society Vs. M. Lalitha (dead) through L.Rs.] We have heard the submission made by both sides and perused the papers on record. On perusal of the tripartite agreement in question, we find that there is no provision of rendering any service. It was an agreement for sale simpliciter for the transfer of a flat. Under such circumstances, we are of the considered view that the petition of complaint filed by the Learned District Forum was not maintainable. The Learned District Forum was not justified in rejecting the petition filed by the OP No.1 challenging the maintainability of the complaint case.
In the result, the revisional application succeeds and the same stands allowed. The impugned order is set aside. The petition of complaint is dismissed. We make no order as to costs.
MEMBER(SC) MEMBER(L) PRESIDENT