National Consumer Disputes Redressal
Deba Prasad Roy vs Gopa Chowdhury & 5 Ors. on 8 December, 2021
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1426 OF 2017 (Against the Order dated 19/04/2017 in Complaint No. 328/2014 of the State Commission West Bengal) 1. DEBA PRASAD ROY LEGAL HEIR OF LTD.LAXMI MONI ROY,
233A/2/1,N.S.C.BOSE ROAD,P.S.-NETAJI NAGAR,P.O.-REGENT PARK,
KOLKATA-700092 WEST BENGAL ...........Appellant(s) Versus 1. GOPA CHOWDHURY & 5 ORS. 233A/2/1,N.S.C.BOSE ROAD,P.S.-NETAJI NAGAR,P.O.-REGENT PARK,
KOLKATA-700092 WEST BENGAL 2. M/S.B.M.ASSOCIATES,BUILDERS AND CONTRACTOR, 7/44B,P.S.-NETAJI NAGAR,P.O.-REGENT PARK,
KOLKATA-700092 WEST BENGAL 3. BASUDEV SARKAR PARTTNER OF M.S B.M.ASSOCIATES, 7/44B,P.S.-NETAJI NAGAR,P.O.-REGENT PARK,
KOLKATA-700092 WEST BENGAL 4. MOHAN DAS PARTNER OF M/S.B.M.ASSOCIATES, 51,SURYA SEN PALLY HARIDEVPUR,
P.S.-THAKURPUKUR, KOLKATA-700082 WEST BENGAL 5. MITALI GHOSE, LEGAL HAIR OF LTD.LAXMI MONI ROY,
67,ASWINI NAGAR,
P.S.-JADAVPUR,
P.O.-REGENT PARK,
KOLKATA-700040 WEST BENGAL 6. BABLI BASU, LEGAL HEIR OF LTD.LAXMI MONI ROY,
B-2,NIRUTI PARK SOCIETY,
MAKUR PARA ROAD,,P.O&P.S-MAKARPURA, BARODA-390010 ...........Respondent(s) FIRST APPEAL NO. 2452 OF 2017 (Against the Order dated 06/11/2017 in Complaint No. 403/2014 of the State Commission West Bengal) 1. DEBA PRASAD ROY 233 A/2/1, N.S.C. BOSE ROAD, FLAT NO.2A, P.S. NETAJI NAGAR, P.O. REGENT ESTATE. KOLKATA-700092 ...........Appellant(s) Versus 1. ASHUTOSH CHAUDHURY & 5 ORS. 233 A/2/1, N.S.C. BOSE ROAD, FLAT NO.2A, P.S. NETAJI NAGAR, P.O. REGENT ESTATE. KOLKATA-700092 2. M/S. B.M. ASSOCIATES BUILDER AND CONTRACTOR. R/O. 7/44 B, NETAJI NAGAR, P.S.-NETAJI NAGAR, P.O. REGENT ESTATE. KOLKATA.-700092 3. BASUDEB SARKAR, PARTNER OF M/S. B.M. ASSOCIATES. R/O. 7/44 B, NETAJI NAGAR, P.S.-NETAJI NAGAR, P.O. REGENT ESTATE. KOLKATA-700092. 4. MOHAN DAS, PARTNER OF M/S. B.M. ASSOCIATES. 51, SURYA SEN PALLY, HARIDEVPUR, P.S.- THAKURPUKUR. KOLKATA-700082 5. MITALI GHOSH, LEGAL HEIR OF LT. LAXMI MONI ROY. R/O. 67, ASWANI NAGAR, P.S. JADAVPUR, P.O.-REGENT PARK. KOLKATA-700040. 6. BABLI BASU, LEGAL HEIR OF LT. LAXMI MONI ROY. B-2, NIRUTI PARK SOCIETY, MARKAR PARA ROAD, P.O. AND P.S. MAKARPURA. BARODA-390010 ...........Respondent(s) FIRST APPEAL NO. 2460 OF 2017 (Against the Order dated 06/11/2017 in Complaint No. 387/2014 of the State Commission West Bengal) 1. DEBA PRASAD ROY 233 A/2/1, N.S.C. BOSE ROAD, FLAT NO.2B, P.S. NETAJI NAGAR, P.O.-REGENT ESTATE. KOLKATA-700092 ...........Appellant(s) Versus 1. INDRNIL GHOSH & 7 ORS. 233 A/2/1, N.S.C. BOSE ROAD, FLAT NO.2B, P.S. NETAJI NAGAR, P.O.-REGENT ESTATE. KOLKATA--700092 2. MITRA GHOSH. 233 A/2/1, N.S.C. BOSE ROAD, FLAT NO.2B, P.S. NETAJI NAGAR, P.O.-REGENT ESTATE. KOLKATA-700092 3. CHHABI GHOSH. 233 A/2/1, N.S.C. BOSE ROAD, FLAT NO.2B, P.S. NETAJI NAGAR, P.O.-REGENT ESTATE. KOLKATA-700092 4. M/S. B.M. ASSOCIATES BUILDERS AND CONTRACTOR. 7/44 B, NETAJI NAGAR, P.S.-NETAJI NAGAR, P.O.-REGENT ESTATE. KOLKATA-700092. 5. BASUDEB SARKAR, PARTNER OF M/S. B.M. ASSOCIATES. 7/44 B, NETAJI NAGAR, P.S.-NETAJI NAGAR, P.O.-REGENT ESTATE. KOLKATA-700092 6. MOHAN DS, PARTNER OF M/S. B.M. ASSOCIATES. 51, SURYA SEN PALLY, HARIDEVPUR, P.S. THAKURPUKUR. KOLKATA-700082 7. BABLI BASU. B-2, NIRUTI PARK SOCIETY, MAKUR PARA ROAD, P.O. AND P.S.- MAKARPURA. BARODA-390010 8. MITALI GHOSH. 67, ASWINI NAGAR, P.S. AND P.O.-JADAVPUR. KOLKATA-700040 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER
For the Appellant : Ms. Manjeet Chawla, Advocate For the Respondent : Mr. Amit Ghosh and Mr. Liyakat Ali, Advocate
Dated : 08 Dec 2021 ORDER
1. Heard Ms. Manjeet Chawla, Advocate, for Deba Prasad Roy and Mr. Amit Ghosh, Advocate and Mr. Liyakat Ali, Advocate, for the complainant-Respondents, in aforementioned the appeals.
2. Deba Prasad Roy filed First Appeal No. 1426 of 2017, from the order of State Consumer Disputes Redressal Commission West Bengal dated 19.04.2017 passed in Consumer Complaint No.328 of 2014, whereby the complaint was allowed and the appellant and Proforma-Respondents were directed to execute the sale deed in respect of the flat mentioned in the agreement for sale, within 30 days from the payment of balance sale consideration by the complainant to the developer. Deba Prasad Roy filed First Appeal No.2452 of 2017, from the order of State Consumer Disputes Redressal Commission West Bengal dated 06.11.2017 passed in Consumer Complaint No. 403 of 2014, whereby the complaint was allowed and the appellant and Proforma-Respondents were directed to execute the sale deed in respect of the flat mentioned in the agreement for sale, within 30 days from the payment of balance sale consideration by the complainant to the developer and also the appellant was directed to pay compensation of Rs.100000/- and cost of Rs.10000/-. Deba Prasad Roy filed First Appeal No.2460 of 2017, from the order of State Consumer Disputes Redressal Commission West Bengal dated 06.11.2017 passed in Consumer Complaint No. 387 of 2014, whereby the complaint was allowed and the appellant and Proforma-Respondents were directed to execute the sale deed in respect of the flat mentioned in the agreement for sale within 30 days from the payment of balance sale consideration by the complainants to the developer and also the appellant was directed to pay compensation of Rs.100000/- and cost of Rs.10000/-. Common questions are raised in the appeals as such these were consolidated together and are decided by a common judgment.
3. Late Laxmi Moni Roy entered into a Development Agreement with M/s. B.M. Associates and its partners on 12.11.2008 and also executed a Power of Attorney dated 19.12.2008 in favour of Basudeb Sarkar and Mohan Das for development and construction of housing project (Ground plus three storied building) on premises No. 233-A/2/1, N.S.C. Bose Road, Kolkata-700040 and a Supplementary Agreement dated 30.11.2009, in respect of share allocation among the owner i.e. Laxmi Moni Roy and the developers. On the basis of the aforesaid documents, the developers got the Layout Plan sanctioned on 16.03.2010 and started construction. On advertisement of the project, Ashutosh Chowdhury, Gopa Chowdhury and Indranil Ghosh decided to purchase a flat in the aforementioned project. Ashutosh Chowdhury entered into a registered agreement for sale dated 23.09.2010 with the owner and the developers, for purchase of one flat admeasuring 1000 sq.ft. of super built up area and a car parking space of 120 sq.ft. on ground floor of the said building, for total sale consideration of Rs.27/- lacs. Gopa Chowdhury entered into a registered agreement for sale dated 04/05.05.2011 with the owner and the developers, for purchase of one flat admeasuring 1000 sq.ft. of super built up area on the 3rd floor, north-west side of the said building, for total sale consideration of Rs.24/- lacs. Indranil Ghosh, Mitra Ghosh and Chhabi Gosh (jointly) entered into a registered agreement for sale dated 21.11.2011 with the owner and the developers, for purchase of one flat admeasuring 1000 sq.ft. of super built up area and one car parking space of 110 sq.ft. on ground floor of the said building, for total sale consideration of Rs.32.5 lacs.
4. It has been stated that payment of sale consideration was done by the complainants according to the payment scheduled as per agreement, except Rs.3 lacs, which had to be paid at the time of possession and registration of conveyance deed. The developer completed the construction and obtained "Completion Certificate" on 30.01.2013. In the meantime, Laxmi Moni Roy died on 08.05.2011 and her heirs and legal representatives, namely Deba Prasad Roy, Mitali Ghosh and Babli Basu avoided executing the sale deed. Therefore, Gopa Chowdhury filed Consumer Complaint No. 328 of 2014, Ashutosh Chowdhury filed Consumer Complaint No. 403 of 2014 and Indranil Ghosh, Mitra Ghosh and Chhabi Ghosh filed Consumer Complaint No. 387 of 2014, for direction to the developers and the heirs of Laxmi Moni Roy to execute the sale deed in respect of the flat mentioned in the agreement for sale, after taking payment of balance sale consideration from the complainants and to pay compensation and the cost of the litigation.
5. The developers filed their written reply stating that they were ready to execute sale deed and hand over possession of the flat according to the terms of the agreement. The cases were proceeded exparte against Mitali Ghosh and Babli Basu. Deba Prasad Roy (the appellant) contested the complaints and stated that his mother Laxmi Moni Roy executed a will dated 03.12.2009, in his favour, in respect of all of her properties. Laxmi Moni Roy died on 08.05.2011. He had filed Case No. 188 of 2015, for obtaining Letter of Administration of the estate of Laxmi Moni Roy, before District Delegate Alipore, which was pending. In the absence of Probate of the will dated 03.12.2009, he had no right to execute the sale deed.
6. State Commission decided Consumer Complaint No. 328 of 2014, by judgment dated 19.04.2017, Consumer Complaint No. 387 of 2014, by judgment dated 06.11.2017 and Consumer Complaint No. 403 of 2014, by judgment dated 06.11.2017. While allowing these complaints, State Commission directed the appellant and proforma respondents to execute sale deed of the flat mentioned in the agreement in favour of the complainants and as stated above. Hence these appeals have been filed.
7. The counsel for the appellant submitted that Section 213 of Indian Succession Act, 1925 provides that no right as an executor or legatee can be established in any court of justice, unless a court of competent jurisdiction has granted probate of the will under which right is claimed. She relied upon the judgment of Supreme Court in Hem Nolini Judah Vs. Isolyne Sarojbashini Bose, AIR 1962 SC 1471 and Chiranjilal Shrilal Goenka (deceased) Through LRs. Vs. Jasjit Singh & Ors., (1993) 2 SCC 507. She further submitted that as Section 213 used a non-obstante clause as such it has an overriding effect as held by Supreme Court in ICICI Bank Ltd. (since substituted by Standard Chartered Bank) Vs. Sidco Leathers Ltd. & Ors., AIR 2006 SC 2088. State Commission has illegally failed to take notice of mandatory provisions of law and direction issued by it is null and void and liable to be set aside.
8. I have considered the arguments of the counsel for the parties and examined the record. Relevant provisions of Indian Succession Act, 1925 are quoted below:
Section 211.- Character and property of executor or administrator as such- (1) The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such.
(2) When the deceased was a Hindu, Muhammadan, Buddhist [Sikh, Jaina or Parsi] or an exempted person, nothing herein contained shall vest is an executor or administrator any property of the deceased person which would otherwise have passed by survivorship to some other person.
Section 212.- Right to intestate's property.- (1) No right to any part of the property of a person who has died intestate can be established in any Court of Justice, unless letters of administration have first been granted by a Court of competent jurisdiction.
(2) This section shall not apply in the case of the intestacy of a Hindu, Muhammadan, Buddhist, Sikh, Jaina, [Indian Christian or Parsi].
Section 213. Right as executor or legatee when established- (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in [India] has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.
[(2) This section shall not apply in the case of Wills made by Muhammadans [or Indian Christians], and shall only apply-
(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in classes specified in clauses (a) and (b) of section 57; and
(ii) in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962),where such Wills are made within the local limits of the [ordinary original civil jurisdiction] of the High Courts at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immoveable property situated within those limits.]
Section 227.- Effect of probate.- Probate of a Will when granted establishes the Will from the death of the testator, and renders valid all intermediate acts of the executor as such.
9. Supreme Court in Commissioner Vs. Mohan Krishan Abrol, (2004) 7 SCC 505, held that bare reading of Section 211 shows that the property vest in the executor by virtue of the will and not by virtue of probate. In Crystal Developers Vs. Asha Lata Ghosh, (2005) 9 SCC 375, held that Section 211, 212 and 213 bring out a dichotomy between an executor and an administrator. They indicate that the property shall vest in the executor by virtue of the will whereas the property will vest in the administrator by virtue of grant of letters of administration by the court. These sections indicate that an executor is the creature of the will whereas an administrator derives all his rights from grant of letters of administration by the court. Section 227 deals with effect of probate. It lays down that probate of a will when granted establishes the will from the date of death the testator and renders valid all intermediate acts of the executor. In F.G.P. Ltd. Vs. Saleh Hooseini Doctor, (2009) 10 SCC 223, held that even if the will is not probated that does not prevent the vesting of the property of the deceased on the executor/administrator and consequently any right of action to represent the estate of the executor can be initiated even before grant of the probate.
10. In view of the aforementioned provisions of law as well as judgment of Supreme Court, there is no legal impediment for the appellant or he is not unable under the law to execute the sale deeds as directed by the State Commission, even before granting probate. The orders of State Commission do not suffer from any illegality.
O R D E R
In view of aforementioned discussions the aforementioned appeals have no merit and are dismissed. The appellant shall give his consent before State Commission for compliance of the orders of State Commission within two weeks from the date of judgment and comply with it as and when, he is directed to do it.
......................J RAM SURAT RAM MAURYA PRESIDING MEMBER