State Consumer Disputes Redressal Commission
Mr. Nepal Chandra Chatterjee & Others vs Ms. Jayanti Bose & Others on 12 July, 2012
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. : FA/320/2011 DATE OF FILING : 14.07.2011 DATE OF FINAL ORDER: 12.07.2012 APPELLANTS 1. Mr. Nepal Chandra Chatterjee 19, Bhaduripara Lane, Chatra, Serampore, Hooghly. 2, Mr. Satyajit Chatterjee 19, Bhaduripara Lane, Chatra, Serampore, Hooghly. 3. Mr. Biswajit Chatterjee 19, Bhaduripara Lane, Chatra, Serampore, Hooghly. RESPONDENTS 1. Ms. Jayanti Bose W/o Mr. Sandip Bose Of Flat No. 304, Shivam Apartment 2nd Floor, 19, Bhaduripara Lane, Serampore, Hooghly. PROFORMA RESPONDENTS 2. G.M.Housing Pvt. Ltd. having its registered office at 33, Roy M.C.Lahiri Street Post Office Chatra Police Station Serampore Dist. Hooghly Represented by its Director Mr. Biswajit Lahiri S/o Mr. Samir Kumar Lahiri 33, M.C.Lahiri Bahadur Street Chatra, Serampore, Hooghly. 3. Mr. Snehasis Chakraborty Roy Choudhury S/o Mr. Amitava Chakraborty Roy Choudhury 17A, Bhaduripara Lane, Post Office Chatra Dist. Hooghly. 4. Mr. Somnath Pal S/o Mr. Ramendra Nath Pal 15A/1, Bhaduripra Lane, Post Office-Chatra Dist. Hooghly. 5. Mr. Amit Maity S/o Late Khagendra Nath Maity 31, Bhaduripara Lane, Post Office Chatra Serampore, Hooghly. 6. Ms. Mamta Kar W/o Mr. Achin Kar 8/1M,. Champatala Lane, Post Office-Chatra Hooghly. 7. Mr. Gungaram Ghosh S/o Late Panchanan Ghosh 8, Bhaduripara Lane, Chatra, Serampore, Hooghly. 8. Mr. Asis Chakraborty Roy Chowdhury S/o Mr. Amitava Chakraborty Roy Chowdhury 17A, Bhaduripara Lane, Chatra, Serampore, Hooghly. BEFORE : HONBLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT MEMBER : MR. S.COARI MEMBER : MRS. MRIDULA ROY FOR THE APPELLANT : Mr. Kaji Sajjad Alam, Ld. Advocate FOR THE O.P.S.: Mr. Prabir Basu, Ld. Advocate Mr. S.N.Sardar, Ld. Advocate Mr. Kalipada Pramanik, Ld. Advocate : O R D E R :
MR. S.COARI, LD. MEMBER The present Appeal has been directed against the judgement and order no. 35 dt. 9.6.11 passed by Hooghly District Consumer Disputes Redressal Forum at Chinsurah in C.D.F.Case No. 120 of 2007 wherein the Ld. District Forum allowed the petition of complaint on contest thereby directing the Ops to execute and register the sale deed in respect of the flat in Kha schedule within one month from the date of order. The Ops are also directed to pay jointly or severally a sum of Rs. 10,000/- to the complainant towards compensation and Rs. 2,000/- as litigation cost within one month from the date of the order.
The case of the Complainant/Respondent before the Ld. District Forum, in brief, was that in pursuance to an agreement dt. 4.12.01 the OP Nos. 8 to 10 (Appellants) entered into an agreement with the OP Nos. 1 to 7 thereby entrusting the OP Nos. 1 to 7 to construct different flats in a four-storied building and in the process, the OP Nos. 8 to 10 executed power of attorney in favour of OP Nos. 1 to 7 for the purpose of selling out flats to different purchasers. According to the complainant, after construction of flats the OP Nos. 1 to 7 agreed to sell a flat mentioned in Kha schedule of the petition of complaint in favour of the complainant for valuable consideration. According to the complainant, after payment of entire consideration money the Ops are not executing and registering the deed of conveyance in respect of the flat in question in favour of the complainant and hence, the petition of complaint for proper redressal.
The OP Nos. 2,4,5 & 7 and OP Nos. 8 to 10 contested the case by filing separate written version thereby denying all the material allegations mentioned in the petition of complaint. According to the OP Nos. 2,4,5 & 7, as material disputes cropped up in between the OP Nos. 1 to 7 and the OP Nos. 8 to 10, over which a title suit being No. 47 of 2007 has been instituted and pending before the Ld. 2nd Court of Civil Judge, Jr. Division at Serampur and as an injunction order is still pending the OP Nos. 2,4,5 & 7 are not in a position to execute and register the deed of conveyance in favour of the complainant. According to the OP Nos. 8 to 10, the complainant having not paid any consideration money to the Ops, the OP Nos. 8 to 10 are under no obligation to execute and register the deed of conveyance in favour of the complainant.
According to the Ops, the complainant has already taken possession of the flat in question. As OP Nos. 1 to 7 have not executed and registered the deed of conveyance in favour of the complainant the complainant has instituted the present consumer complaint for which there is no deficiency at the instance of OP Nos. 8 to 10 and the consumer complaint is liable to be dismissed against OP Nos. 8 to 10.
Ld. District Forum while disposing of the petition of complaint has observed that when it is an admitted position that the complainant has already paid the entire consideration money to the Ops and merely as because a dispute is pending in between the OP Nos. 1 to 7 and the OP Nos. 8 to 10, the same will not ipso facto debar the complainant from instituting and getting relief in the consumer complaint of the present nature and accordingly allowed the petition of complaint in favour of the complainant as mentioned above.
The only moot question that revolves round the present Appeal is as to whether the Ld. District Forum was justified enough in disposing of the petition of complaint in the manner as mentioned above.
Case laws referred on behalf of the Appellants :-
1.
AIR 2009 SUPREME COURT 1489
2. 1999 (2) CLJ Page-259
3. 1999 (2) CLJ Page-264
4. 2001 (3) CPR 177 (NC)
5. 2001 (3) CPR 183 (NC)
6. AIR 1971 Supreme Court 2018 Case laws referred on behalf of the Respondent/Complainant
1. IV (2007) CPJ 176 (NC)
2. (2008) 3 WBLR (CPSC) 174
3. IV (2007) CPJ 290 DECISION WITH REASONS At the time of hearing it has been submitted on behalf of the Appellants that Ld. District Forum has utterly failed to appreciate the cases of respective parties and as such, has arrived at a wrong and improper decision which is not sustainable under the law. According to the Ld. Advocate for the Appellants, when in this case admittedly the agreement in question was not a registered one and that the same was not adequately stamped, Ld. District Forum ought to have dismissed the petition of complaint on the basis of the insufficiently stamped registered agreement, which is not enforceable under the law, and no relief ought to have been given to the complainant/Respondent.
According to the Ld. Advocate, Ld. District Forum having ignored this aspect of the case has committed gross error in judgement and as such, has arrived at a wrong and improper decision, which is liable to be set aside. While elaborating on this point, Ld. Advocate for the Appellant has further submitted before us that although a civil litigation is pending in between the OP Nos. 1 to 7 and the present Appellants and an injunction order is still pending in connection with the civil proceeding, Ld. District Forum ought to have restrained itself from passing any order. While concluding his submissions Ld. Advocate for the Appellants has submitted before us that the impugned judgement being based on insufficient documents the same is liable to be set aside.
We have duly considered the submissions so put forward on behalf of the Appellants and have also gone through the materials on record including the impugned judgement and find that in this case the Complainant/ Respondent has put forward a case to the effect that in pursuance to an agreement the OP Nos. 8 to 10 (Appellants) entered into an agreement with OP Nos. 1 to 7 to promote and develop a construction of several flats, of which OP Nos. 1 to 7 were given selling rights by means of executing a power of attorney. According to the complainant, the complainant purchased a flat for valuable consideration from OP Nos. 1 to 7, but in spite of paying entire consideration money the OP Nos. 1 to 7 did not execute and register a sale deed in favour of the complainant and hence, the petition of complaint. The OP Nos.
2,4,5 & 7 contested the case by filing a written version contending inter alia that as a similar litigation is pending in between the Ops and the Appellants, in which an injunction order was passed, the Ops are not in a position to execute and register the deed of conveyance in favour of the complainant as prayed for and as such, the petition of complaint was liable to be dismissed as against the Ops. The Appellants also contested the case by filing a separate written version contending inter alia that the complainant had been given possession by the Construction Company, but as the Ops are not executing and registering the deed of conveyance in favour of the complainant, the complainant instituted a case on ground of deficiency in service, for which the Appellants are not responsible and that the complainant was not entitled to get any relief as against the Appellants/Ops.
We have carefully gone through the impugned judgement and find that the Ld. District Forum has really appreciated the cases of respective parties and in arriving at a just and proper decision has left no stone unturned. When admittedly the complainant has paid the entire consideration money in respect of the flat in question, the Ops are legally bound to execute and register the deed of conveyance in favour of the complainant and by passing the impugned judgement the Ld. District Forum has committed no wrong.
Much has been agitated before us on behalf of the Appellants to the effect that the agreement in question being not registered, neither the same is adequately stamped, the complainant is not entitled to get reliefs as prayed for. But we are not able to accept such proposition inasmuch as admittedly these were not raised by the Appellant/OP at the very initial stage, i.e. in the written version. Unless the complainant is given an opportunity to meet up those points, we think that the Appellants are precluded from raising those points at this appeal stage and more so, when in a dispute of present nature registration of the agreement in question is not mandatory and the Appellants having failed to specifically state as regards the amount of stamp duty payable, we also think that the points so raised on behalf of the Appellants are not tenable. In this connection, we have also considered the decision relied upon by the Appellants i.e. the decision reported in AIR 2009 Supreme Court 1489 and on perusal of the said decision we find that the decision deals with an unregistered deed of sale, but here in the instant appeal an unregistered agreement is being dealt with. If that be the position, the principles laid down in the abovementioned decision are not applicable to the instant case. We have duly considered the other decisions relied upon by the Appellants.
But unfortunately the facts and circumstances of those decisions are not similar to the instant one and as such, the principles laid down in those decisions are not applicable to the present Appeal. We find much substance in the submissions so put forward by the Ld. Advocate for the Respondent/Complainant, according to whom, a civil litigation is pending amongst the Ops and as such, the pendency of the said civil litigation cannot create any impediment for the complainant in getting a relief in the consumer complaint.
Having considered the present Appeal in the light of above discussion we find no merit in the present Appeal, which, in our opinion, should be dismissed. In the result, the Appeal fails.
Hence, it is ORDERED that the Appeal stands dismissed on contest but without any order as to cost.
The impugned judgement stands confirmed.
MEMBER MEMBER PRESIDENT