State Consumer Disputes Redressal Commission
Smt.Madhuri Sur Roy vs Smt. Suparna Chowdhury on 13 April, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/344/2015 (Arisen out of Order Dated 26/02/2015 in Case No. CC/583/2014 of District South 24 Parganas) 1. Smt.Madhuri Sur Roy W/o Late Santimoy Sur Roy, through her constituted attorney, Amal Sur Roy, Champdani, Natunpara, 38 B.M. 1st Bye Lane, P.O. Baidyabati, P.S. Bhadreswar, Dist. Hooghly, Pin-712222. ...........Appellant(s) Versus 1. Smt. Suparna Chowdhury W/o Sri Somenath Chowdhury, Prop., M/s. Suparna Chowdhury, 23, M.B. Sarani(Moore Avenue), P.S. Regent Park, Kolkata -700 040. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Mr. Sankar Mukhopadhyay , Advocate For the Respondent: Ms. Mahua Chakraborty, Ms.Sumita Roy Chowdhury., Advocate Dated : 13 Apr 2017 Final Order / Judgement
Date of Filing - 20.03.2015 Date of Hearing - 03.04.2017 Challenge in this Appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') to assail the Order No.07 dated 26.02.2015 passed by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Alipore (for short, Ld. District Forum) in Consumer Complaint no. 583/2014 thereby the application filed on behalf of the opposite party challenging the maintainability of the proceeding was allowed and consequently the complaint initiated by the appellant herein under Section 12 of the Act was dismissed.
The Appellant herein being Complainant lodged the complaint stating that she is one of the co-sharers in respect of undivided 1/5th share in respect of Premises No.45/R, Moore Avenue (now Manik Bandhopadhyay Sarani), P.S. - Regent Park, Kolkata - 700040. On 23.07.2001 the complainant and other co-sharers entered into an agreement with the OP/respondent for development of the property and accordingly on 12.09.2001 they have executed one Power of Attorney to that effect. The complainant has alleged that in terms of the agreement, the OP undertook to hand over 360 sq. ft. flat in the said premises or value thereof. On the allegation of non-compliance of the same, the appellant approached the Ld. District Forum with prayer for direction upon the OP to hand over one self-contained flat of 360 sq. ft. the current value thereof Rs.18,10,000/-, Rs.1,00,000/- as compensation for mental agony and harassment and Rs.25,000/- as litigation cost.
The opposite party after entered appearance has filed an application challenging the maintainability of the proceeding and by the impugned order, the Ld. District Forum dismissed the complaint being not maintainable. Challenging the said order, the instant appeal has been preferred.
Mr. Shankar Mukhopadyay, Ld. Advocate for the appellant has submitted that the Ld. District Forum without considering the fact that the respondent has made a declaration on 31.12.2003 to the appellant to hand over a flat measuring about 300 sq. ft. or the value thereof dismissed the complaint principally on the ground that a criminal case between the parties is pending.
Ms. Mahua Chakraborty, Ld. Advocate for the respondent, on the other hand has submitted that the respondent has entered into an agreement with five joint owners and as per terms of agreement dated 23.07.2001, the developer was under obligation to hand over three nos. of flats measuring 2000 sq. ft. covered area and Rs.3,00,000/-. The respondent has handed over the sum of Rs.3,00,000/- and the said three nos. of flats towards full and final settlement and the instant complaint has been filed by the appellant with malafide intention. She has also submitted that the complainant herself did not come before the Ld. District Forum or before this Commission inspite of specific direction to substantiate whether the complainant/appellant has executed any Power of Attorney in favour of Sri Amal Sur Ray and whether Amal Sur Ray has any relation with Tushal Kumar Sur Ray.
I have considered the submission advanced by the Ld. Advocates appearing for the parties. Admittedly, on 23.07.2001 the respondent being developer has entered into an agreement with five land owners including complainant Smt. Madhuri Sur Ray for raising construction over Premises No.45R, Moore Avenue, P.S.- Regent Park, Kolkata - 700040. As per terms of the agreement, the developer was under obligation to hand over three self-contained complete flat, two measuring 700 sq. ft. covered areas each and another measuring 600 sq. ft. aggregating 2000 sq. ft. covered area and also to pay landowners a sum of Rs.3,00,000/-. In the petition of complaint, the appellant did not deny the factum of handing over 2000 sq. ft. covered area and also Rs.3,00,000/-. But it is the contention of the complainant that the respondent has made a declaration on 31.10.2013 to assure her to purchase 360 sq. ft. covered area of the said premises which has been allotted to her at a consideration of Rs.4,10,000/-.
The facts and circumstances indicate that the dispute raised by the appellant cannot be adjudicated without impleading all the co-sharers because it is specifically asserted by the respondent/developer that in terms of the Deed of Agreement dated 23.07.2001, she has handed over all the three flats and Rs.3,00,000/- to the land owners. In the petition of complaint also, the appellant could not aver that the developer did not hand over the allocation of the land owners. The Ld. District Forum has observed - "If the complainant once to sue for her own claim, then the same ought to have been filed against the co-owners and Tushar Kr. Sur Roy who is definitely family man of Madhuri Sur Roy.
Apart from that, in the development Agreement there is no whisper to give any service to the complainant. It is interesting to point out that the complainant has come before this Forum long after the possession was handed over and we find that once signature in the name of Madhuri Sur Roy is appearing in the Development Agreement at Page-2 Schedule-C which was not at all challenged".
The Ld. District Forum has rightly observed that without impleading all the co-sharers, the dispute cannot be resolved. Moreover, in the petition of complaint, no averment has been made as to when the developer handed over the possession to the land owner and paid the amount of Rs.3,00,000/- as stipulated in the Deed of Agreement dated 23.07.2001. In that perspective, the Ld. District Forum was quite justified in dismissing the complaint on account of its technical defect. I do not find any reason to differ with the view of the Ld. District Forum on that count.
However, the pendency of the complaint under Section 138 of Negotiable Instrument Act cannot be a ground for stay of the consumer complaint. In 2014 (4) CPR 681 (NC) (Indrani Chatterjee & Anr. - vs. - AMRI Hospitals) the Hon'ble National Commission referring the decision of the Hon'ble Apex Court reported in (2013) 7 SCC 622 (Guru Granth Saheb Sthan Meerghat, Venaras - vs. - Ved Prakash & Ors.) has observed that having regard to the object and intent of the Act, summary trial of consumer complaint has to be given precedence over other cases, be it civil or criminal in nature. Therefore, pendency of the criminal case cannot be a reason to dismiss the complaint. But the fact remains unless all the co-sharers are impleaded as parties and further the complainant/appellant does not disclose the cause of action i.e. the date of handing over possession or making payment in order to compute the period of limitation, the complaint is not maintainable.
In view of the above, the appeal is dismissed on contest. There will be no order as to costs.
The Order No.07 dated 26.02.2015 passed by the Ld. District Forum in CC/583/2014 is hereby affirmed.
However, this does not debar the appellant to lodge a complaint afresh after arraying all the co-sharers as parties and mentioning the date of handing over possession in order to compute the period of limitation and in the process, the appellant/complainant may seek assistance of the decision of Hon'ble Supreme Court reported in (1995) 3 SCC 583 ( Laxmi Engineering Works - vs.- P.S.G. Industrial Institute) to overcome the hurdle of limitation as embodied in Section 14(1) of Indian Limitation Act.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Alipore (now at Baruipur) for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER