State Consumer Disputes Redressal Commission
Dr. Rabiul Hasnat vs Mr. Rezuar Rahaman on 8 October, 2015
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/21/2014 1. Dr. Rabiul Hasnat S/o Abdul Hamid, Khagrazole, P.S. Chinsura, Dist. Hooghly, Pin - 712 101. 2. Firoja Khatun W/o Rabiul Hasnat, Khagrazole, P.S. Chinsura, Dist. Hooghly, Pin - 712 101. ...........Complainant(s) Versus 1. Mr. Rezuar Rahaman S/o Late Luthfar Rahman, 26, Phool Bagan Road, present name Sir Syed Ahmed Road, Kolkata-700 014, P.S. Beniapukur. 2. Mrs. Gowher Rahman W/o Mr. Rezaur Rahman, 2/H/6, Hatibagan Road, Kolkata - 700 014 ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Complainant: Mr. Barun Prasad, Mr. Subrata Mondal, Advocate For the Opp. Party: Ms. Sadya Hassan, Advocate Ms. Sadya Hassan, Advocate ORDER Date of Hearing 28th Day of September, 2015 Date of Judgment Thursday, 8th Day of Otober, 2015 JUDGMENT
The instant Consumer Complaint u/s. 17 of the Consumer Protection Act, 1986 (hereinafter referred to as the 'Act') is at the instance of the lease hold purchaser/lessee for deficiency of service of the Opposite Parties/Lessor.
In a nutshell, the complaint case is that the Opposite Parties are sub-lessors of premises No.26, Phool Bagan Road, presently known as Sir Syed Ahamed Road, P.S. Beniapukur, Kolkata-700014. The property is a Devottar Estate and Shebaits, viz. Sri Madan Mohan Mallik and Sri Rabin Pyne executed a lease in favour of the Opposite Parties for a period of 99 years. In terms of the said Deed of lease, the Opposite Parties/Developer of the property by constructing a building thereon intend to let out or demise lease hold right in respect of apartment being 1015 sq. ft. of super built area on the 3rd Floor of the said building in the said premises at a consideration price of Rs.27,37,800/-. On 05.07.2010 an agreement was executed for residuary period of lease i.e. upto April, 2093 and at the time of the execution of agreement the Complainant paid an amount of Rs.2,00,000/- as an earnest money. Subsequently, on 03.03.2010 an amount of Rs.21,00,000/- as loan was sanctioned by State Bank of India, Middleton Street, Kolkata in favour of the Complainants and it was directly paid to the Opposite Parties. Out of the said amount the Opposite Party returned Rs.1,50,000/- to them as per mutual understanding, However, the Opposite Party till date did not deliver the possession of the flat and did not express their willingness to register the same. Hence, the instant consumer complaint with the following prayers, viz. - (a) directing the Opposite Parties to deliver the possession of the flat as mentioned in Schedule to the petition of complaint; (b) direction upon the Opposite Parties for execution and registration of the flat; (c) for compensation of Rs.5,00,000/- for harassment and mental agony etc. (d) litigation costs of Rs.20,000/- etc. Opposite Parties did not file any written version towards the said petition of complaint. An evidence on affidavit filed on behalf of the Complainant. No questionnaire or evidence has been adduced on behalf of the Opposite Parties. However, the Opposite Party has taken part at the time of hearing argument of the case.
Considering the materials on record we think for the purpose of proper appreciation of the instant consumer dispute the following points are required to be adjudicated -
(i) Is the complaint maintainable in its present form? (ii) Is the Consumer Complaint barred by limitation? (iii) Is the relationship of consumer and service provider exist between the parties?
(iv) Was there any deficiency of service on the part of the Opposite Parties?
(v) Are the Complainants entitled to get the relief as prayed for? D E C I S I O N Point No.1
The maintainability of the case has been seriously challenged by the Ld. Advocate for the Opposite Parties. On a plain reading of the petition of complaint it reveals that the premises where the building has been constructed and the Complainants intended to purchase a flat is Devottar Estate of Siddhidata Ganesh, Sri Sri Radha Govinda Jew, Sri Sri Jagannath Jew and Maa Mangalchandi. It has been stated that one Sri Madan Mohan Mallik and Sri Robin Pyne being Shebaits to the said deities as well as trustee of the said Devottar Estate by executed a registered Deed of lease before ADSR at Sealdah in favour of Complainants for a period of 99 years. The said Deed of 1994 has not been placed before this Commission. In the agreement for assignment of lease dated 05.07.2-13 executed by and between the parties it reveals that said Sri Madan Mohan Mallik and Sri Robin Pyne upon the prior permission of Hon'ble High Court, Calcutta on and about 06.05.1994 by execution of registered Deed of lease out of the premises No.26, Phool Bagan Road, P.S. Beniapukur, Kolkata-700014 in favour of the Opposite Parties to this case. Since the property in question is a Devottar Property question of transfer in any form does not arise without obtaining the prior permission of the District Judge of the concerned district in accordance with the provisions of Section 34 of Indian Trust Act, 1882. The property in question is lying and situated under Beniapukur P.S. which falls under the jurisdiction of district South 24 Parganas and as such permission in this regard has to be obtained from the court of Ld. District Judge, South 24 Parganas at Alipore. Since the property does not fall within the Ordinary Original Civil Jurisdiction of Hon'ble High Court at Calcutta it is quite difficult to understand how such the permission could be obtained from the Hon'ble High Court, Calcutta. In all fairness either of the parties had to produce the said permission. Moreover, it is not clear whether besides trustees, Sri Madan Mohan Mallik and Sri Robin Pyne there was any other Shebaits in respect of the property. In any case, the alleged transfer by which the property has been leased out by Sri Madan Mohan Mallik and Sri Robin Pyne and subsequently on the basis of the said document when the Deed of agreement has been executed by and between the parties on 05.07.2010 with the stipulation to make payment of the entire consideration amount by December, 2010 appears to us baseless and against the object of the settlement of Deed of Trust by the Executor.
Therefore, when the property in question is a Trust property, permission of the District Judge is required u/s. 34 of Indian Trust Act, 1882 and further, the lease Deed executed by Sri Madan Mohan Mallik and Sri Robin Pyne are not placed before the Bench, we are constrained to hold that the Consumer Complaint is not maintainable.
Therefore, Point No.1 is decided in the negative and against the Complainants.
Point No.2 Ld. Advocate for the Opposite Parties has also raised the question on the point of limitation. He has drawn out attention to paragraph 13 of the petition of complaint and stated that the cause of action arose on 05.07.2010 being the date of execution of agreement and subsequently, on 03.09.2010 when the bank disbursed the loan amount of Rs.21,00,000/- to the Opposite Parties and since the complaint has been filed on 29.01.2014 after more than 2(two) years from the date of cause of action in accordance with the Section 24A of the Act the instant complaint is time barred.
Ld. Advocate for the Opposite Parties, on the other hand, has submitted that in spite of receipt of hefty amount from the Complainant the Opposite Parties did not execute the Deed after receipt of consideration amount and as such, a legal notice was issued by his clients to the Opposite Parties on 05.07.2013 and in reply to same Ld. Advocate for the Opposite Parties wrote a letter on 02.09.2013 stated some reasons for non-execution of same. Therefore, when the Opposite Parties have replied on 02.09.2013 relating to the agreement in question, it cannot be said that the case in any way barred under the provision of the Section 24A of the Act. Therefore, this point is decided in negative and in favour of the Complainants.
Point Nos.3 to 5All the 3(three) points are taken up together for the sake of convenience and to skip reiteration.
From the materials on record it appears that on 05.07.2010 an agreement was arrived at in between the parties to this case in respect of sub-lease of one flat measuring about 1015 sq. ft. located on the southern side of 3rd Floor at premises No.26, Phool Bagan Road, now Sir Syed Ahamed Road, P.S. Beniapukur, Kolkata-700014 at consideration amount of Rs.27,37,800/-. The memo of consideration makes it clear that on the date of execution of the Deed an amount of Rs.2,00,000/- was paid by cash. Subsequently, the State Bank of India sanctioned a House Building Loan of Rs.21,00,000/- in favour of the Complainant and the same was disbursed in favour of the Opposite Parties on 03.09.2010. However, the Complainant have candidly stated that out of the said amount Opposite Parties returned back Rs.1,50,000/- to the Complainant as per mutual understanding. It means and indicates that a sum of Rs.5,87,000/- was due and payable by the Complainants in favour of the Opposite Parties by December, 2010 in terms of the agreement. However, the agreement appears to be baseless having no foundation of it in view of the fact that property in question is a trust property. The letters issued by the Opposite Parties through their Ld. Advocate on 02.09.2013 has categorized the agreement as fabricated and false. The liability of such fabrication or falsehood lies with the Opposite Parties. In fact, the Opposite Parties have practiced fraud upon the Complainant for which they allured to purchase the flat in question finding no other accommodation at Kolkata. Therefore, the liability in this regard would be attributed upon the Opposite Parties. Since there is hardly any scope or possibility to complete the transaction, the Complainants are entitled to amount paid by them in favour of the Opposite Parties along with interest thereon and compensation for harassment and mental agony, financial loss and damages etc. and also litigation costs.
According to us refund of Rs.21,50,000/- together with interest thereon at the rate of 12 per cent per annum from 03.09.2010, the compensation of Rs.1,00,000/- for harassment and mental agony etc. and litigation costs of Rs.10,000/- would meet the ends of justice.
All the above 3(three) points are decided and disposed of accordingly.
For the reasons aforesaid, the instant case is disposed of on contest with a direction upon the Opposite Parties to refund of Rs.21,50,000/- together with interest thereon at the rate of 12 per cent per annum on and from 03.09.2010, compensation of Rs.1,00,000/- for harassment and mental agony etc. with litigation costs of Rs.10,000/- in favour of the Complainant within 1(One) month from date, failing which the amount shall carry an interest at the rate of 18 per cent per annum till its realization. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER