State Consumer Disputes Redressal Commission
Asit Baran Chandra vs Chinta Haran Jana on 6 July, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/978/2014 (Arisen out of Order Dated 08/08/2014 in Case No. Complaint Case No. CC/328/2013 of District Howrah) 1. Asit Baran Chandra S/o Late Jaladhar Chandra, 155/2, Sri Ram Dhang Road, P.S. Malipanchghora, Dist. Howrah, Pin - 711 106. ...........Appellant(s) Versus 1. Chinta Haran Jana S/o Late Dhirendra Nath Jana, 4/3, Pitambar Roy Lane, P.S. - Malipanchghora, Dist. Howrah - 711 106. 2. Birendra Kumar Gupta S/o Late Munna Lal Gupta, 27/1, Rose Mary Lane, P.S. Golabari, Dist. Howrah, Pin - 711 106. 3. Shamim Ahmed S/o Samsul Huda, 3, Alam Mistry Lane, P.S. Golabari, Dist. Howrah, Pin - 711 106. 4. M/s. Divyaa Construction 48, Saila Kumar Mukherjee Road, P.S. Golabari, Dist. Howrah, Pin - 711 106. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE ISHAN CHANDRA DAS PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER For the Appellant: Mr. Prasanta Banerjee Mr. Subir Ranjan Ghosh , Advocate For the Respondent: Mr. Jaganath Patra, Advocate Dated : 06 Jul 2017 Final Order / Judgement
HON'BLE JUSTICE ISHAN CHANDRA DAS, PRESIDENT This appeal has been directed against the judgment and order dated 08/08/2014 passed by Ld. District Consumer Disputes Redressal Forum, Howrah in complaint case no. HDF 328 of 2013 wherein Ld. Forum concerned while disposing of the complaint case allowed the same on contest against the OP no. 1 and ex parte against the rest but without costs. The OP no. 1 was directed to execute and register the deed of conveyance with regard to the disputed shop room within 30 days from the date of the order. He also directed the OP no. 1 to pay a litigation cost of Rs. 5,000/- (Rupees five thousand) only to the complainant within one month for the date of the order.
Being aggrieved by and dissatisfied with the said order the OP no. 1 of CC/HDF/328 of 2013 preferred this appeal.
The fact of the case in brief was that the complainant/respondent herein (hereinafter referred to as respondent) was a monthly tenant under the appellant (the OP no. 1 of the complaint case and hereinafter referred to as appellant) in respect of the room mentioned in the schedule of the petition of complaint measuring 170 sq. ft. in the ground floor of the premises no. 36, Sri Arabindo Road, P.S. Malipanchghora, Howrah. The OPs no. 2 & 3/other respondents being partners of the OPs no. 4/firm were carrying on business of construction of multistoried buildings as developers/promoters and they entered into an agreement with the respondent no. 1 herein for construction of multistoried building in terms of the agreement and it was settled between the parties that the appellant no. 1 would get a shop room in the said building as per description given in the schedule of the petition of complaint for a consideration of Rs. 60,000/- (Rupees sixty thousand only) and paid a sum of Rs. 10,000/- (Rupees ten thousand only) towards advance and undertook to execute and register the necessary sale deed in favour of the respondent no. 1 on receipt of balance consideration of Rs. 50,000/- (Rupees fifty thousand only). The respondent no. 1 requested the OPs to execute and register the necessary sale deed in his favour as per agreement between themselves but repeated requests on the part of the respondent no. 1 did not yield any fruitful result and that prompted him to take recourse of the District Forum concerned for getting reliefs in terms of his prayer given in the said petition of complaint.
The appellant being the OP no. 1 of the complaint case filed a written version and contended that the agreement was a product of threat and he was forced to sign the said agreement. Denying the cause of action, the appellant (OP no. 1) disclosed several litigations between themselves and the respondent no. 1 herein and he ultimately prayed for dismissal of the complaint case.
Ld. Trial Court upon consideration of the materials on record found that the complainant of HDF 328 of 2013 is a deserving party for getting reliefs in terms of the petition of complaint.
The materials on record do not deny the relationship between the contesting parties herein and it is admitted that the respondent no. 1 was a tenant under the appellant and others in respect to the demised premises at one point of time and there were civil and criminal litigations in between the parties and ultimately it was agreed upon between them that the parties will come to peaceful solution on withdrawal of each of the litigations pending between themselves in the court of law and as a solution the present respondent no. 1 was allowed to purchase a shop room measuring 170 sq. ft. in the ground floor of the building, referred to in the schedule of the petition of complaint. The money receipt showing payment a sum of Rs. 10,000/- (Rupees ten thousand only) to the original OPs of HDF 328 of 2013 who undertook to execute and register the sale deed in favour of the respondent no. 1 on payment of balance consideration. The parties also agreed to execute the said deed on withdrawal of all civil and criminal cases, pending between themselves. Ld. Counsel for the appellant in course of argument submitted with reference to the averments of the petition of complaint that the complainant herein wanted to purchase a shop room which is for commercial and his claim cannot be a subject matter, to be decided by a consumer court. He also submitted that Ld. Trial Forum was not justified in passing a decree in favour of the complainant since the complainant cannot be designated as "consumer" as defined in section 2 (d) of the Consumer Protection Act, 1986. To counter his argument, Ld. Counsel for the respondent no. 1 drew our attention to the State Commission of Chandigarh, in Pawandeep Singh Bawa & Another - vs - Emaar MGF Land Limited & Another reported in 1 (2015) CPJ 128 (UT Chd.) and submitted that the complainant being the purchaser of a shop room for his livelihood he is termed as consumer and his interest can be protected by the consumer forum/commission taking the recourse of the provisions of the Consumer Protection Act, 1986. He also submitted that the complainant/i.e. the respondent no. 1 had continuous cause of action since his repeated requests did not yield any fruitful result and the repetition of such requests can be termed as continuous of action. Frankly speaking, the documents which is at page 68 of the file clearly revealed that the appellant herein and others took a sum of Rs. 10,000/- (Rupees ten thousand) only from the respondent no. 1 as advance and they undertook to execute and register the sale deed in respect of the shop room as per schedule of the petition of complaint. The appellant and other respondents being the OPs of the CC 328 of 2013 undertook to execute the sale deed in favour of the respondent no. 1 but in their written version they pleaded that such agreement was the outcome of a threat but no such document or evidence from the appellant and others were produced either before the Trial Court or before this Commission for establishing its veracity and in the absence of such documents it can safely be held that such a ground was taken just to deny the deserving party from getting his relief in terms of agreement between them. Ld. Trial Court in the impugned judgment held that the complainant of the CC 328 of 2013 deserved reliefs in terms of the application but on a careful consideration of the facts and circumstances of the case we are unable to take a different view, rather we are of the view that Ld. Trial Forum did not commit any mistake in passing the decree in favour of the respondent no. 1 herein. It is interesting to note that the party agreed between themselves that all the civil and criminal cases pending before such courts shall be withdrawn for fruitful solution of the problems for which this litigation saw the light of the day and we hope that the parties of this proceeding shall keep their words which they expressed at one point of time in the form of the agreement (which is at page 57 of the agreement). As such we firmly conclude that Ld. Trial Forum did not commit any mistake in passing a decree in favour of the complainant and accordingly we uphold the same with a modification that the entire process of withdrawal of cases from different courts, execution of the deed in favour of the respondent no. 1 on payment of balance consideration of Rs. 50,000/- (Rupees fifty thousand only) shall be completed within a period of two months from the date of the order. The other part of the direction remains unchanged. We hereby affirm the judgment and order of the Ld. Trial Court with the modification as indicated above. Parties do bear their respective costs of appeal. [HON'BLE MR. JUSTICE ISHAN CHANDRA DAS] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER