State Consumer Disputes Redressal Commission
Sri Nirmal Kumar Das vs Smt. Trishna Rana on 29 April, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/1324/2013 (Arisen out of Order Dated 24/09/2013 in Case No. Complaint Case No. CC/141/2012 of District Kolkata-II) 1. Sri Nirmal Kumar Das S/o Late Nilkanta Das, 7E/1H, Surah Cross Lane, Kolkata - 700 010. 2. Sri Amar Kumar Das S/o Late Nilkanta Das, 7E/1H, Surah Cross Lane, Kolkata - 700 010. ...........Appellant(s) Versus 1. Smt. Trishna Rana W/o Sumit Rana, 32, Hara Mohan Ghosh Lane, P.S. Beliaghata, Kolkata - 10 & also at 7E/1H, Surah Cross Lane, Kolkata - 700 010. 2. Sri Suryanshu Rana S/o Sumit Kumar Rana, 32, Hara Mohan Ghosh Lane, P.S. Beliaghata, Kolkata-10 & also at 7E/1H, Surah Cross Lane, Kolkata-700 010. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE KALIDAS MUKHERJEE PRESIDENT HON'BLE MRS. MRIDULA ROY MEMBER HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER For the Appellant: Mr. H. Brahmachari, Advocate For the Respondent: Mr. Pintu Das, Advocate Mr. Pintu Das, Advocate ORDER 29.04.2015 MR. TARAPADA GANGOPADHYAY, HON'BLE MEMBER
The instant Appeal is directed against the judgment and order dated 24.9.2013 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II, in C.C.No. 141 of 2012, directing the OPs/Appellants to execute and register the Deed of Conveyance in respect of the flat in question within 45 days from the date of order after receiving from the Complainants/Respondents Rs. 10,000/- being the balance consideration due, failing which Rs. 25,000/- shall be payable by each of the Ops/Appellants to the Complainants/Respondents. The OPs/Appellants were also directed to pay to the Complainants/Respondents Rs. 40,000/- as compensation as also to deposit with the State Consumer Welfare Fund Rs. 25,000/- as punitive damages within 45 days from the date of the order. Each of the OPs/Appellants were further directed to pay to the Complainants/Respondents Rs. 10,000/- per month in case of non-compliance of the aforesaid directions.
Facts of the case, in brief, are that the Complainants/Respondents entered into an Agreement for Sale dated 15.12.2007 for purchase of a flat of 580 sq. ft. super built-up area of the building concerned at 7E/1H, Surah Cross Lane, P.S. Beliaghata, Kolkata-700 010, for a total consideration of Rs. 6,10,000/- and accordingly, the Complainants/Respondents paid Rs. 6,00,000/- to the OPs/Appellants with the stipulation for payment of the balance consideration of Rs. 10,000/- before or at the time of registration. After such payment, the possession of the flat in question was handed over to the Complainants/Respondents on 15.12.2007 in incomplete condition, as alleged by the Complainants/Respondents. Even after passage of a long time after such payment of the consideration amount and handing over the possession of the flat in question, the OPs/Appellants did not execute and register the Deed of Conveyance in favour of the Complainants/Respondents inspite of sending to the OPs/Appellants a cheque for the balance consideration being Rs. 10,000/- along with the draft Deed of Conveyance for approval. Rather, the OPs/Appellants by a letter dated 1.2.2012 unilaterally cancelled the Agreement for Sale in question inspite of absence of term and condition for unilateral cancellation of the said Agreement for Sale being there in the said Agreement. Thereafter, the Complainants/Respondents moved the Ld. District Forum on 16.5.2012, which passed the order in the aforesaid manner. Meanwhile, the OPs/Appellants filed a Title Suit No. 79/2012 before the Ld. Court of 1st Civil Judge, Junior Division, Sealdah, which is reportedly still pending. However, being aggrieved by the aforesaid order of the Ld. District Forum the Ops have preferred the present Appeal before this Commission.
The Ld. Advocate for the Appellants/OPs submits in the very beginning that a Title Suit No. 79/212 before the Ld. Court of 1st Civil Judge, Junior Division, Sealdah, in respect of the same matter having been pending, the Consumer Fora cannot adjudicate the case in derogation of the Civil Procedure Code and also creating any probability of any conflict of decisions by two judicial Fora.
The Ld. Advocate also submits that after expiry of more than three years from the date of Agreement for Sale ( Page-6 of W/V) the Respondents/Complainants cannot legally claim for execution and registration of the flat in question for vacating illegal occupancy of which by the Respondents/Complainants a Notice dated 2.1.2012 was served upon the Respondents/Complainants revoking 'licence of occupancy of the said flat'.
The Ld. Advocate further submits that out of the mutually settled total price of the flat being Rs. 6,10,000/- the Appellants/OPs received Rs. 4,00,000/- by signing an Agreement for Sale for the flat dated 15.12.2007 through different A/C Payee Cheques and subsequently, they received the sum of Rs. 2,00,000/- through Pay Order No. 368062 dated 14.6.2008 (Page-4 of W.V., Running Page-27 of Memo of Appeal).
The Ld. Advocate continues that the Cheque No. 638282 dated 12.3.2012 for Rs. 10,000/- for balance consideration along with the Deed of Conveyance was returned to the Complainants/Respondents as the execution and registration of the flat in question was not sought for earlier by the Complainants/Respondents on one excuse or the other on payment of balance consideration of Rs. 10,000/- despite repeated reminders to the Respondents/Complainants by the Appellants/OPs (Page-5 of W.V., Running Page-28 of Memo of Appeal).
The Ld. Advocate finally submits that in view of the aforesaid submission there is no deficiency in service and unfair trade practice on the part of the Appellants/OPs and the impugned judgment and order should be set aside, it being bad in law and perverse.
The Ld. Advocate for the Respondents/Complainants, on the other hand, submits that the Ld. District Forum rightly passed the impugned judgment and order after proper appreciation of the fact and legal position of the case.
The Ld. Advocate also submits that pending Title Suit before the Ld. Civil Judge does not stand in the way of adjudication of the instant case by the Consumer Fora in view of the decision of the Hon'ble National Commission in Indrani Chatterjee & Anr. Vs. AMRI Hospitals passed on 7.11.2014 in IA No. 1746 of 2014, wherein it was held that summary trial of Consumer complaint has to be given precedence over other cases, be it Civil or Criminal in nature.
The Ld. Advocate further submits that despite receipt of substantial amount of consideration and delivery of possession of the flat in favour of the Respondents/Complainants, failure to execute and register the Deed of Conveyance on the part of the Appellants/OPs constitutes deficiency in service.
The Ld. Advocate concludes that in view of the aforesaid factual and legal position of the case, the Appeal should be dismissed and the impugned judgment and order should be sustained.
We have heard both the sides, considered their rival submissions and perused the materials on records.
As for the pendency of the Title Suit before the Ld. Civil Judge, Sealdah, the submission of the Ld. Advocate for the Respondents/ Complainants to the effect that the Civil suit does not stand in the way of adjudication of the case by the Consumer Fora, stands tenable in view of the decision of the Hon'ble National Commission in Indrani Chatterjee & Anr. Vs. AMRI Hospitals (supra).
The materials on records, particularly the Written Version of the OPs/Appellants, reveals that the Appellants/OPs received from the Respondents/Complainants Rs. 4,00,000/- at the time of signing the Agreement for Sale of the flat in question dated 15.12.2007 through different A/C Payee Cheques and subsequently, Rs. 2,00,000/- by Pay Order No. 368062 dated 14.6.2008 (Page-4 of W.V., Running Page-28 of Memo of Appeal) and the Appellants/OPs requested the Respondents/Complainants several times to get the flat registered on payment of the balance consideration of Rs. 10,000/-, but the Respondents/Complainants 'deferred' the same on one pretext or another and did not pay the balance due consideration.
Thus, the revelation from the aforesaid materials on records indicate that the Appellants/OPs were willing much earlier to execute and register the Deed of Conveyance of the flat in question in favour of the Respondents/ Complainants, but the same could not be done for the deferment of the same by the Respondents/Complainants themselves.
However, on the above facts and circumstances of the case it becomes clear that the Respondents/Complainants are in possession of the flat in question and they are entitled to get the Deed of Conveyance executed and registered. In view of the foregoing discussion, the Appeal is allowed in part and the impugned judgment and order is modified to the following exent:
The Appellants/OPs are directed to execute and register the Deed of Conveyance in respect of the flat in question in favour of the Respondents/Complainants on receiving the balance consideration being Rs. 10,000/- within 45 days from the date of the order, failing which the Respondents/Complainants will be at liberty to get the Deed executed and registered through the machinery of the Ld. District Forum.
The other directions in the impugned judgment and order are set aside.
The impugned judgment and order thus stands modified to the above extent. [HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MRS. MRIDULA ROY] MEMBER [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER