State Consumer Disputes Redressal Commission
Archana Bera vs Arun Saha on 5 September, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Interlocutory Application No. IA/593/2018 ( Date of Filing : 30 May 2018 ) In First Appeal No. A/1322/2017 (Arisen out of Order Dated 20/11/2017 in Case No. CC/49/2017 of District Kolkata-III(South)) 1. Archana Bera D/o Ram Bera, 47, Sarat Bose Colony, P.S.- Garfa, Kolkata -700 078. ...........Appellant(s) Versus 1. Arun Saha S/o Lt. K.L. Saha, 71, K.P. Ray Lane, 1st Floor, P.S.- Garfa, Kolkata -700 078. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Mr. Partha Sarothi Kashyapi, Advocate For the Respondent: Anirban Dutta Dated : 05 Sep 2018 Final Order / Judgement
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the instance of an aggrieved person (not a party to the case) to impeach the final order/judgment dated 20.11.2017 passed by the District Consumer Disputes Redressal Forum, Kolkata, and Unit - III (for short, 'Ld. District Forum') in Consumer Complaint No. 49/2017. By the impugned judgement/final order, the Ld. District Forum allowed the complaint lodged by Respondent No.1 Smt. Archana Bera under Section 12 of the Act with the directions upon the developer and the landowners to execute the Deed of Conveyance and to handover Completion Certificate within two months from the date of order, to pay compensation of Rs.50,000/- and litigation cost of Rs.20,000/-.
The Respondent No.1 herein being complainant lodged the complaint before the Ld. District Forum asserting that on 30.07.2014 she entered into an agreement with the Opposite Parties to purchase a one room flat measuring about 375 sq. ft. more or less super built up area on the south-west side of the 1st floor of Premises No.71, K.P. Roy Lane, P.S.- Garfa, Kolkata - 700078, Dist- South 24 Parganas within the local limits of Ward No.105 of Kolkata Municipal Corporation (KMC) and paid Rs.8,18,000/- as consideration amount to the developer through cheques and cash. As per Agreement, the developer was under obligation to complete the flat and to deliver possession by April, 2015. Ultimately, she got possession on 12.06.2016 but inspite of requests, the complainant has not taken any step for executing Deed of Conveyance. Hence, the respondent no.1 approached the Ld. District Forum with prayer for several reliefs, viz. - (a) to direct the OPs to execute and register the Deed of Conveyance; (b) to direct the developer to obtain Completion Certificate; (c) to direct the OPs to pay compensation of Rs.5,00,000/- and (d) litigation cost of Rs.50,000/-.
The Respondent Nos. 2 & 3/Opposite Party Nos. 1 & 2 being Proprietorship Construction Firm and its Proprietor by filing a joint written version have stated that the complainant/respondent no.1 has break open the pad lock of a flat registered in the name of someone else without any authority took possession of the same and as such the complaint should be rejected.
Upon hearing the Respondent No.1/Complainant and Respondent Nos. 2 & 3/OP Nos. 1 & 2 (developer) the Ld. District Forum by the impugned order allowed the complaint with the directions as indicated above. Being prejudiced by the said order, the appellant, in favour of whom, a Deed of Conveyance has already been executed by the developer on 21.01.2016 has come up in this Commission with the present appeal.
The maintainability of the appeal has not been challenged because it is well settled by a catena of decisions that to be entitled to file an appeal, the person must be one aggrieved by the order. In other words, unless a person is prejudicially or adversely affected by an order, he is not entitled to file an appeal.
Mr. Anirban Dutta, Ld. Advocate for the Appellant has submitted that the Respondent Nos. 4 to 7 being the owners of Premises No.71, K.P. Roy Lane, P.S.- Garfa, Kolkata - 700078 entered into a Development Agreement with respondent no.2 Proprietorship Construction Firm represented by respondent no.3 on 13.01.2013 for the purpose of construction of a new building to be constructed as per Building Sanctioned Plan to be obtained from the KMC. After construction of the building, the developer declared to sell out the entire first floor of the building measuring about 1020 sq. ft. super built up area at a price of Rs.29,00,000/- and on 30.09.2014 the appellant had entered into an Agreement for Sale and ultimately on 21.01.2016 by way of registered Deed of Conveyance, the appellant has purchased the subject flat. However, while the appellant is in possession, on 13.06.2016 the respondent no.1/complainant forcibly took possession after breaking open the padlock.
Ld. Advocate for the appellant has further submitted that the subject flat which has already been sold out cannot be sold out for the second time unless the earlier Deed of Conveyance has been declared void or cancelled by a competent Civil Court. Expanding his submission, Ld. Advocate for the complainant has submitted that the appellant has lodged one FIR with Garfa P.S. for which one case being Garfa P.S. Case No.198 dated 17.06.2016 under Sections 120B/420/457/380 of IPC has been registered against the developer and the respondent no.1/complainant has also lodged one case being Garfa P.S. Case No.228 dated 07.07.2016 under Section 420 IPC against the developer. He has further contended that the appellant as plaintiff has already instituted a Suit for declaration, recovery of possession and injunction against the respondent no.1/complainant before the Ld. 2nd Court of Civil Judge (J.D.) at Alipore being T.S. No.918 of 2018 and the respondent no.1/complainant has not yet filed any suit praying for cancellation of the said earlier Deed which was registered in favour of the appellant. Ld. Advocate for the appellant has finally submitted that ignoring the fact that the dispute is of civil in nature, the Ld. District Forum proceeded to dispose of the same, which should have been relegated to a competent Civil Court.
Mr. Partha Sarothi Kashyapi with Mr. Arindam Peyada, Ld. Advocates for respondent no.1/complainant admitted the entire facts as narrated by the Ld. Advocate for the appellant but submitted that the respondent no.1 is a domestic help and somehow with her hard earned money, she purchased the flat and ultimately was subject to cheat by the developer.
I have given due consideration to the submission made by the Ld. Advocates appearing for the parties and scrutinised the materials on record.
Upon hearing the Ld. Advocates appearing for the parties and on a perusal of the record, it would reveal that on 30.09.2014 the respondent no.2 being represented by respondent no.3 had entered into an Agreement with the appellant to sell the flat lying on the 1st floor of the premises in question including the subject flat. Ultimately, on 21.01.2016 the developer has executed Deed of Conveyance in favour of the appellant and after purchase, the appellant was put in possession and to that effect on 22.01.2016 a possession certificate had been issued by the developer.
The record also reveals that on 30.07.2014 the developer had entered into an Agreement for Sale to sell the said flat to the respondent no.1/complainant and believing the said proposal, the respondent no.1/complainant has paid Rs.8,18,000/- as consideration amount.
Now, the statement made by respondent no.1/complainant before the Police Officer which was treated as FIR relating to Garfa P.S. Case No.228 dated 07.07.2016 under Section 420 IPC speaks that on 13.06.2016 respondent no.1took possession of the flat. At that time, the appellant had appeared there and disclosed that the flat was registered in his name and on hearing the same, the informant/respondent no.1 could realised that she was cheated.
In the written version, the developer/OP Nos. 1 & 2 have admitted that they have already registered the flat in the name of another person, who has been in occupation of the same.
In that perspective, the Ld. District Forum should not have passed any order simply for the reason that once a flat has already been sold out by a Deed of Conveyance, the said flat cannot be re-sold unless the earlier Deed is declared void or cancelled by a competent Civil Court. It is well settled that where there is an acute dispute of facts, a Consumer Forum which is primarily meant for disposal of a complaint in a summary way of limited purpose should not entertain such dispute and to refer the matter to a competent Civil Court for adjudication. Keeping in view the above proposition of law, the Ld. District Forum should not entertain the complaint, far less to speak of any order as the dispute between the appellant (who was not a party) and the respondent no.1/complainant is not amenable before a Forum constituted under the Act.
For the reasons aforesaid, the appeal is allowed on contest. Considering the facts and circumstances of the case, there will be no order as to costs.
The impugned judgement/final order dated 20.11.2017 passed by the Ld. District Forum in is hereby set aside.
Consequently, the CC/49/2017 stands dismissed being not maintainable. However, this order will not debar the Complainant/Respondent No.1 to approach a competent Civil Court like the appellant and in the process in order to overcome the hurdle of limitation, she may seek assistance of the decision of Hon'ble Supreme Court reported in (1995) 3 SCC 583 [Laxmi Engineering Works - Vs. - PSG Industrial Institute].
The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Kolkata , Unit-III for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER