National Consumer Disputes Redressal
Sri Rava Manna & Anr. vs Basudev Koley on 26 November, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2740 OF 2013 (Against the order dated 29.4.2013 in SC Case No. FA/176/2012 Of West Bengal State Commission, Kolkata ) 1. Sri Ravi Manna S/o Sripati Manna Residing at Nichupatti P.O. Chandannagar P.S. Chandannagar Distt. Hoogly West Bengal. 2. Pranab Roy S/o Late Durgapada Roy Residing at Fatakgora Sreepally, P.O. Chandannagar P.S. Chandannagar Distt. Hoogly West Bengal. Petitioners Versus Basudev Koley S/o Late Panchkori Koley Residing at Khaliani Baganbati P.S. Bhadreshwar Distt. Hoogly West Bengal. Respondent BEFORE : HONBLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER For the Petitioner : Shri Sayantani Das, Advocate. For the Respondent : Shri Uday Chandra Jha, Advocate. -2- Pronounced on 26th November, 2014 ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This Revision Petition has been filed by Petitioner against order dated 29.4.2013 passed by Learned State Commission in FA No. 176 of 2012- Sri Bishwadev Koley Vs. Sri Rabi Manna & Anr.; by which while allowing appeal, order of the District Forum dismissing complaint was set aside.
Brief facts of the case are that Complainant/Respondent was registered owner of the landed property as described in Schedule-A of the complaint. The Complainant entered into a development agreement with Opposite Party/Petitioner for construction of building on the aforesaid plot. Opposite Party offered to purchase entire property from the Complainant and deal was finalized on the condition that consideration would be Rs. 10.00 lakhs out of which Rs. 6.00 lakhs would be paid to the Complainant in cash and for the balance sum of Rs. 4.00 lakhs, flat measuring 500 sq.ft. to be constructed on this land, will be given to the Complainant by Opposite Party. The Opposite Party raised construction but refused to give flat to the Complainant in spite of repeated requests.
Complainant filed civil suit before Civil Judge (Junior Division), Chandernagore, but, that was returned back for want of pecuniary jurisdiction. Alleging deficiency on the part of Opposite Party, Complainant filed complaint before District Forum. Opposite Party resisted complaint and denied all the allegations and submitted that there was no agreement to give flat of 500 sq.ft.
to the Complainant. It was, further, submitted that civil suit was filed for specific performance -3- which was returned back and did not file civil suit before appropriate court and consumer Fora has no jurisdiction to grant relief of specific performance and prayed for dismissal of complaint. Learned District Forum after hearing both the parties dismissed the complaint. Appeal filed by Complainant was allowed by Learned State Commission vide impugned order and directed Opposite Parties to pay Rs. 4.00 lakhs being value of agreed flat with compensation of Rs. 1.00 lakh and litigation cost of Rs. 40,000/- against which this Revision Petition has been filed.
Heard Learned Counsel for the parties finally at admission stage and perused record.
Learned Counsel for Petitioner submitted that Petitioner never agreed to give flat of 500 sq.ft. and even if there was any agreement, it was without consideration and Learned District Forum rightly dismissed complaint but Learned State Commission committed error in allowing appeal, hence, Revision Petition be allowed and impugned order be set aside. On the other hand, Learned Counsel for Respondent submitted that order passed by Learned State Commission is in accordance with law, hence, Revision Petition be dismissed.
Perusal of record reveals that sale deed was executed between Complainant and Opposite Parties and Complainant sold land to Opposite Parties for a consideration of Rs. 6.00 lakhs and sale deed was executed on 17.5.2000. It appears that another declaration was executed between the parties on 19.5.2000 in which it was agreed that Opposite Party would provide flat of 500 sq.ft on the second floor at free of cost to the Complainant.
Legal notice dated 25.7.2008 given by -4- Advocate on behalf of Complainant also makes it clear that flat of 500 sq.ft. was to be given free of cost.
Thus, admittedly, flat of 500 sq.ft. was to be given to the Complainant free of cost and no consideration was paid by the Complainant to the Opposite Party for delivery of 500 sq.ft. flat.
Perusal of record, further, reveals that agreement dated 19.5.2000 was cancelled by deed of declaration dated 15.7.2006 as Complainant was unable to get the tenant evicted from land sold by the Complainant to the Opposite Party.
Learned Counsel for Respondent submitted that this declaration is fabricated. Though, he has not adduced any evidence to prove that this declaration is forged one, even if it is presumed that it is forged one, Complainant does not fall within the purview of consumer under the Consumer Protection Act, 1986 as he has not made or agreed to make payment for 500 sq.ft. flat.
Learned Counsel for Respondent submitted that deal was for Rs. 10.00 lakhs out of which Rs.
6.00 lakhs was paid in cash and flat worth Rs. 4.00 lakhs was to be given by the Opposite Party. This argument is devoid of force because sale deed is the registered document and no evidence can be led against the contents of registered document, according to which land was sold for Rs. 6.00 lakhs without any stipulation to provide flat of 500 sq. ft.
Learned State Commission has committed error in allowing complaint in spite of the fact that Complainant does not fall within the purview of consumer as he has not paid any consideration for the aforesaid flat. Learned District Forum rightly dismissed complaint and in such circumstances, Revision Petition is to be allowed.
-5-Consequently, Revision Petition filed by the Petitioner is allowed and order dated 29.4.2013 passed by Learned State Commission in FA No. 176 of 2012- Sri Biswadev Koley Vs. Sri Rabi Manna & Anr; is set aside and order of the District Forum dated 24.2.2012 in Complaint Case No. 62 of 2010 dismissing complaint is affirmed with no order as to costs.
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( K.S. CHAUDHARI, J. ) PRESIDING MEMBER Mk/court4/