State Consumer Disputes Redressal Commission
Mr. Gautam Sreemany vs Mr. Shambhu Prasad Shaw & Others on 6 September, 2010
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. : FA/90/2010 DATE OF FILING : 18.02.2010 DATE OF FINAL ORDER: 06.09.2010 APPELLANT Mr. Gautam Sreemany S/o Late Shambhu Nath Sreemany 96K, Shyama Prosad Mukherjee Road Kolkata-700 026. RESPONDENTS 1. Shambhu Prasad Shaw 2. Ishwar Dayal Shaw 3. Mahendra Prasad Shaw All of 1, Bakul Bagan Road, Kolkata-700 025. BEFORE : MEMBER : MRS. S.MAJUMDER MEMBER : MR. S.COARI FOR THE PETITIONER / APPELLANT : Mr. Prabir Basu, Ld. Advocate FOR THE RESPONDENT / O.P.S.: Mr. Anjan Dutta, Ld. Advocate : O R D E R :
MR. S.COARI, LD. MEMBER The present Appeal has been directed against the judgement and order dt. 19.1.10 passed by the Ld. District Forum, South 24 Parganas, Alipore, in C.C.Case No. 258 of 2008 wherein the Ld. District Forum dismissed the petition of complaint ex parte against the OP Nos. 1 & 2 and on contest against OP No. 3 without cost.
The Complainant/Appellants case before the Ld. District Forum, in brief, was that the complainant entered into an agreement on 9.8.04 with the Respondents/Ops for purchase of a land with structure constructed therein measuring more or less 2 cottahas 1 chittak 32 sq. ft. having super built area of about 1100 sq. ft. at the ground floor at Dag No. 4306 under Khatian No. 2229, P.S. Kasba, Kolkata-700 107 at a consideration of Rs. 12,05,000/-. The complainant in terms of the agreement made part payment to the tune of Rs. 6,00,000/- out of the total consideration money and as a consequence to his part payment physical possession of the land and structures thereof were handed over to the complainant by the Ops. Subsequently on 24.9.07 a sum of Rs. 2,00,000/- was paid to the OP No. 3 by the complainant for construction of an additional room with a toilet.
According to the Complainant, in spite of the fact that the complainant was/is always ready and willing to make the balance payment, the Ops are not willing to execute and register the Deed of Conveyance in favour of the complainant in respect of the property in question and hence, the petition of complaint was filed by the complainant against the Ops with a direction to execute and register the Deed of Conveyance in favour of the complainant along with a direction upon the Ops to pay compensation to the tune of Rs. 1,00,000/- and also for litigation cost.
Before the trial court the OP Nos. 1 & 2 in spite of receipt of notice did not contest the case.
The OP No. 3 contested the case by filing written version wherein he has contended that the OP No. 3 is ready and willing to cooperate with the complainant provided the balance amount is paid to him.
Ld. District Forum while disposing of the petition of complaint has observed that from the materials on record it has become evident that the transaction between the parties tantamounted to agreement simplicitor for purchase of immovable property and hence, the complainant cannot claim himself to be a Consumer in the true sense of the term as provided in the Consumer Protection Act. In this connection, the Ld. District Forum has also observed that though the complainant had tried to make out a case that an additional sum of Rs. 2,00,000/- was paid towards construction of an additional room with toilet facility, but in the absence of any proof that the OP Nos. 1 & 2 agreed to such proposition, question of granting any relief to the complainant does not arise at all and accordingly dismissed the petition of complaint in the manner as discussed above.
Being aggrieved and dissatisfied with such finding of the Ld. District Forum the complainant/Appellant has preferred the present Appeal.
The only moot question that revolves round the present Appeal is as to whether the Ld. District Forum was justified in disposing of the petition of complaint in the manner as discussed above.
DECISION WITH REASONS At the time of hearing it has been submitted on behalf of the Appellant/Complainant that in this case the Ld. District Forum has failed to appreciate the actual state of affairs, which took place between the parties in respect of the transaction entered into between the parties involving the property in question. According to the Ld. Advocate for the Appellant, the Ld. District Forum without considering the admitted position and pleadings of the parties has mistakenly observed that there was no evidence on record justifying the involvement of the OP Nos. 1 & 2 in respect of the case, which the complainant attempted to make out so far as it relates to additional payment of Rs. 2,00,000/- for construction of the additional room along with toilet facilities.
According to the Ld. Advocate for the Appellant, in this connection the subsequent amendment petition filed by the complainant is very much relevant, which accompanies the declaration of the OP Nos. 1 & 2 in support of the plaintiffs case so far as it relates to payment of Rs. 2,00,000/- to the OP No. 3 for the purpose of construction of an additional room with toilet facilities. According to the Ld. Advocate, perhaps due to oversight all this aspect of additional pleading on behalf of the complainant/ Appellant the Ld. District Forum has erred in appreciating the case of the complainant and as such, has arrived at a wrong and improper decision and on this score alone the impugned judgement is liable to be set aside. While elaborating on this point the Ld. Advocate for the Appellant has urged before us that when the OP No. 3 is ready and willing to handover the title deed of the property in question to the complainant and to execute and register the Deed of Conveyance in respect thereof in favour of the complainant, there was no point on the part of the Ld. District Forum in dismissing the petition of complaint thereby treating the transaction to be an agreement for sale simplicitor. The Ld. Advocate for the Appellant has also submitted that a transaction of the present nature entered into between the parties wherein there is valid and specific agreement for construction of a property and subsequent execution of the Deed of Conveyance and registration thereof, can always be attributed a transaction, which is very much within the purview of the Consumer Protection Act.
In this connection, the Ld. Advocate for the Appellant has also drawn the attention of this Commission to the effect that from the materials on record it has become quite evident that the Appellant/Complainant is entitled to the reliefs as prayed for in the capacity of a consumer and that the transaction entered into between the parties is not at all an agreement for sale of immovable property only. While concluding his submissions the Ld. Advocate for the Appellant has submitted that it is a settled principle of law that non-execution of sale deed as per agreement tantamounts to deficiency in service as held by the Honble National Commission in its decision reported in 1997 (1) CPR 45 (NC). According to the Ld. Advocate for the Appellant, there is absolutely no impediment on the part of this Commission to direct the Ops to execute and register the Deed of Conveyance in respect of the said plot of land with structure and additional room with a toilet within the stipulated period of time after accepting the balance amount and in default the complainant should be given liberty to have the deed executed and registered through the machineries of this Commission/Ld. District Forum.
We have duly considered the submissions so put forward on behalf of the Appellant and have also gone through the materials on record including the LCR, pleadings of the parties and the impugned judgement and find that in this case the complainant/Appellant has put forward a case to the effect that in spite of his entering into an agreement between the Ops in respect of the sale of immovable properties with some structures and in the process the complainant having paid almost half of the consideration amount and though the possession of the property in question was given in favour of the complainant, but ultimately the Ops were reluctant to execute and register the Deed of Conveyance in favour of the complainant after accepting the balance amount. In this connection, the complainant has put forward a further case of advancement of Rs. 2,00,000/- in favour of the OP No. 3 towards construction of an additional room with toilet facilities. The OP Nos. 1 & 2 did not contest the case nor they are contesting the present Appeal. However, the contesting OP No. 3 expressed his willingness to deposit the original title deed in respect of the property in question and cooperate the complainant in the matter of execution and registration of the deed of conveyance provided the balance amount of consideration is paid by the complainant.
On perusal of the impugned judgement we find much substance in the submissions so put forward by the Ld. Advocate for the Appellant so far as it relates to amendment application filed by the complainant, which is accompanied by a declaration on the part of the OP Nos. 1 & 2 annexed therein, which supports the complainants version of the case so far as it relates to additional construction of room with toilet facilities. We also find the argument put forward on behalf of the Appellant quite convincing so far as it relates to designating the complainant to be a Consumer and that the transactions entered into between the parties to be well within the ambit of Consumer Protection Act for taking necessary action against the erring Ops so far as it relates to non-execution of the Deed of Conveyance and registration of the same in favour of the complainant after accepting the balance amount. In this connection, we also find the reported decision cited on behalf of the Appellant to be very much relevant. Thus, considering the present Appeal in the light of above discussions we find no impediment in the complainant/Appellants getting an order in his favour in terms of the prayer of the petition of complaint. Accordingly, we hold that the impugned judgement is not sustainable under the law and the same is liable to be set aside. In the result, the Appeal succeeds ex parte without cost against the OP Nos. 1 & 2 and on contest without cost against the OP No. 3. The impugned judgement stands set aside.
Consequently the petition of complaint succeeds and the complainant/Appellant is entitled to have the reliefs in terms of the prayer of the petition of complaint. The OPs/Respondents are directed to execute and register the Deed of Conveyance in favour of the complainant as prayed for by the complainant after accepting the balance amount of consideration. The OP No. 3 is also directed to refund Rs. 2,00,000/- which was paid to him by the complainant towards construction of an additional room with toilet facilities. The Ops are also directed to comply with the directions within 45 (forty five) days from the date of receipt of the order, failing which the complainant will be at liberty to have Deed of Conveyance executed and registered in his favour through the machineries of this Commission/Ld. District Forum as per law.
MEMBER MEMBER