State Consumer Disputes Redressal Commission
Sri Swapan Kr. Ghosh, 79, Shambhu Babu ... vs Smt. Anjali Ghosh, 37/C, Monilal Saha ... on 24 August, 2012
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/317/2011
(Arising out of order dated 13/06/11 in
Case No.CDF/Unit-II/C.C. No.498 of 2009 of District Consumer Disputes Redressal
Forum, Kolkata, Unit-II)
DATE OF
FILING:13/07/11 DATE OF FINAL ORDER:24/08/12
APPELLANTS : 1)
Sri Swapan Kumar Ghosh
S/o-Late Monilal Ghosh
2) Smt. Swarnalata Ghosh
W/o-Sri Swapan Kumar Ghosh
Both are residing at
79, Shambhu
Babu Lane
P.S.Entally, Kolkata-700 014
RESPONDENTS :
1) Smt. Anajli Ghosh
W/o-Late
Samir Ghosh
2) Sri Amarta
Ghosh
S/o-Late
Samir Ghosh
3) Smt.
Gayatri Ghosh
W/o-Late
Susanta Ghosh
4) Sri Samit
Ghosh
S/o-Late
Susanta Ghosh
All are
residing at
37/C, Monilal Saha Lane
P.O.Dharmatala
P.S.Taltala,
Kolkata-700 013
5) Smt.
Sarbani Ghosh
W/o-Biswanath
Ghosh
1/A, Scott Lane
P.O.Amharstreet,
P.S.Muchipara
Kolkata-700
009
PROFORMA RESPONDENT : Sri Pradip Dutta alias
Pradip
Kumar Dutta
S/o-Late
Chitta Ranjan Dutta
79, Shambhu
Babu Lane
Ground
floor
P.S.Entally,
Kolkata-700 014
BEFORE : HONBLE
JUSTICE : Sri Kalidas Mukherjee
President
HONBLE
MEMBER : Sri
S. Coari
HONBLE
MEMBER : Smt.
M. Roy
FOR THE APPELLANTS :
Mr.
Gobinda Prasad Roy
Ld.
Advocate
FOR THE RESPONDENTS
: Mr. Abhijit Chakraborty
Ld.
Advocate
Mr.
Prasanta Banerjee
Ld.
Advocate
: O R D E R :
No.8/24.08.12 HONBLE JUSTICE SRI KALIDAS MUKHERJEE, PRESIDENT This appeal is directed against the judgment and order passed by the Learned District Forum, Kolkata, Unit-II in case no.CC 498/2009 allowing the complaint in part and directing the OPs to execute and register the deed of conveyance in respect of the flat within a period of one month from the date of receipt of the certified copy of the order failing which the OPs will be liable to pay Rs.100/- to the complainant for each day of default. The Learned District Forum further directed the OPs to pay Rs.10,000/- as compensation to the complainants for causing harassment, mental agony and dragging them to the Forum.
The complainants are the appellants herein.
The case of the appellants/complainants, in short, is that they entered into an agreement dated 15/02/99 with the OPs in respect of the flat in the first floor (south-east) measuring 660 sq. ft. with one garage on the ground floor measuring 200 sq. ft. as described in the schedule of the complaint. The OPs became the joint owners of land measuring 6 cottahs 9 chhataks and 24 sq. ft. at 79, Sambhu Babu Lane, Kolkata-700 014 by registered deed of partition dated 09/03/88.
They also acquired 9 chhataks and 15 sq. ft. of land at 81, Sambhu Babu Lane, Kolkata-700 014 by deed of gift dated 22/08/95 from Mala Ghosh and thereafter by amalgamation of the aforesaid two plots of land got sanctioned building plan bearing no.BS 28 (B/vi) dated 27/03/97 from K.M.C. which was valid upto 26/03/02 and the OPs constructed partly four and partly three storied building with garage facilities at 79, Sambhu Babu Lane, Kolkata-700
014. The complainant is an employee of West Bengal State Government and applied for House Building Loan for the purchase of flat. Subsequently by virtue of agreement for sale dated 02/02/2000 with the OPs in writing on the back side of page no.1 of the original agreement for sale dated 15/02/99 the petitioner paid Rs.3,95,000/-.
The OP No.1 for self and on behalf of other OPs gave further declaration on 04/01/01 on the reverse of page no.2 and 3 of the agreement acknowledging the receipt of Rs.65,000/- with the undertaking to execute the sale deed for the flat and garage space by supplying necessary papers and the time limit was extended till the registration of the sale deed for the flat in favour of complainant no.1 and garage space either in the name of petitioner no.1 or petitioner no.2. The OP No.1 handed over the key of the incomplete flat to the complainant on 18/04/01 by taking further consideration money of Rs.1 lakh.
Subsequently, the complainant came to learn that the OP No.1 for some unknown reasons made a deed of gift in respect of the garage to one Sri Pradip Dutta, the Proforma OP No.6. The complainant instituted the case before the Learned District Forum praying for an order directing the OPs to execute and register the sale deed in favour of petitioner no.1 in respect of schedule B property and the complainant no.2 in respect of C schedule property and to direct all the OPs to deliver the possession of C schedule property to complainant no.2. The complainant also prayed for compensation of Rs.1 lakh for mental agony and unnecessary harassment.
The Learned Counsel for the appellants has submitted that the agreement in respect of the flat was executed on 15/02/99 and subsequently on the reverse of the first page of the agreement the vendors agreed to sell the garage to the complainants and the said agreement was made on 02/02/2000.
It is contended that subsequently the OPs being the owners gifted the garage to Proforma OP, Sri Pradip Dutta on 17/08/01. The Learned Counsel for the appellants submits that the Learned District Forum was pleased to pass an order for the execution and registration of the deed of conveyance in respect of the flat, but refused the prayer as regards the garage.
It is contended that since the agreement of the appellants/complainants in respect of the garage is earlier in point of time, the respondents/owners are bound as per terms of agreement to execute the deed of conveyance in respect of the garage. It is contended that the complainants paid the consideration money in full in respect of the flat and the garage as well. It is submitted that an order may be passed directing the respondents/owners to execute and register the deed of conveyance in respect of the garage as well.
The Learned Counsel for the Proforma Respondent/OP has submitted that the Proforma Respondent is not the party to the agreement in question and after getting possession the Proforma Respondent sold out the garage to another person. It is contended that before the Learned Consumer Forum there is no scope to decide the question of title in respect of property. It is submitted that the purchaser at best can get refund of the sum of Rs.40,000/- which was paid by the purchaser to the land owners.
We have heard the submission made by the Learned Counsel for the parties and perused the materials on record. It appears that the agreement was executed on 15/02/99 for the purchase of flat. In the backside of page 1 of the agreement there is endorsement made by the owners to the effect that they agreed to provide car parking space measuring 200 sq. ft. to the purchaser (second part) Sri Swapan Kumar Ghosh at premises no.79, Sambhu Babu Lane, Kolkata-700 014 for the price of Rs.40,000/- only. The annexure D at page 41 is the receipt granted by the respondents/owners acknowledging Rs.4,62,000/- as the consideration money in respect of the flat and Rs.40,000/- for the garage space from Sri Swapan Kumar Ghosh for himself and on behalf of Smt. Swarnalata Ghosh. The present appeal has been preferred by the complainants on the ground that the Learned District Forum allowed the prayer of the complainant with the direction to execute and register the deed of conveyance by the OPs in respect of the flat, but refusing such prayer in respect of the garage. It is the contention of the Learned Counsel for the appellants that as per the subsequent agreement as executed by the owners at the backside of page 1 of the original agreement they agreed to sell the garage to the complainants, but subsequently on 07/08/01 they executed a deed of gift in favour of the Proforma OP. It is contended that the subsequent agreement dated 02/02/2000 in respect of the garage being earlier in point of time the same would prevail and the OPs/respondents are bound to execute and register the deed of conveyance in favour of the appellants/complainants.
It is true that the subsequent agreement dated 02/02/2000 as written in the backside of page 1 of the original agreement is the continuation of the earlier one. But it appears that the Proforma OP, Sri Pradip Dutta got the garage by virtue of a deed of gift dated 07/08/01 executed by the owners and subsequently he sold the property to another person on 16/12/04. Although the agreement in favour of the appellants dated 02/02/2000 is earlier than the deed of gift, it is well settled that an agreement does not convey title in favour of another and in view of the successive deeds of transfer in respect of the garage, we are of the considered view that the appellants/complainants are not entitled to get an order for execution and registration of deed of conveyance in respect of the garage. But in view of the receipt being annexure D at page 41 it is clear that the owners received Rs.40,000/- from the purchaser for the sale of the garage.
Under the circumstances aforesaid, we find it expedient in the interest of justice that appellants/complainants should get refund of the sum of Rs.40,000/- from the owners/respondents herein.
The appeal is allowed. In addition to the reliefs granted by the Learned District Forum, it is ordered that the owners/respondents herein will refund the sum of Rs.40,000/- in respect of the consideration money of the garage and pay litigation cost of Rs.5,000/- to the appellants/complainants within 45 days from the date of passing this order failing which the said amount of Rs.45,000/- will carry interest @ 9% per annum till realisation. The impugned judgment stands modified to the extent above.
MEMBER(SC) MEMBER(L) PRESIDENT