State Consumer Disputes Redressal Commission
Mr. Mahim Chatterjee vs Mr. Goutam Ghosh & Others on 13 May, 2013
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. : SC/112/O/2000 DATE OF FILING : 17.07.2000 DATE OF FINAL ORDER: 13.05.2013 COMPLAINANT Mr. Mahim Chatterjee S/o Late Hemendra Chandra Chatterjee Residing at Premises No. 114/6, Becharam Chatterjee Road P.S. Behala, Kolkata-700 061 Now residing at Premises No. S-4, Panchasayar, Garia, P.S. Purba Jadavpur, Kolkata-700 084. Dist. South 24 Parganas. OPPOSITE PARTIES 1. Mr. Goutam Ghosh S/o Mr. Benoy Ghosh Sole proprietor of M/s. Ghosh Brothers Residing at Premises No. 258, Sarat Chatterjee Road P.S. Behala, Kolkata-700 060 Dist. South 24 Parganas. 2.(a) Mr. Kallol Bhowmick S/o Late Provat Ch. Bhowmick 133/3, Amherst Street Kolkata-700 009. (b) Mr. Chinmoy Bhowmick S/o Late Provat Ch. Bhowmick 133/3, Amherst Street Kolkata-700 009. (c) Dr. Nepal Bhokwmick S/o Late Provat Ch. Bhowmick M/12, CIT Building Kolkata-700 010. (d) Mrs. Anjana Ghosh W/o Animesh Ghosh 57, Indira Devi Road Parnasree, Behala Kolkata-700 060. BEFORE : HONBLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT MEMBER : MR. S.COARI MEMBER : MRS. MRIDULA ROY FOR THE APPELLANT : Mr. K.C.Arya, Ld. Advocate FOR THE RESPONDENT : Mr. P.K.Basu, Ld. Advocate : O R D E R :
MR. S.COARI, LD. MEMBER The present petition of complaint has been filed by the Complainant, Mr. Mahin Chatterjee, against the Ops (1) Developer/Promoter and (2) owners of the land, thereby alleging deficiency in service with a prayer for orders against the Ops for delivery of flat measuring 1085 sq. ft. and vacant peaceful khas possession thereof having fully been described in the schedule annexed to the petition of complaint, along with a prayer for execution and registration of the proper sale deed in favour of the complainant in respect of the flat in question along with compensation, damages and penal interest for non-performance of the contract entered into by and between the parties within the stipulated period.
The main contention of the petition of complaint, in brief, is that the complainant entered into two separate agreements with the Developer and land-owners in respect of the flat and the car parking space in question. According to the complainant, in spite of payment of entire consideration money the Ops did not effect delivery of possession of the flat and the garage space, nor have they executed and registered the deed of conveyance in respect of the flat and the garage space in favour of the complainant, which, according to the complainant, tantamounted to gross deficiency in service and hence, the petition of complaint.
The OP No. 1 contested the case by filing a written version thereby denying and disputing all the material averments made in the petition of complaint contending inter alia that the petition of complaint was not maintainable. The same having been filed on all false and fictitious grounds was liable to be dismissed.
The complainant in this case has wanted to enforce the agreement entered into by and between the parties, but the same being not adequately stamped the petition of complaint is not maintainable.
According to the OP, the complainant has suppressed some material facts in respect of the ownership of the property in question and one of the parties to the present case, namely, Bimal Kumar Bhowmick, died during the pendency of this proceeding and his legal heirs had not been properly substituted/represented. In this connection, it has been alleged that one of the legal heirs of the deceased Bimal Kumar Bhowmick, namely, Mr. Chinmoy Bhowmick happens to be an insane person and such insane person cannot be properly represented as per law. One of the brothers of the deceased Bimal Kumar Bhowmick in connivance with the complainant has instituted the present petition of complaint after suppression of material facts. According to the OP, unless and until the ownership matter in respect of the property in question is legally settled, the claim of the complainant cannot be entertained.
The petition of complaint having been filed after adopting unfair means the same is liable to be dismissed.
Upon the pleadings of the parties the following issues are framed for proper adjudication of the matter :-
1) Is the complaint case maintainable?
2) Are the Ops guilty of deficiency in service as claimed by the complainant?
3) Is the complainant entitled to the reliefs as prayed for?
DECISION WITH REASONS All the issues are taken up together for the same of convenience.
At the time of hearing it has been submitted on behalf of the complainant that in this case the complainant has placed all the cards before this Commission in support of the complaint case and save and except some wild and vague opposition, nothing positive has been pleaded by the Ops and considering all these aspects the petition of complaint should be allowed. While elaborating on this point the Ld. Advocate for the complainant has submitted before us that in this case the complainant has been successful in adducing and producing cogent and reliable evidence in support of the complaint case.
According to the Ld. Advocate, when it is an admitted position that the complainant has paid the entire consideration money in full in respect of the flat and the garage space in question, there cannot be any hindrance in allowing the petition of complaint in favour of the complainant, as prayed for. While criticizing the attempt on the part of the OP so far as it relates to production of original agreement and necessary impounding, the Ld. Advocate for the complainant has submitted before us that in a case of present nature, production of original agreement is not at all necessary and since the parties have acted in furtherance of the agreement in question, question of impounding the agreement in question does not arise at all and the Ops all along was non-cooperative and refused to act in pursuance to the agreement in question and adverse inference should be drawn against them and the petition of complaint should be allowed as prayed for.
We have duly considered the submissions so put forward on behalf of the complainant and have also gone through the materials on record including the pleadings of the parties and find that in this case the complainant has come forward with a case to the effect that in pursuance to an agreement entered into by and between the Complainant and the Developer and the Landowners, the complainant had booked a flat along with a garage space for a valuable consideration. According to the complainant, in spite of payment of entire consideration money the Ops have not delivered vacant possession of the flat in question nor have they agreed to execute and register the deed of conveyance in respect of the flat and the garage space, which is extremely detrimental to the interest of the complainant and also tantamounted to deficiency in service at the instance of the Ops as per provisions of the Consumer Protection Act and hence, the petition of complaint. The Ops, on the other hand, have challenged the maintainability of the petition of complaint. According to the Ops, when admittedly the complainant is trying to enforce the agreement in question, the original agreement ought to have been produced by the complainant and not only that, unless and until the same is impounded the agreement in question does not have any legal force and such agreement with insufficient stamp will not serve any purpose in respect of the petition of complaint instituted by the complainant and no effective order can be passed on that insufficiently stamped agreement in question. Besides that, some intricate question of law as regards devolution of the interest in the property in question on death of the one of the owners, namely, Bimal Kumar Bhowmick and also in the absence of settlement of ownership in respect of the property, the controversy raised in the petition of complaint cannot be effectively adjudicated. Considering all these aspects the petition of complaint should be dismissed.
We have carefully gone through the pleadings of the parties and the materials on record and find that it is an admitted position that initially the OP No. 1 challenged the maintainability of the petition of complaint on the ground of insufficiently stamped agreement entered into by and between the parties. This Commission rejected the plea of maintainability and on revision, the Honble High Court at Calcutta has observed that in the event if the complainant intended to enforce the agreement in question, the original agreement should be produced and on production of the original agreement question of impounding the same might be considered. In terms of the direction passed by the Honble High Court, initially the complainant killed more than one years time to produce the original agreement, but ultimately did not pursue the same. From the materials on record it is understood that the complainant while obtaining the loan facilities deposited the original agreement with the Petroleum Corporation Ltd.
From the materials on record we also find that subsequently the complainant was given adequate opportunity to bring necessary clarification from the Honble High Court, but the complainant did not take any positive step in that regard also. Considering the present matter in the light of above discussions we find much substance in the submission so put forward by the Ld. Advocate for the OP, according to whom, unless and until the original agreement is produced, the complainant is precluded from enforcing the agreement in question, which is the main basis of the present petition of complaint.
Besides that, we also take note of the law-points raised by the OP No. 1 so far as it relates to proper representation of the deceased owner, Bimal Kumar Bhowmick and determination of ownership of the property in question still remains unanswered at the instance of the complainant, which certainly hits at the very root of the petition of complaint.
Considering all these aspects we are of the considered opinion that the petition of complaint is not maintainable and that the complainant is not entitled to the reliefs as prayed for.
All the issues are accordingly disposed of. In the result, the petition of complaint fails.
Hence, it is ORDERED that the petition of complaint stands dismissed on contest but without any order as to costs.
MEMBER MEMBER PRESIDENT