State Consumer Disputes Redressal Commission
Mr. Swapan Mukherjee vs Mr. Ashis Datta & Others on 28 November, 2011
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/596/2010 DATE OF FILING : 12.10.2010 DATE OF FINAL ORDER: 28.11.11 APPELLANT Mr. Swapan Mukherjee 4, Srinath Chakraborty Lane P.S. Baranagar Dist. 24 Parganas (N). RESPONDENTS 1. Mr. Ashis Datta S/o Late Birendra Chandra Datta 36/32, Nim Chand Moitra Street P.O. Alam Bazar, P.S. Baranagar Kolkata-700 035, Dist. 24 Parganas (N). 2. R.K.Construction 4, Srinath Chakraborty Lane 4/3, Motilal Mallick Lane P.O. Alambazar, P.S. Baranagar Kolkata-700 035. 3. Mr. Ranjan Sen S/o Late Ramkrishna Sen 4/3, Motilal Mallick Lane P.O. Alambazar, P.S. Baranagar Kolkata-700 035, Dist. 24 Parganas (N) 4. Mr. Kashinath Paria S/o Late Ramkrishna Sen 4/3, Motilal Mallick Lane P.O. Alambazar, P.S. Baranagar Kolkata-700 035, Dist. 24 Parganas (N) 5. Ms. Shikha Bhaduri W/o Ujjal Bhaduri 179/19, Gopal Lal Thakur Road P.S. Baranagar, Kolkata-700 035. 6. Ms. Kalyani Halder W/o Ramdas Halder 23, Deshbandhu Road (East) P.O. Alambazar, P.S. Baranagar Kolkata-700 035, Dist. 24 Parganas (N) BEFORE : HONBLE JUSTICE MR. P.K.SAMANTA, PRESIDENT MEMBER : MR. S.COARI FOR THE PETITIONER / APPELLANT : Mr. Somnath Giri, Ld. Advocate FOR THE RESPONDENT / O.P.S.: Mr. Barun Prasad, Ld. Advocate : O R D E R :
MR. S.COARI, LD. MEMBER The present Appeal has been directed against the judgement and order dt. 30.7.10 passed by the North 24 Parganas District Consumer Forum in C.C. Case No. 3/2008 wherein the Ld. District Forum allowed the petition of complaint in part on contest against the Ops with cost thereby directing the Ops to be jointly and severally liable to execute and register the deed of conveyance of the flat in question in favour of the complainant by delivering the physical possession of the flat on receiving the balance consideration amount along with a further direction upon the Ops to obtain the Completion Certificate and to handover the same to the complainant and also to furnish electric connection in the flat in question and also directing the contesting Ops to pay Rs. 5,000/- towards compensation and Rs. 1,000/- towards litigation cost proportionately in favour of the complainant.
The Complainant/Respondents case before the Ld. District Forum, in brief, was that the complainant entered into an agreement for sale with the OP Nos. 2 & 3 being the partners of the OP No. 1/Construction Company for purchase of a flat situated at Premises No. 4, Srinath Chakraborty Lane, Kolkata-35 for a consideration of Rs. 3,25,000/-, out of which Rs. 2,65,000/- was paid to the Ops.
According to the complainants case, the Ops never intended to complete the flat in question within the stipulated period, nor they executed and registered the same in favour of the complainant and delivered the physical possession of the flat in question and hence, the petition of complaint for proper redressal.
Amongst the Ops only the OP Nos. 5 & 6 contested the case by filing written version thereby denying all the material averments of the petition of complaint contending inter alia that the complainant never availed of any service from the contesting OP Nos. 5 & 6 nor their predecessor-in-interest ever entered into an agreement with the complainant, nor their predecessor ever empowered the OP Nos. 1 to 3 to represent her in the matter of entering into an agreement with the complainant for the purpose of delivering the physical possession of the flat in question and to execute and register the sale deed in favour of the complainant as alleged by the complainant. According to the Ops, the complainant having filed the petition of complaint on all false and fictitious grounds the same was liable to be dismissed with cost.
The Ld. District Forum while disposing of the petition of complaint has observed that there was deficiency in service at the instance of the Ops in the matter of delivering physical possession of the flat in question in favour of the complainant and to execute and register the sale deed in respect of the said flat in favour of the complainant after accepting the balance amount. According to the Ld. District Forum, the plea of existence of a separate civil proceeding in between the Ops (termed as owners) along with the OP Nos. 1 to 3 is not at all tenable as the purported gift deed in favour of the OP Nos. 5 & 6 by their predecessor-in-interest is a subsequent document to the agreement entered into by the OP Nos. 1 to 3 with the complainant and accordingly disposed of the petition of complaint in the manner as mentioned above.
The only moot question that revolves round the present Appeal is as to whether the Ld. District Forum was justified enough 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 that the Ld. District Forum has utterly failed to appreciate the actual state of affairs and the real controversy between the parties and as such, has arrived at a wrong and improper decision which is not at all sustainable under the law. According to the Ld. Advocate for the Appellant, when there was no positive materials in support of the complainants case so far as it relates to the legal proposition of transfer of right by the actual owners in favour of the complainant, question of designating the Ops to be deficient in service does not arise at all. According to the Ld. Advocate, the Ld. District Forum has overlooked the existence of the civil proceeding in between the actual owners and the OP Nos. 1 to 3 and on this score alone the impugned judgement should be set aside.
We have duly considered the submissions so put forward on behalf of the Appellant and also have gone through the materials on record including pleadings of the parties and the impugned judgement and find that in this case the complainant has put forward a simple case of entering into an agreement with the OP Nos. 1 to 3 for the purpose of purchasing a flat for valuable consideration after observing all the legal formalities and in the process has paid a substantial amount towards consideration money. The Appellant having utterly failed to deliver vacant possession of the flat and/or to execute and register the deed of conveyance of the complainant in respect of the flat in question the complainant was compelled to institute the consumer complaint for proper redressal. The contesting Op Nos. 5 & 6 tried to put up a case to the effect that the transaction between the complainant and the OP Nos. 1 to 3 is a voidable contract inasmuch as the predecessor-in-interest of the OP Nos. 5 & 6 has already gifted her share in the property by means of a gift deed and she never entered into an agreement with the complainant in the matter of selling of the flat to the complainant and that when there was a civil litigation pending in between the Ops, who are owners, and the OP Nos. 1 to 3, question of designating the Ops to be deficient in service does not arise at all and that the petition of complaint was liable to be dismissed.
We have carefully gone through the impugned judgement and find that the Ld. District Forum did appreciate the actual state of affairs reasonably well and as such, has arrived at a just and proper decision.
Much has been agitated before us as regards existence of a civil litigation and unfortunately the same being a litigation inter se amongst the Ops the Ld. District Forum was justified in ignoring the existence of the same and has rightly disposed of the petition of complaint in favour of the complainant. When from the materials on record it has become quite clear that after taking a substantial amount from the complainant towards consideration money of the flat in question, the Ops were reluctant in delivering vacant possession of the flat and/or to execute and register the deed of sale in favour of the complainant in respect of the flat in question. We also take note of the fact that the Ld. District Forum has traversed the cases of respective parties reasonably well and has arrived at a just and proper decision and accordingly we are not inclined to interfere with the finding of the Ld. District Forum, which stands confirmed.
In the result, the Appeal fails.
Hence, it is ORDERED that the Appeal stands dismissed on contest without any order as to cost.
The impugned jugement stands confirmed.
MEMBER PRESIDENT