State Consumer Disputes Redressal Commission
Sambhu Nath Chatterjee vs Sri Biswajit Dey on 15 January, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/772/2014 (Arisen out of Order Dated 11/06/2014 in Case No. Complaint Case No. CC/44/2014 of District South 24 Parganas) 1. Sambhu Nath Chatterjee S/o Late Bishnupada Chatterjee, 397, Mahatma Gandhi Road, P.S. Haridevpur, Kolkata - 700 063. ...........Appellant(s) Versus 1. Sri Biswajit Dey S/o Sri Sushil Kumar Dey, 100A, Dakshin Para Road, P.S. Thakurpukur, Kolkata -700 063, Dist. South 24 Pgs. 2. M/s. M.B. Construction, A partnership firm 241A/1, Diamond Harbour Road, P.S. - Thakurpukur, Kolkata - 700 063, Dist. South 24 Pgs. 3. Smt. Mousumi Das W/o Sri Mrinal Kanti Das, 'Balaka', Joka, Thakurpukur, P.S. Haridevpur, Kolkata - 700 104. 4. Sri Basudev Halder S/o Late Panchu Gopal Halder, 241-A/1, Diamond Harbour Road, P.S. Thakurpukur, Kolkata -700 063. 5. Sri Pradip Ghosh S/o Lt. Bimal Ghosh, 100A, Dakshin Para Road, P.S. Thakurpukur, Kolkata - 700 063. 6. Sri Uttam Ghosh S/o Lt. Bimal Ghosh, 100A, Dakshin Para Road, P.S. Thakurpukur, Kolkata - 700 063. 7. Sri Sujit Ghosh S/o Lt. Bimal Chandra Ghosh, 100A, Dakshin Para Road, P.S. Thakurpukur, Kolkata - 700 063. 8. Smt. Rupanjali Ghosh W/o Lt. Pranab Ghosh, 100A, Dakshin Para Road, P.S. Thakurpukur, Kolkata - 700 063. 9. Smt. Jhuma Mondal W/o Sri Anirban Mondal, 100A, Dakshin Para Road, P.S. Thakurpukur, Kolkata - 700 063. 10. Smt. Shyamaly Ghosh D/o Lt. Bimal Chandra Ghosh, 100A, Dakshin Para Road, P.S. Thakurpukur, Kolkata - 700 063. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Appellant: Mr. Debnarayan Roy , Advocate For the Respondent: Ms. Jayoti Podder, Ms. Mousumi Chakraborty., Advocate ORDER 15.01.2016 HON'BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant Appeal is at the behest of one Shri Sambhunath Chatterjee u/s 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') to impeach the Order no. 8 dt. 19.5.2014 and Order No. 12 dt. 11.6.2014 passed by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Alipore (for short, 'Ld. District Forum') in Consumer Complaint Case No. 44 of 2014.
One Sri Biswajit Dey, who has been arrayed as Respondent No. 1 has initiated the Consumer Complaint u/s 12 of the Act against the Developer and the Landowners with prayer for certain reliefs including a direction upon the OPs to execute and register the Deed of Conveyance in respect of a self-contained flat measuring about 720 sq. ft. on the second floor of south-east orientation lying and situated at Premises No. 100A, Dakshin Para Road, Police Station-Thakurpukur, Kolkata-700 063, District-South 24 Parganas. In the midst of the hearing of that case the Appellant herein, being the applicant, filed an application under Order 1 Rule 10(2)of C.P.Code with a prayer for adding him as a party to that proceeding. By Order No. 8 dt. 19.5.2014 the Ld. District Forum rejected the application filed on behalf of the Appellant on the ground that the property of C.C.No. 44/2014 and the property of C.C.No. 26/2013 are different. Subsequently, by Order No. 12 dt. 11.6.2014 the Ld. District Forum allowed the Consumer Complaint on admission in view of the fact that the OP Nos. 2 to 7, being the Landowners were ready and willing to execute and register the Deed of Conveyance and the OP No. 1(a) at Pages-5 & 6 of her Written Version has admitted her readiness and willingness to execute the Deed of Conveyance and the OP No. 1(b) in spite of having received the Notice did not appear before the Ld. District Forum.
According to the Appellant, he entered into an Agreement with the Developer to purchase the property and due to non-fulfillment of the obligation on the part of the Developer he had to initiate a Consumer Complaint, being No. 26 of 2013 before the Ld. District Forum and the Ld. District Forum by Order dt. 30.12.2013 passed an order in his favour directing the OPs to execute and register the Deed of Conveyance in respect of a flat measuring about 650 sq. ft. at the south-east-north side of the 2nd floor.
Mr. Netai Chandra Saha, Ld. Advocate appearing for the Appellant, has submitted that the flat, which was required to be registered in favour of his client in connection with the Complaint Case No. 26 of 2013, is the same and identical with the flat in question of the instant Complaint Case against which the Appeal has been preferred. The Ld. Advocate for the Appellant has submitted that since the flats are lying and situated on the second floor in respect of the self-same premises and further, his client has purchased the property earlier, the impugned order is liable to be set aside. On the other hand, the Ld. Advocate for the Respondent no. 1 has submitted that the flat of his client is situated on the second floor at the south-east side measuring about 720 sq. ft. super built-up area lying and situated at 100A, Dakshin Para Road, Police Station-Thakurpukur, Kolkata-700 063, District- South 24 Parganas and on the other hand, the flat in which the Appellant obtained an order is comprising of an area of 650 sq. ft. situated at the south-west-north side.
Therefore, having heard the Ld. Advocate for the respective parties the point of dispute has cropped up with regard to a question whether both the flats on the second floor fall on the allocated portion of the Developer or not. The Appellant, who has brought the allegation, did not take any pain to file the Development Agreement between the Developers and the Landowners in order to ascertain the actual state of affairs. Had it been placed, it would have been quite clear whether both the flats on the second floor fall within the allocated portion of the Developer or not. The Respondent No. 1 resisting the same, filed a copy of the plan approved by the Kolkata Municipal Corporation. The said sanctioned plan clearly indicates that there are two flats on the second floor and one of those two flats stands on the front side approaching the wide KMC road and the other on the back side. The Respondent No. 1 is claiming the flat at the back portion of the second floor. The indication of the approved map also indicates that the flat in question of the Respondent No. 1 is situated on the south-east side as per the sanctioned plan.
Therefore, when the sanctioned Building Plan clearly indicates that there are two flats in the second floor and inspite of having an opportunity and scope the Appellant did not take any pain to produce the Development Agreement which could throw further light on the same, we must draw an adverse presumption against the Appellant.
Considering the facts and circumstances and having heard the Ld. Advocates for the respective parties we do not find any merit in the Appeal. As a result, the Appeal is liable to be dismissed. However, considering the facts and circumstances we do not like to impose any order as to costs in this Appeal.
For the reasons aforesaid, the Appeal is dismissed on contest against the Respondent No. 1 and ex parte against the rest but without any order as to costs.
The Order Nos. 8 and 12 passed on 19.5.2014 and 11.6.2014 respectively by the Ld. District Forum, South 24 Parganas at Alipore are hereby affirmed. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER