State Consumer Disputes Redressal Commission
Ms. Pronita Barua vs Sri Sankar Biswas & Ors. on 16 December, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/588/2018 ( Date of Filing : 18 Jun 2018 ) (Arisen out of Order Dated 25/05/2018 in Case No. Complaint Case No. CC/714/2017 of District Kolkata-III(South)) 1. Ms. Pronita Barua D/o Lt. Pradeep Barua, 62, Shillong Medical Store, upto Watch Corner Abdul Gafur upto Umsohsun Bridge, Town/Vill. - Shillong, Dist. East Khasi Hills - 793 001. ...........Appellant(s) Versus 1. Sri Sankar Biswas & Ors. S/o Lt. Sudhir Kr. Biswas, 112/7, Diamond Harbour Road, Uddayan Pally, Kolkata - 700 008. 2. Sri Jayanta Biswas S/o Lt. Sudhir Kr. Biswas, 112/7, Diamond Harbour Road, Uddayan Pally, Kolkata - 700 008. 3. Sri Sudipta Biswas S/o Lt. Sudhir Kr. Biswas, 112/7, Diamond Harbour Road, Uddayan Pally, Kolkata - 700 008. 4. Smt. Bula Biswas W/o Lt. Susanta Biswas, 112/7, Diamond Harbour Road, Uddayan Pally, Kolkata - 700 008. 5. Miss Ishani Biswas D/o Lt. Susanta Biswas, 112/7, Diamond Harbour Road, Uddayan Pally, Kolkata - 700 008. 6. Smt. Bulu Das Gupta W/o Lt. Chitta Ranjan Das Gupta, Vidyasagar Sarani, Dagar Math, Kolkata - 700 008. 7. Sri Rabi Dutta Legal heirs of Smt. Anjana Dutta(Deceased), Vidyasagar Sarani, Dagar Math, Kolkata - 700 008. 8. Miss Mahua Dutta Legal heirs of Smt. Anjana Dutta(Deceased), Vidyasagar Sarani, Dagar Math, Kolkata - 700 008. 9. Miss Mousumi Dutta Legal heirs of Smt. Anjana Dutta(Deceased), Vidyasagar Sarani, Dagar Math, Kolkata - 700 008. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE ISHAN CHANDRA DAS PRESIDENT HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER HON'BLE MR. SHYAMAL KUMAR GHOSH MEMBER For the Appellant: Mr. Bimalendu Saha, Mrs. Debolina Saha, Advocate For the Respondent: None appears Dated : 16 Dec 2019 Final Order / Judgement MRS. SAMIKSHA BHATTACHARYA, MEMBER
This Appeal has been directed by the Complainant u/s 15 of the C.P Act, 1986 against the judgment dated 25.05.2018 passed by the Ld. DCDRF, Kolkata Unit-III, in CC No. 714 of 2017.
The facts of the case in brief are that one Smt. Nirmala Biswas , widow of late Sudhir Kumar Biswas was the absolute owner of the plot of land measuring an area of 9 cottah 15 chittacks 30 sqft more or less situated and lying at Mouza Paschim Barisa appertaining to Khatain No. 4046 , C.S. Dag No. 662 , R.S. Dag No. 662 / 4243 within the Kolkata Municipality Corporation, under Ward No. 125 being Premises No. 187 Diamond Harbor Road, P.S. Thakurpukur , Kolkata - 7000008 , Dist- 24 Parganas ( South) by virtue of a registered deed of sale dated 27.01.1951 and after purchase said Smt. Nirmala Biswas since deceased mutated her name in the record of the KMC. On 05.03.1992 said Smt. Nirmala Biswas, since deceased , entered into an agreement for construction of a multi storied building with Sri Tapas Ghosh , director of G.B. Buildtech Pvt. Ltd. on certain terms and conditions and simultaneously a general power of attorney executed and registered in favour of said Tapas Ghosh on behalf of said Smt. Nirmala Biswas to do the necessary works for the construction and sale of developers allocation at the discretion of the developer. Accordingly, G.B. Buildtech Pvt. Ltd. applied and obtained the building sanctioned plan for construction of G+ 4 storied building and in due course the developer had completed the building upon the aforesaid property as per building plan No. 3095 dated 27.01.1987 of the KMC consisting of several flats and garage spaces. It was agreed that Smt. Nirmala Biswas ,since deceased, shall get 4 flats and 4 car parking spaces of the said building as owner's share. During the period of construction Smt. Nirmal Biswas died intestate on 09.01.1999 leaving behind her only 4 sons and 2 daughters who inherited the aforesaid property and adopted the agreement for construction dated 05.03.92 . Thereafter, one of her daughter died and her legal heirs were impleded as OPs in the complaint case. Due to the death of Smt. Nirmal Biswas the General Power of Attorney was revoked automatically and the developer did not take any step. During the period of construction of the building Pradip Barua, since deceased , the father of the Complainant, booked a flat by virtue of an agreement for sale dated 01.03.1995 in respect of flat No. 3C measuring about 931 sqft. of super built up area be the same or a little more or less on the 3rd floor together with undivided proportionate share of land and user of common areas and amenities of the building lying on the aforesaid premises for a total consideration of Rs. 1,96,950 /- only and said Pradip Barua paid full consideration and the said developer delivered peaceful khas possession on 08.09.1997. The developer issued the possession letter to that effect. During his life time Pradip Barua requested the developer as well as the owners to execute and register the deed of conveyance but the developer and the owners deliberately and intentionally avoided the execution and registration of the dead of conveyance of the flat in question . Thereafter, the Complainant served a notice on 02.05.2017 through Advocate praying for execution and registration of the deed of conveyance in favour of the Complainant but the owners /OPs did not pay any heed. Hence the Complainant filed an application before the Ld. District Forum praying for a direction upon the OPs to execute and register the deed of conveyance in respect of the property given in favour of the Complainant, in default to execute and register the deed of conveyance through the machinery of Ld. Forum in favour of the Complainant.
Though the notices were served OPs did not turn up before the Ld. Forum and hence, the case was proceeded exparte against them.
Ld. District Forum dismissed the case ex parte .
Being aggrieved by and dissatisfied with the order of the Ld. DCDRF, the Complainant / the Appellant filed the instant appeal .
None appears on behalf of the Respondents /OPs before this Commission also . Therefore, the matter was heard ex parte .
Ld. Lawyer for the Complainant / Appellant submits before us that since the power of attorney was automatically revoked after the death of Smt. Nirmala Biswas the owners are liable to do the necessary works for execution and registration of the deed of conveyance in favour of the Complainant. Ld. Lawyer has revealed that the development agreement was executed between the father of the Complainant and the developer but the Complainant has not made the developer as a party who is the necessary party of this case to adjudicate the matter. Ld. Forum has observed that the present Complainant has not filed any document to prove her heirship moreover there is no whispering regarding the legal heirs of deceased son of Nirmal Biswas namely Susanta Biswas. It is pertinent to mention here that we do not approve the findings of the Ld. Forum for asking the documents for proving the legal heirship of the parties .
In the memo of appeal Complainant has stated in para No. 12 that she has annexed the documents namely agreement for sale dated 01.03.1995, payment receipts and letter of possession dated 05.09.95 death certificate of Pradip Barua dated 04.012.2011 , death certificate of Sutapa Barua dated 18.03.13 birth certificate of Pranita Barua ( Complainant ) dated 03.10.88, and Advocate notice dated 02.05.2017.
Upon perusal of entire material on records and for the above noted reasons we think it would be just and proper to remand the case to the concerned District Forum to adjudicate the matter afresh. Complainant is at liberty to amend the cause title by incorporating the name of the developer who is the necessary party of the instant case.
The judgment passed by the Ld. District Forum is set aside and Ld. Forum is requested to hear the case afresh. Since the case is remanded back to the concerned District Forum we refrain ourselves from passing any opinion on other issues involved therein . Ld. District Forum is requested to proceed with the case as per law upon serving the notices to all the OPs after filing the amended petition of complaint by the Complainant.
The present appeal is disposed of with above observations.
Parties are directed to appear before the Ld. DCDRF, Kolkata Unit -III on 22.01.2020.
[HON'BLE MR. JUSTICE ISHAN CHANDRA DAS] PRESIDENT [HON'BLE MRS. SAMIKSHA BHATTACHARYA] MEMBER [HON'BLE MR. SHYAMAL KUMAR GHOSH] MEMBER