State Consumer Disputes Redressal Commission
Sri Amit Hait vs Smt. Sarmistha Mukhopadhyay on 29 March, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/604/2014 (Arisen out of Order Dated 24/04/2014 in Case No. CC/380/2013 of District Howrah) 1. Sri Amit Hait S/o Sri Rabin Hait, 24/7/4, Brindaban Mullick Lane, Howrah-711101, Prop., Astha Developer, Office-2/1, Makardah Road, P.S.Bantra, P.O. Kadamtala, Dist. Howrah, Pin-711 101. 2. Sri Kallol Ghosh S/o Late Nandalal Ghosh alias Nandalal Banduri, 6, Makardah Road, P.O. Kadamtala, P.S. Bantra, Dist. Howrah. ...........Appellant(s) Versus 1. Smt. Sarmistha Mukhopadhyay W/o Sri Molay Mukhopadhyay & D/o Late Sachindranath Middya, 5, Kumarpara Lane, P.S. Bantra, Dist. Howrah. 2. Sri Hillol Ghosh S/o Lt. Nandalal Ghosh @ Nandalal Banduri, 6, Makardah Road, P.O. Kadamtala, P.S. Bantra, Dist. Howrah, Pin-711 101. 3. Sri Basudeb Ghosh S/o Lt. Nandalal Ghosh @ Nandalal Banduri, 6, Makardah Road, P.O. Kadamtala, P.S. Bantra, Dist. Howrah, Pin-711 101. 4. Smt. Iva Patra W/o Joydeb Patra, 13/5, Ramakanata Bose Street, Kolkata -700 003. 5. Smt. Baijyonti Mallick W/o Sri Ramesh Mallick, 19, Chetal Central Road, Kolkata - 700 027. 6. Smt. Marry Ghosh W/o Sri Rashbehari Ghosh, 35, Kalipada Mukherjee Road, Kolkata -700 019. 7. Smt. Shelly Ghosh W/o Sri Subodh Kumar Ghosh, 198/1, Rashbehari Avenue, Kolkata -700 019. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE KALIDAS MUKHERJEE PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Appellant: Mr. Rajarshi Datta , Advocate For the Respondent: Mr. Sudhansu Sekhar Kamlay, Advocate ORDER
29/03/16 HON'BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT This Appeal is directed against the judgment and order passed by Learned District Forum, Howrah in CC 380 of 2013 allowing the complaint case and directing the OP No.8 to refund the sum of Rs.16,30,000/- to the Complainant within 30 days from the date of order with interest @ 9% p.a. since 29/04/09 till realisation failing which the amount shall carry interest @ 15% p.a. till full recovery. The OP No.1 has been directed to pay a sum of Rs.1 lakh to the Complainant for causing mental pain and prolonged harassment and to pay Rs.5,000/- as litigation cost.
The case of the Complainant/Respondent, in short, is that she entered into an agreement with the OPs on 27/04/09 for the purchase of flat for a consideration of Rs.18 lakh out of which she paid Rs.16,30,000/-. The construction work was not completed and the possession was not delivered. Under such circumstances, the complaint was filed before the Learned District Forum praying for direction upon the OPs to deliver possession of the flat and to execute and register the deed of conveyance in respect of the scheduled flat in favour of the Complainant, to complete the unfinished work, to pay compensation of Rs.2 lakh and to pay litigation cost of Rs.50,000/-.
The Learned Counsel for the Appellant has submitted that the Learned District Forum held that there was pendency of Title Suit and Writ Petition and, as such, there was legal bar in the matter of execution and registration. It is submitted that land owner was the Writ Petitioner before the Hon'ble High Court, Calcutta and the interim order was passed in the Writ Petition on 30/09/13. It is contended that both the Writ Petition and the Title Suit before the Civil Court are still pending. The Learned Counsel has referred to the decisions reported in (2016) 1 WBLR (CPSC) 379 [Sri Shamik Raha vs. Miss Arati Chakraboarti & Ors.]; 1976 (2) CLJ 231 [Kassem Ali Tarafdar vs. State of West Bengal & Ors.]; 2014 (4) CPR 357 (NC) [M/s Novous Abasan Pvt. Ltd. vs. Dakshineswar Saptarshi Welfare Society & Anr.]; II (2006) CPJ 200 (NC) [Dinesh Premji Shah vs. S. N. Pathak].
The Learned Counsel for the Respondent/Complainant has submitted that the total consideration was Rs.18 lakh and the Complainant paid Rs.16,30,000/-. It is submitted that possession has not been delivered and the OP introduced a new story about T.S. No.128 of 1987 filed by one of the owners against the other owners. It is submitted that the Developer did not disclose about pendency of the Civil Suit.
We have heard the submission made by both sides and perused the papers on record. It has been held in the case of Dinesh Premji Shah vs. S. N. Pathak (supra) that in cases where there is injunction by the Civil Court against builder restraining him from entering suit premises, in such circumstances, order of State Commission directing possession cannot be enforced. In the case of M/s Novous Abasan Pvt. Ltd. vs. Dakshineswar Saptarshi Welfare Society & Anr. (supra) it has been held that if a Civil Suit as well as the complaint before the State Commission are allowed to proceed simultaneously, there is likelihood of conflicting findings of fact being rendered by the two Fora and considering that findings of the Civil Court rendered in Civil Suit between the parties would be binding on the State Commission, the complaint before the State Commission should remain stayed during pendency of Civil Suit.
In the instant case it appears from the materials on record that on 30/09/13 in connection with WP 24128 (W) of 2013 [Kallol Kumar Ghosh @ Bhaduri & Ors. vs. Howrah Municipal Corporation & Ors.] an order was passed by the Hon'ble High Court, Calcutta directing that status quo with regard to the impugned construction as on that day would be maintained and the Petitioners were also restrained from creating any third party interest in the said premises and/or from inducting any tenant and/or parting with any possession of the disputed property or any part thereof until further order. The Petitioners were also restrained from raising any further construction in the said premises until further order. The petition of complaint was filed before the Learned District Forum on 31/10/13. The agreement was entered into by and between the parties on 27/04/09. In the Memo of Appeal at point no.2 it has been stated that T.S. No.128 of 1987 was pending before Learned Civil Judge (S/D), Howrah and the Appellant No.1/OP No.8 who was not a party to the said suit suffered the order of injunction. Having regard to the circumstances aforesaid and relying on the decisions mentioned above, we are of the considered view that the complaint case before the Learned District Forum should remain stayed till the disposal of the T.S. No.128 of 1987 and W.P. No.24128 (W) of 2013.
The Appeal is allowed. We set aside the impugned judgment and order. CC 380 of 2013 pending before Learned District Forum, Howrah will remain stayed till the decision of the aforesaid cases bearing T.S. No.128 of 1987 and W.P. No.24128 (W) of 2013. [HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER