State Consumer Disputes Redressal Commission
Smt. Renubala Shil vs Smt. Monika Das & Ors. on 25 July, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/410/2018 ( Date of Filing : 25 Apr 2018 ) (Arisen out of Order Dated 18/04/2018 in Case No. EA/99/2015 of District South 24 Parganas) 1. Smt. Renubala Shil W/o Lt. Subodh Chandra Shil, 104/E, Aswini Nagar Colony, P.S. Jadavpur, Kolkata - 700 040. ...........Appellant(s) Versus 1. Smt. Monika Das & Ors. D/o Lt. Kartick Chandra Das, Vidyasagar Sarani, North Reniya, P.O. - Bansdroni, P.S.- Regent Park, Kolkata -700 070. 2. M/s. Raj Infrastructure 4, Graham Road, P.S. Jadavpur, Kolkata -700 040. 3. Sri Arup Choudhury, partner, M/s. Raj Infrastructure 4, Graham Road, P.S. Jadavpur, Kolkata -700 040. 4. Sri Rajdeep Choudhury, partner, M/s. Raj Infrastructure 4, Graham Road, P.S. Jadavpur, Kolkata -700 040. ...........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. Sahabul Molla, Advocate For the Respondent: Gouranga Gupta Roy, Mousumi Chakraborty, Advocate Dated : 25 Jul 2019 Final Order / Judgement
HON'BLE JUSTICE ISHAN CHANDRA DAS, PRESIDENT This is an appeal under section 27A of the Consumer Protection Act against the order no. 30 dated 18-04-2018 passed by Ld. DCDRF, Baruipur in EA/99/2015. In the said order Ld. DCDRF while disposing of MA/52/2018 at the instance of the judgment debtor for appointment of an Advocate Commissioner to inspect the decretal flat and to bring the correct picture of it before Ld. Forum concerned, to issue warrant of arrest against Jdrs. no. 2 and 3, the proclaimed offender and directed the decree holder to take steps for obtaining possession and compliance by the Jdrs. no. 2 and 3.
A complaint case being CC/63/2015 was filed by one Smt. Manika Das, appellant herein, where she prayed for a direction upon the OPs no. 1 to 4 to deliver possession and to execute and register the deed of conveyance in the name of the complainant in respect of a flat measuring 310 sq. ft., super built up area, situated on the 2nd floor (front side of the building), being premises no. 104/E Aswini Nagar Colony, P.S. Jadavpur, to pay compensation of a sum of Rs. 1,50,000/- (Rupees one lakh fifty thousand) for mental agony and harassment and to deliver khas possession of the said flat, litigation cost of Rs. 40,000/- (Rupees forty thousand) and other consequential reliefs.
The complaint case was disposed of exparte by Ld. DCDRF by order dated 27-04-2015 where the complaint case was allowed. The OPs were directed to give possession of the flat measuring 310 sq. ft., to execute and register the deed of conveyance and directed to pay compensation of a sum of Rs. 50,000/- (Rupees fifty thousand) and other consequential reliefs.
In the petition of complaint the complainant prayed for a direction upon the OPs including the land owner, the OP no. 4, who is the appellant herein, for execution of the deed of conveyance and for delivery of possession of the flat. Ld. DCDRF while disposing of the said complaint case by order dated 27-04-2015 directed all the OPs to execute and register the deed of conveyance and to give possession of the flat in favour of the complainant with cost though Ld. DCDRF in the said order dated 27-04-2015 gave liberty to the complainant to get the deed executed in her favour through the machinery of the Forum and direction was given to the local Police Station for securing peaceful possession of the said flat. The record reveals that the OP no. 4 of CC/63/2015 being the land owner of the property over which the construction had been raised after ejectment suit, being ES/206/2017 against one Bela Sil, prayed for recovery of khas possession of the flat by evicting the defendant therefrom the premises at 104/E Aswini Nagar Colony, P.S. Jadavpur. Ld. Counsel for the respondent also pointed out with reference to a copy of the plaint, filed before Ld. Civil Judge, Junior Division, 1st Court at Alipur being TS/1848/2016, where she prayed for declaration that the other OPs/defendants did not have any right to transfer the entire newly constructed building in favour of a 3rd party by virtue of the development agreement and prayed for a decree for permanent injunction restraining the defendants from transferring allowing or encumbering any portion of the property in any manner whatsoever. It is submitted before us that the interlocutory matters including prayer for temporary injunction were disposed of by Ld. Civil Court but both the suits were not disposed of finally.
Now the fact remains that the complaint case (CC/633/2015) was disposed of exparte against the OPs, direction was given to them to execute and register a deed of conveyance in favour of the complainant/Dhr. and liberty was given to the complainant to get the deed executed in her favour through the machinery of the Forum if the OPs did not execute any such deed in her favour which has been achieved by her through the court process. Now in the execution proceeding being EA/99/2015 the Jdr./appellant is trying to frustrate the interest of the purchaser by creating a hurdle in the process of compliance of the direction given in EA/99/2015.
It is interesting to note that the judgment debtor/Smt. Renubala Sil, the OP no. 4 herein filed one ejectment suit being ES/206/2017, a title suit being TS/1441/2017 in claiming rights over the disputed flat and recovery of possession thereof by evicting the tenant, Bela Sil and created a camouflage to frustrate the interest of the bonafide purchaser of the flat. Since this is a dispute between the land owner, developer as well as the tenant involved in the suits, the complainant, being an outside purchaser cannot exercise her right by denying the right of the land owner, tenant or the developer and it is the Civil Court which is competent to decide the matter on proper scrutiny of the merits, involved herein and the Consumer Court being a creature of a statute for a limited purpose cannot decide the rights of the parties in a summary way. Accordingly we allow the appeal, set aside the order impugned and direct the parties to take shelter of the Civil court if they so desire. With this observation we dispose of the appeal. Parties do bear their respective costs of Appeal. [HON'BLE MR. JUSTICE ISHAN CHANDRA DAS] PRESIDENT [HON'BLE MRS. SAMIKSHA BHATTACHARYA] MEMBER [HON'BLE MR. SHYAMAL KUMAR GHOSH] MEMBER