DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,

 KOLKATA-700 0144

      C.C. CASE NO. __248_ _ OF ___2015

DATE OF FILING :_1.6.2015         DATE OF PASSING JUDGEMENT:  _3.8.2018

Present                 :   President       :   Ananta Kumar Kapri

                                 Member(s)    :    Subrata Sarker 

COMPLAINANT   :             1. Jaya Das (Dey), wife of Rahul Das of 25A, Raja Rammohan Roy Road, P.S Haridevpur, Kolkata – 8.

                                   2.   Rahul Das, son of Provash Das of 25A, Raja Rammohan Roy Road, P.S Haridevpur, Kolkata – 8.

•  VERSUS  -

O.P/O.Ps                    : 1. M/s Laxmi Construction, at 59/1, Santosh Roy Road, James Long Crossing, Sakherbazar, P.S Haridevpur, Kolkata – 8.

                                   2.   Raju Guchhait (Partner) ,son of Gurupada Guchhait , Kalua Madhya Pal Para, P.S Haridevpur, Kolkata – 104.

                                   3.    Gurupada Guchhait (Partner), s/o late Natyabar Guchhait, Kalua Madhya Pal Para, P.S Haridevpur, Kolkata – 104.                                                                                   

_______________________________________________________________________

                                                J  U  D  G  M  E  N  T

Sri Ananta Kumar  Kapri, President

              The facts leading to the filing of the instant case by the complainant may be epitomized as follows.

               The complainants are husband and wife. O.P nos. 1,2 and 3 are developers. Two Sale Agreements dated 19.10.2012 were executed by the developers in favour of the complainants. One Sale Agreement was executed in favour of Jaya Das , complainant no.1 in respect of a residential flat measuring 1400 sq.ft and another sale agreement also dated 19.10.2012 was executed in favour of both the complainants in respect of a covered space measuring 630 sq.ft on the ground floor of the same building. Total consideration price of Rs.9 lac was paid by the complainants to the developers. Developers promised to deliver possession of the aforesaid flat and covered space within April 2014. But possession has not been delivered to the complainants by the developers and, therefore, the complainants have filed the instant case, praying for delivery of possession , payment of compensation etc. Hence, this case.

               Written version of the statement is filed by the O.P-2 on behalf of himself and other O.Ps, wherein, it is contended inter alia that they executed two sale agreements dated 19.10.2012 as alleged by the complainants and thereby agreed to sell a shop room and a residential flat on the ground floor to the complainants for a total consideration price of Rs.9 lacs. The complainants paid only Rs.90,000/- out of the total consideration price. No other payment has been made by the complainants. The complainants  have taken a false plea that the entire consideration price is paid by them to the developers . All the money receipts filed herein by the complainants are false, frivolous and not valid. The possession of the flat can never be delivered to the complainants, nor can a sale deed be executed and registered in their favour unless the total consideration price is paid. There is no deficiency in service on their part and ,therefore, the complaint should be dismissed in limini.

              Upon the averments of the parties, the following points are formulated for consideration.

POINT FOR DETERMINATION

1. Is the case maintainable in Law?
2. Are  the O.Ps guilty of deficiency in service as alleged by the complainants?
3. are the complainants entitled to get relief or reliefs as prayed for ?

EVIDENCE ON AFFIDAVIT

                 Evidence on affidavit is filed by the complainant  and the O.P both. Questionnaire, reply and BNA filed herein are kept in the record after consideration. 

DECISION WITH REASONS

Point no.1  :

                There is no provision in Consumer Protection Act, 1986 for filing a joint complaint, although there is a provision under Section 12(1)(c ) of the C.P Act, 1986 for filing representative complaint.

                 A perusal of the complaint filed reveals that the complaint is bad for misjoinder of causes of action. Two Sale Agreements both dated 19.10.2012 are subject matter of this case. One Sale agreement stands executed in favour of Jaya Das i.e complainant no.1 in respect of a flat measuring 1400 sq.ft. and another sale agreement lies in favour of both the complainants Jaya Das and Rahul Das in respect of a covered space measuring 630 sq.ft on the ground floor of the same building. So, it is found that there are two sale agreements in this case. The properties of the sale agreements are also different and, therefore, the causes of action is also different. So, two causes of action cannot be clubbed together and this being so, this case appears to be bad for misjoinder of causes of action. Such misjoinder of causes of action is not maintainable in Law and the complaint, therefore,  deserves to be dismissed.               

                Point no.1 is thus primarily answered against the complainant.

 Point no.2 & 3  :

                It is to be seen now ,how far the complainants have been able to establish deficiency in service on the part of the O.Ps. It is the case of the complainants that they have paid the total consideration price to the O.Ps and  to prove the payment of such consideration price , they have filed some money receipts. Receipt of consideration price by the O.Ps has been strongly denied by them. According to the version of the O.Ps, they did not receive any payment from the complainants except Rs.90,000/- which was paid to them by the complainants at the time of execution of sale agreement dated 19.10.2012. Copies of money receipts have been filed by the complainants herein. On perusal of the copies of money receipts ,it is found that those receipts are issued not by the Firm of O.P nos. 2 and 3. The Firm of O.P nos. 2 and 3 is named “M/s Laxmi Construction” , but the money receipts are seen to have been issued by one “G.R.S.V Projects” . The address of O.P no.1 Firm and address of G.R.S.V Project are also totally different. All the money receipts are seen to have been issued by G.R.S.V Projects and not by the Firm of O.P nos. 2 and 3. Regards being had to all these money receipts , we do never feel any kind of hesitation to say that the complainants have failed to substantiate that they paid the total consideration price of Rs.9 lacs  to the developers i.e O.P nos. 1,2 and 3. If the consideration price is not paid by the complainants to the developers, the complainants are not entitled to get relief or reliefs as prayed for in terms of the provisions of the agreements. The complaint, therefore, deserves to be dismissed on merits in this regard also .

              In the result, the case fails.

               Hence,

ORDERED

             That the complaint case be and the same is dismissed on contest against the OP.P, but without any cost.

         Let a free copy of this order be given to the parties concerned at once.   

                                                                                                                   President

I / We agree

                                                                             Member     

Dictated and corrected by me

                           President