West Bengal

South 24 Parganas

CC/251/2014

SRI AJIT CHANDRA BISWAS, S/O. Late Gopal Chandra Biswas. - Complainant(s)

Versus

1. M/S. THE RAHUL, a partner ship Firm. - Opp.Party(s)

Suvendu Das.

26 Mar 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24-PARGANAS, ALIPORE, KOLKATA – 700 027

                                                       C.C. Case No.___251_____OF_____2014________

Date of Filing :3.6.2014                                                                  Date of Passing Judgement: _26.3.2015

Present                                :               President       :   Udayan Mukhopadhyay

                                                Member(s)    :   Dr.(Mrs.) Shibani Chakraborty

Complainant                                      :  Sri Ajit Chandra Biswas ,s/o late Gopal Chandra Biswas of 25/6, Bhattacharjya Para Road, Kolkata – 63.

                                                                                                                -Versus-

O.P/O.P(s)                                          : 1. M/s The Rahul, of 28, K.K. Roy Chowdhury Road, P.S. Thakurpukur, Kol- 8.

                                                                2.     Sri Ashok Kumar Roy,s/o late Himangshu Kumar Roy of 6/2A, Roy Bahadur Road, P.S. Behala, Kolkata – 34.

                                                                3.     Smt. Munmun Roy Chowdhury, w/o Sri Milan Roy Chowdhury of 30, K.K. Roy Chowdhury Road, P.S. Thakurpukur, Kolkata – 8.

                                                                4.     Smt. Shila Roy Chowdhury,w/o Gora Roy Chowdhury of 28, K.K. Roy Chowdhury Road, P.S. Thakurpukur, Kolkata – 8 .

                                                                5.  Sri Smiya Kumar Sinha of 13A, D.H. Road, P.S. Thakurpukur, Kol-8.

                                                                6.  Mitrajit Basu Mallick

                                                                7.    Jayasree Ghosh,

                                                                Both of 123/4/1, Diamond Harbour Road (East), Purbapara Barisha, Kolkata-63.

                                                                8.     Chandita Mukherjee, 79/4, Sashi Bhushan Mukherjee Road, Kol-8.

                                                                9.     Debasish Das of B-33, Shivali Apartment, Shanti Park , Meera Road(East), Room no.504, Mumbai 400107.

                                                                10.     Dipsikha Das B-33, Shivali Apartment, Shanti Park, Meera Road(East), Room no.504, Mumbai 400107.

                                                                11.   Sri Jitandra Sinha 14A, D.H. Road, Barisha, Kolkata -8.

                                                                12.     Sri Jyotirmoy Sinha, 14A, D.H. Road, Kolkata – 8.

                                                                13. Smt. Krishna Ghosh, 16, Panchanantala Road, Paschim Putiary, Kol-41.

                                                                14.    Smt. Kumkum Das, 14A, D.H. Road, Barisha, Kolkata – 8.

                                                                                                JUDGEMENT

 

 

 

 

Sri Udayan Mukhopadhyay, President

This is an application under section 12 of the C.P Act filed by the complainant on the ground that they are carrying on  business in a pacca roadside east side shop room which is only the source of earning of complainant’s livelihood to maintain his family on the ground floor at premises no. 13A, Diamond Harbour Road,Kolkata – 8 under KMC Ward no. 12 measuring 183 sq.ft more or less described in schedule B hereinabove referred to schedule shop room which is the subject matter of dispute. It has claimed that the complainant was originally a tenant in respect of the schedule shop room before the construction and he was inducted there by the then owners and landlords Amiya Kumar Sinha and others. It has further stated that the O.P-1 is a partnership firm having its registered office at 28, K.K. Roy Chowdhury Road, Kolkata – 8 who are O.P nos. 2 ,3 and 4 partners and O.P-1 is a Firm. It has further stated that on 22.5.2001 O.P nos. 2,3 and 4 entered into a development agreement with the owners and landlords to develop the property by raising construction G+4. The O.P also entered into an agreement with the complainant on 22.5.2001 for vacating the schedule shop room and shifting his business therefrom temporarily leaving six ft on the front road side to keep the business continue during the period of reconstruction thereon and to keep his business materials on a room in the ground floor of the back side construction on the specific condition that the possession of the schedule shop room after completion of reconstruction would be delivered to the complainant and execute and register the title deed in respect of the schedule shop room in favour of the complainant at his cost.

But ultimately the O.Ps refused and denied to execute and register the title deed in respect of the schedule shop room which falls into their developer’s allocation according to the terms and conditions of the said development agreement. Inspite of sending lawyer’s notice on 1.6.2012 the O.P 2 to 4 did not take any steps  and hence the case with a direction to the O.P nos. 2,3 and 4 who are the partners of O.P-1 to execute and register the deed of conveyance in respect of the schedule shop room in favour of the complainant and to pay compensation for mental suffering to the tune of Rs.50,000/- and litigation cost of Rs.10,000/-.

The O.P nos. 1,3 and 4 are contesting the case by filing written version jointly and has denied all the allegations leveled against them . 

It is the positive case of the answering O.Ps that in view of the fact when plaintiff was willing to vacate the suit premises immediately on such understanding , the defendant -1 also made an offer to enter into an unregistered agreement with the complainant which is in the nature of a memorandum of understanding and not at all a service agreement of any sort. Moreover, by dint of such agreement the defendant no.1 Firm did not render any form of service nor the said agreement was entered by the defendant no.1 Firm in furtherance of any trade practice and neither any consideration flowed from the complainant. Apart from that by dint of such unregistered agreement complainant cannot have any right, title and interest or locus standi to institute the instant case . It has claimed that in the said agreement it was specifically written that the partners of O.P-1 would execute the title deed in favour of the complainant on the condition that the complainant would bear all costs and expenses of such execution and registration of the same . It has stated that soon after the construction was completed the O.P-1 and its partners put the complainant in possession of the shop room allocated to him and also after delivery of possession approached the complainant to get the title deed executed in his favour at his own cost but the complainant preferred the same for paucity of fund . As such complainant himself is liable for the stamp duty and registration fees to execute the title deed at the relevant point of time and suddenly after long lapse of 13 years complainant has arisen from a deep slumber to harass the defendant no.1 and its partners which is not a consumer dispute. So, the same should be dismissed in lemini with cost.

O.P-6 is contesting the case by filing written version and has denied all the allegations leveled against this O.P.

It is the positive case of the O.P-6 that O.P nos. 1 to 4 has full right to enter into the agreement with the intending purchasers for transferring their allocation and in the instant case developer entered into an agreement with the complainant for transferring their portion or allocation to the complainant and they have to discharge the duties and liabilities to that effect. So, O.P-6 and its legal heirs who are impleaded as party strongly claimed that they have no knowledge and extreme mental pain and agony of the complainant by not getting the deed of conveyance since the said portion is a developer’s allocation. So, complainant is not entitled to get any right firstly from o.P-6 or his legal heiris and hence prays for dismissal of the case.

Points for decision in this case is whether the O.P-1 to 4 has acted any deficiency in service or not.

                                                                                                Decision with reasons

Admittedly complainant is in possession . So, there is no dispute that there was an agreement or memorandum of agreement in between the complainant and O.P nos. 1 and its partners ,the O.P nos. 1 to 4. It is the case of the complainant that it was decided that shop room will be given after construction in favour of the complainant at his cost but from the written version and trend of the case one thing is clear that due to non-arranging fund complainant was unable to arrange the stamp duty and registration fees for which delay was made  and when sufficient time was elapsed , complainant has no other alternative but to file this case so that proper redressal may be achieved. This circumstances clearly suggest that when complainant filed this application before this Forum  that if the O.ps execute the deed of conveyance in favour of the complainant, then the complainant has no claim about cost and compensation. Thus we hold that the complainant has realized that due to his fault the deed of conveyance was not registered. Apart from that, when O.P nos. 1 and its partners in good faith and in good business policy put in possession ,then definitely they never denied registration when it is a matter of few hours and at the cost of the complainant .

With that observation , it is

                                                                                Ordered

That the application under section 12 of the C.P Act is allowed against the contesting O.Ps 1,3 to 4 and O.P-6 and its legal heirs and exparte against the rest.

All the O.Ps are directed to execute and register the deed of conveyance in favor of the complainant in respect of B schedule property at the cost of the complainant . It may be mentioned here that if the landlord/co-owners already given registered power to sell the property, then only O.P no.1 and its partners O.P 2 to 4 will execute and register the deed of conveyance in favor of the complainant within 45 days from the date of this order, failing which, complainant is at liberty to execute the same through the machinery of this Forum

Since complainant does not like cost and compensation, we pass no order in the said head.

Thus the case is disposed of.

Let a plain copy of this order be served upon the parties free of cost.

 

                                                                                                                Member                                              President

Dictated and corrected by me

 

                                President

 

 

 

The judgement in separate sheet is ready and is delivered in open Forum. As it is

                Ordered

That the application under section 12 of the C.P Act is allowed against the contesting O.Ps 1,3 to 4 and O.P-6 and its legal heirs and exparte against the rest.

All the O.Ps are directed to execute and register the deed of conveyance in favor of the complainant in respect of B schedule property at the cost of the complainant . It may be mentioned here that if the landlord/co-owners already given registered power to sell the property, then only O.P no.1 and its partners O.P 2 to 4 will execute and register the deed of conveyance in favor of the complainant within 45 days from the date of this order, failing which, complainant is at liberty to execute the same through the machinery of this Forum

Since complainant does not like cost and compensation, we pass no order in the said head.

Thus the case is disposed of.

Let a plain copy of this order be served upon the parties free of cost.

 

 

                                                                                                                Member                                              President