DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,

 KOLKATA-700 0144

      C.C. CASE NO. _62_ OF ___2015

DATE OF FILING : 9.2.2015     DATE OF PASSING JUDGEMENT: 31.5.2018

Present                      :   President       :   Ananta Kumar Kapri

                                        Member(s)    :    Subrata Sarker  & Jhunu Prasad

COMPLAINANT        : Sri Rakesh Kumar Chowdhury, son of late Nathuni Prasad Chowdhury of 15/A, Ahiri Pukur 2^nd Lane, P.S Karaya, Kol-19

• VERSUS  -

O.P/O.Ps                         :   1. Pannalal Chowdhury

                                              2. Kartick Chowdhury

                                             Both sons of late Nathuni Prasad Chowdhury

                                              3.   Rashmuni Chowdhury, wife of late Nathuni Prasad

                                        Chowdhury

                                              4.  Nirmala Mondal, wife of Rajendra Nath Mondal

                                              5.  Ujjala Dey, wife of Nemai Chandra Dey

                                              6.  Bhupendra Nath Chakraborty, son of unknown

                                             All  1 to 6   are residing at 104/1B, Doctor Birendra Shekhar Basu Road, P.S Kasba, Kolkata – 39.

                                              7.   Gita Rani Chowdhury, wife of Sri Mahesh Chowdhury of 89/1, Golf Club Road, P.S Jadavpur, Kolkata – 33.

                                             8.   Sita Devi Rajak, wife of Shibnath Rajak of Bandal Para Road, Sarkarpur, Gopalpur, P.S Maheshtala, Kolkata- 143.

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                                                            J  U  D  G  M  E  N  T

Sri Ananta Kumar  Kapri, President

     The nub of the case , as it stands now after amendment of the complaint, is that O.P-1 is developer cum owner and O.P nos. 2,3,7 and 8 are owners of the subject flat succinctly described in second schedule to the amendment petition ,kept in the record.

    A Development Agreement was effectuated between the land owners and the developer on 25.1.2012. A General Power of Attorney was also executed by the land owners in favour of the said developer on that very date i.e 25.1.2012. Thereafter a Sale Agreement was executed on 8.5.2014 by and between the complainant and the developer and thereby the developer agreed to sell from his portion the subject flat for a total consideration price of Rs.10 lac. Entire consideration price was paid to the developer by the complainant. But the developer did not register the deed of conveyance in favour of the complainant ,nor did he deliver the possession of the flat to the complainant within 30.11.2014, as was agreed by him. O.P nos. 4,5 and 6 have been illegally occupying the subject flat. Now the complainant prays for registration of the deed of conveyance , delivery of possession of the flat and payment of compensation etc. Hence, the case.

     None of the O.Ps except O.P nos. 4,5 and 6 has filed  any written statement to contest herein. It is only O.P nos. 4,5 and 6 who have filed written version of their statement, wherein it is submitted that one Nathuni Prasad Chowdhury and his wife Rashmuni Chowdhury purchased the case premises no.104/1B, Dr. Birendra Shekhar Basu Road, Kolkata – 39 by a registered sale deed dated 24.8.2005. The said premises consisted of tiles shed, rooms and two asbestos shed rooms. The O.Ps were tenants in those rooms. After completion of construction of the building upon the case land, they were put in possession of the subject flat. Since March, 2014 Nathuni Prasad Chowdhury refused to take rent and ,therefore, rent was deposited by them before the Rent Controller, Alipore. After death of Nathuni Prasad Chowdhury his legal heirs i.e the complainant, the O.P nos. 1,2,3,7 and 8  asked him to quit and vacate the subject flat . But the O.Ps did not act according to their request. They have instituted three suits i.e T.S no.91 of 2015, T.S no. 92 of 2015, T.S no. 62 of 2015 before the 1^st Court of Civil Judge , Jr. Division at Alipore for declaration of their rights as tenants and for permanent injunction. The complainant is a co-owner of the case land and that he is residing in the building with other O.Ps. Mis appeal namely M.A no.67 of 2015, M.A no. 106 of 2015 and M.A no. 107 of 2015 have also been filed before the Ld. District Judge, Alipore and an ad interim order of injunction has also been passed by him. The agreement for sale dated 8.5.2014 ,which the complainant relies, is nothing but a fabricated and forged document.

     According to these O.Ps, they are not service providers of the complainant and, therefore, the instant case is not maintainable in law against them. The complainant has also filed suit for eviction against the instant O.Ps and those suits have been numbered as T.S 305 of 2015, T.S no. 294 of 2015 before the 1^st Civil Judge, Jr. Division at Alipore. The complainant ahs no cause of action against the O.Ps ; the case is a malafide one intended to harass the O.Ps and , therefore, the same deserves to be dismissed in limini with cost.  

     Upon the averments of the parties 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 complainant?
3. Is the complainant entitled to get the relief or reliefs as prayed for?

     EVIDENCE OF THE PARTIES

Evidences are led on affidavit by both the complainant and the O.P nos. 4,5 and 6. The same are kept in the record for consideration.

DECISION WITH REASONS

Point no.1,2 and 3 :-

On perusal of the record , it is found that the complainant has not come before the Court with clean hands. He appears to be a very tactful person. He has filed the instant case under section 12 of the C.P Act, 1986 and has made an attempt to give it a colour as if everyone will see it in open eye as a Consumer dispte, alleging deficiency in service. But actually it is not so. Actually it is a case for eviction of O.P nos. 4,5 and 6. This very fact has been kept carefully under carpet by the complainant and having kept this particular thing under carpet,he has filed the instant case in clandestine manner to procure the eviction of O.P nos. 4,5 and 6 from the case plot. Eviction suit is pending before the competent Civil Court between the parties. All these have been kept suppressed by the complainant. This court disposes of the cases before it by summary trial and it is not competent to dispose of any matter relating to eviction of any tenant. Regards being had to all these facts and circumstances which stands established on the materials on record , we are of the opinion that the instant case is not at all maintainable in Law.

The other two points i.e point nos. 2 and 3 need not be discussed any more in view of the decision taken earlier.

In the result, the case fails.

Hence,

                                                                               ORDERED

That the complaint case be and the same is dismissed on contest against O.P nos. 4,5 and 6 and exparte against rest of the O.Ps without cost.

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

                                     President

I / We agree

                           Member                                                             Member                                               

Dictated and corrected by me

                        President