West Bengal

South 24 Parganas

CC/424/2015

Sri Naba Ranjan Mondal, S/O Late Gurupada Mondal. - Complainant(s)

Versus

1. Smt. Ashalata Sardar, W/O Late Sundhanya Sardar. - Opp.Party(s)

Debi Das Modak.

23 Aug 2016

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _424_ OF ___2015_

 

DATE OF FILING : 21.9.2015                     DATE OF PASSING JUDGEMENT:  23/8/16

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu 

                                                                             

COMPLAINANT             :  Sri Naba Ranjan Mondal,s/o late Gurupada Mondal of Sadhupur, P.O Jahar Colony, P.S. Gosaba, Dist. South 24-Parganas now at Champahati Charch Road, P.S. Baruipur, South 24-Parganas.

 

-VERSUS  -

 

O.P/O.Ps                            :  1. Smt. Ashalata Sardar,w/o late Sudhanya Sardar of Malipukuria, P.O & P.S Sonarpur, South 24-Parganas Pin-743369 and her office at 8 No. Hare Street, Telephone House Ao/cc/Hq, (BSNL Cashg Collection Selection), Kol-1. 

                                              2.    Sri Sub hendu Bikash Sardar.

                                              3.    Animesh Sardar

                                              All sons of Sudhanya Sardar of Malipukuria, P.O & P.S Sonarpur, South  24-Parganas, Pin-743369.

Proforma O.P                     :    4.    Public Information Officer, BSNL, Telephone Bhaban, 3^rd   Floor, B.B.D Bag Road, Kolkata – 700 001.

 

_______________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President

The short case of the complainant is that he entered into an agreement for purchasing a land measuring 1 Katha 7 chittak 22 sq.ft and building measuring 650 sq.ft standing thereon which was constructed by the O.Ps . It has further stated that the complainant on the date of agreement on 15.1.2014 paid Rs. 5 lacs out of total consideration of Rs.13,50,000/- . Thereafter complainant made further agreement on 16.4.2015 for the same schedule property and O.Ps already collected further Rs.1,15,000/- and ultimately possession of the said land and building was given to the complainant without making available all the amenities as were to be given as per agreement. It has stated that Sudhanya Kumar Sardar was the absolute owner of the land measuring 1 katha 7chittak 22 sq.ft in respect of Mouza Malipukuria, J.L. no.24 RS Khatian no.289 RS Dag no.38  and started construction but he died leaving one wife namely Ashalata Sardar and two sons namely Subhendu Sardar and Animesh Sardar and they are O.P nos. 1 to 3 who are the absolute owners of the suit property. It has claimed that out of the total consideration of Rs.13,50,000/- a sum of Rs.6,15,000/- already paid through cash and cheque and balance consideration money i.e. Rs.7,35,000/- complainant undertook to pay before execution and registration of the deed of conveyance in his favour. It has claimed that complainant is ready and wiling to give rest amount but O.Ps did not pay any heed to the request of the complainant. Hence, this case  praying for direction upon the O.Ps to execute and register the deed of conveyance in respect of the suit property , to pay compensation of Rs. 1 lac for causing mental agony and suffering, cost of Rs.50,000/- etc.

            The O.P nos. 1,2 and 3 filed written version and has stated that the statements made in para 1 is partly true to the knowledge of your petitioner as it is mentioned in the petition that the complainant was given the ultimate possession fo the said land and building without all the amenities which is absolutely false. The O.Ps have denied all the allegations leveled against them. It is the contention of the O.Ps that if any dispute arises the same should be referred to the Arbitrator Mr. Tapan Kumar Manna, Advocate who will settle the dispute. Accordingly O.ps tied to solve the matter through the Arbitrator as per agreement but the complainant showed no interest ,for which this case is filed only to squeeze money from the substituted O.Ps. It has claimed that these O.Ps are law abiding citizen and wants to proceed the agreement after getting the original title deed or as per agreement the entire amount will be refunded to the complainant . Hence, the O.Ps pray for rejection of the petition complaint.

            The O.P-4 BSNL authority was made proforma O.P who has filed one information that the mortgage deed vide book no.1 CD Volume no.1901-2015 page from 77615 to 77631 being no.190106575  for the year 2015 , the original Sale Deed and other documents lying deposited in connection with the grant of House Building Advance are released herewith and receipt of which may kindly be acknowledged please.

            It appears from the status report that Ashalata Sardar ,O.P-1 already received the original sale deed  as stated above as per information of Sub Divisional Engineer (Establishment) for Chief General Manager, Calcutta Telephones  as per their information conveyed to the O.P-1 vide Memo no.EAL-2005/1257/98 dated 21.09.2015 .

            Thus we find that BSNL authority has already informed this Bench. So, it should be mentioned here that there is no consumer relationship with the BSNL authority but the BSNL authority was made proforma O.P in order to satisfy the consumer comlainant regarding the whereabouts of the title deed.

            Points for decision in this case is whether there is any deficiency in service on the part of the O.Ps or not.

                                                                        Decision with reasons

            Admittedly O.Ps received Rs.6,15,000/- from the complainant out of total consideration money of Rs.13,50,000/- and admittedly deed of conveyance has not yet been registered. But the fact remains that complainant also did not pay the balance consideration money of Rs.7,35,000/- ,that is why we find that complainant also has not complied his part of performance ,that is why deed of conveyance was not executed.

            It cannot be said that there is any laches from the O.Ps even after tendering the balance consideration money  the O.Ps  failed to execute the deed of conveyance. Moreover, O.P already handed over possession. So, O.Ps already partly complied the agreement. But the complainant did not comply the same by paying the remaining amount and probably the sale deed was mortgaged with the BSNL authority for which complainant after possession was not ready to proceed further with the registration matter and withheld the remaining payment. It is appearing from the answer no. 9 of O.P nos. 1 to 3 that O.Ps repeatedly requested the complainant but complainant continued harassing the O.Ps for registration and also filed a criminal case against the O.Ps under section 465,466,468,471,420 and 34 of Cr.P.C.

            So,  at this stage we find that O.Ps being nos. 1 to 3 should be directed to execute and register the deed of conveyance in favour of the complainant after receiving the balance consideration money of Rs.7,35,000/- and we find that question of imposing compensation does not arise at all since complainant is in possession without paying full consideration money. So, how the complainant will prove that he has been harassed by the hand of the O.P nos. 1 to 3 , on the contrary the O.Ps are suffering loss by not getting Rs.7,35,000/- in time.

            Apart from that it should be mentioned here that arbitration clause or appointment of Arbitrator is not suffice to say that this case is barred. It is true that if the award is passed by the Arbitrator, then this Consumer Court has no jurisdiction to pass any order but fact remains that no award was passed.

            After going through the materials on record we find that it is a sale in simpliciter and Civil Court is the just authority to solve the dispute when the transaction is sale in simpliciter only and there is no service at all. It is a case of non-performing the contract out of an exclusive sale transaction.

            With that observation when case has been admitted and O.P did not raise any question in this regard we find that without further delay a simple order should be passed for registration of the deed of conveyance subject to payment of Rs.7,35,000/- to the O.P nos.1,2 and 3.

            Accordingly, it is

                                                                        Ordered

That the application under section 12 of the C.P Act, 1986 is allowed on contest.

Complainant is directed to deposit Rs.7,35,000/- through Demand Draft to the office of this Forum within 15 days from the date of this order and O.P1,2 and 3  are directed to proceed for execution and registration of the deed of conveyance in terms of the agreement in favour of the complainant  thereafter within 15 days. The total episode should be completed within 30 days from the date of this order.

Any departure of the Parties i.e. complainant and the O.P nos. 1,2 and 3 will act further deficiency in service and in that event the said parties have to deposit Rs.5000/- towards the penalty and that amount will be deposited in the Consumer Legal Aid Account.

The Proforma O.P-4 BSNL authority has no obligation and they have already complied by sending the status report of the title deed in dispute. So, case is dismissed against Proforma O.P-4.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.

 

                                                                        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, 1986 is allowed on contest.

Complainant is directed to deposit Rs.7,35,000/- through Demand Draft to the office of this Forum within 15 days from the date of this order and O.P1,2 and 3  are directed to proceed for execution and registration of the deed of conveyance in terms of the agreement in favour of the complainant  thereafter within 15 days. The total episode should be completed within 30 days from the date of this order.

Any departure of the Parties i.e. complainant and the O.P nos. 1,2 and 3 will act further deficiency in service and in that event the said parties have to deposit Rs.5000/- towards the penalty and that amount will be deposited in the Consumer Legal Aid Account.

The Proforma O.P-4 BSNL authority has no obligation and they have already complied by sending the status report of the title deed in dispute. So, case is dismissed against Proforma O.P-4.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.

 

                                                                        Member                                               President