West Bengal

South 24 Parganas

CC/419/2015

1.Sri Sanjay Das Neogi, S/O Sri Sukamal Das Neogi. - Complainant(s)

Versus

1. Smt. Chayanika Paul, W/O Late Aloke Paul. - Opp.Party(s)

Haridas Ghosh.

02 Aug 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

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

 

      C.C. CASE NO. _419_ OF ___2015_

 

DATE OF FILING : 9.2.2015                       DATE OF PASSING JUDGEMENT:  09/08/2017

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :   Subrata Sarker &  Jhunu Prasad   

                                                                             

COMPLAINANT        :    1. Sri Sanjoy Das Neogi, son of Sri Sukamal Das Neogi

                                           2.  Smt. Mallika Das Neogi, wife of Sanjoy Das Neogi

                                           Both are owners of flat no.3A, 10L, Baderaipur KMC Ward no.96, Borough-X, P.S Jadavpur, Kolkata -32.

 

•  VERSUS  -

 

O.P/O.Ps                            :  1. Smt. Chayanika Paul, wife of late Aloke Paul of 11, Baderaipur Road, P.S Jadavpur, Kolkata – 32.

`                                             2.    M/s Ganapati Construction of 771/22, Raja S.C Mallick Road, P.S Jadavpur, Kolkata -92, represetnted by its partners (i) Pinaki Sen,son of late S.K.Sen, (ii)  Goutam Dutta, son of late M.B Dutta.

 

_______________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Udayan Mukhopadhyay, President

This application under section 12 of the C.P Act, 1986 has been filed by the complainant on the ground that The O.P-1 was the landlord and O.p-2 is the developer. He made an agreement for sale on 12.6.2009 and on that basis theO.p-2 by a registered deed of conveyance dated 13,3,2012 sold ,transferred and handed over the peaceful possession of the third floor flat measuring  850 sq.ft of premises no.10-L, Baderaipur Road, KMC Ward no.96 , Borough-X, Dist. South 24-Parganas, P.S Jadavpur, Kolkata – 32 along with a demarcated garage no.5, measuring 135 sq.ft on the ground floor and both the flat and garage no.5 delineated in the attached Map with the sale deed which was recorded in Book No.1, Volume no.4, Pages 3049 to 3078  Deed no.855 in the year 2012 ,a copy of which ia filed in annexure A.

The main allegation of the complainant is that in connivance with the O.P-1, O.P-1 being a landlord along with the local P.S regularly coming and disturbing the petitioners and the old father of the pertitioner-1 with threatening attitude that they will take forcible possession by breaking the padlock of the petitioner and on 10.9.2015 at about 6 p.m  O.P-1 along with Suman Biswas, S.I of Jadavpur P.S  forcibly  entered into the premises and as per instruction of O.P-1 broken the padlocks of the garage no.5 of the said premises and put a fresh lock with an order attitude stating garage no.5 be used by the petitioners and O.P-1 by misusing your honour’s order dated 27.8.2015 , for which the father of the petitioner no.1 became seriously ill and became humiliated and suffering from various ailments. Hence, this case for restoring absolute possession of the garage no.5 with a prayer for compensation of Rs.1 lac and litigation cost of Rs10,000/-.

The O.P-1 is contesting the case by filing written version and denied all the allegations leveled against him. It is the positive case of theO.P-1 that he has filed a Title Suit for cancellation of Deed dated 13.3.2012 before the 1^st Court of Civil Judge, Jr. Division at Alipore being T.S no.235 of2014 and the said case is still pending. It has claimed that O.P-1 got two car parking spaces in the ground floor by virtue of the order of the District Consumer Disputes Redressal Forum through the help of the police in connection with E.A no.218 of 2013 . It has claimed that building has not yet been constructed as per sanctioned plan and proceedings for violation of  the sanctioned plan is pending before the Building Department for which KMC has not yet issued Completion Certificate. It has claimed that there is existence of car parking space no.5 in the alleged sanctioned plan but there was no existence of car parking space no. 1 to 5 at the ground floor of the said premises. But there is only two parking spaces which are under possession ofO.P-1 in views of the order of the Ld. CDRF in E.A no.218 of 2013. It has claimed that complainant has suppressed the cancellation of the deed in the name of the complainants which is pending before the Ld. Civil Court and complainant has no right to file any application before the Consumer Court which is not maintainable since there is no deficiency of service and not guilty for doing unfair trade practice. It has claimed that after the alleged deed of conveyance complainant has come to the Court after lapse of three years and on other grounds the O.P-1 prays for dismissal of the case.

The O.P-2 also filed written version and has denied all the allegations leveled against them and submitted lot of things which are not connected  with the issue of this case regarding supplementary agreement or subsequent agreement whatsoever. It has claimed that this answering O.P-2 in terms of the supplementary agreement sold out flat no.3A on the third floor and garage space being no.5 to the complainant and also executed deed of conveyance in favour of the complainant. It has claimed that O.P-1 being the land owners due to some malafide intention has been trying to take forcible possession of the garage space illegally and prays that the case is maintainable.  It has claimed that complainant’s case against the O.P-2 is malafide and without any basis. It has claimed that all the allegations leveled by the complainant against the O.P-2 is hereby denied except specifically admitted herein. It has claimed that O.P-2 did not commit any deficiency of service and unfair trade practice and prays for dismissal of the complaint case against O.P-2.

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

                                                Decision with reasons

Admittedly the deed of conveyance was executed and registered on 13.3.2012 in terms of the agreement dated 12.6.2009 and complainant also got possession the flat and garage. But on 16.9.2016 this application is filed for restoration of possession of the garage no.5 with a prayer for compensation and cost.

It should be born in mind  that the Consumer Court cannot attach the jurisdiction of the Civil Court and it is the Civil Court who can restore the possession of the garage of the complainant ,since there is no deficiency of service and unfair trade practice on the part of the O.Ps. It is not also connected with the agreement for sale dated 12.6.2009. So, complainant has to approach before the Civil Court for a suit for recovery of possession of garage no.5 because if the order for recovery of possession is required to be passed, then title of the case of the complainant should be affirmed to which Consumer Court has no power to declare right, title and interest and possession for which Civil Court is the just authority to decide the same in the eye of law after taking evidence from both sides and the proceedings before the Consumer Court is a summary trial and it is not possible to solve the dispute.

In light of the above observation it is ,

                                                                                    Ordered

That the application under section 12 of the C.P Act filed by the complainant is dismissed on contest against the O.Ps with a liberty to the complainant to approach before the Civil Court having its jurisdiction for recovery of possession, if they so desire. 

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 for expedite payment.  

 

Member                                               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 filed by the complainant is dismissed on contest against the O.Ps with a liberty to the complainant to approach before the Civil Court having its jurisdiction for recovery of possession, if they so desire. 

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 for expedite payment.  

 

Member                                               Member                                                                       President