West Bengal

South 24 Parganas

CC/44/2015

Sri Dulal Chandra Ghosh. S/O Late Kalipada Ghosh. - Complainant(s)

Versus

1. Smt. Ratna Roy,Widow of Late Sujit Roy, Proprietress of M/S. Jeet Construction. - Opp.Party(s)

13 Jul 2017

ORDER

 

                                     DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS ,

Amantran Bazar, Kulpi Road, Baruipur, Kolkata – 144.

C.C. CASE NO. __44___ OF ___2015____

DATE OF FILING : 22.1.2015_                                                 DATE OF PASSING JUDGEMENT:_13.07.2017.

Present                                :   President       :   Udayan Mukhopadhyay

                                                    Member(s)    :    Subrata Sarker   &   Jhunu Prasad

 

COMPLAINANT                                 :  Sri Dulal Chandra Ghosh, son of late Kalipada Ghosh of Boral now residing at 19, Subhas Pally, P.S Bansdroni, Kolkata – 84.

• VERSUS  -

 

O.P/O.Ps                                             :  1. Smt. Ratna Roy, widow of late Sujit Roy, Prop. ofM/s Jeet Construction , C-67, Gostatala New Scheme Kamdahari, Garia, P.S Bansdroni, Kolkata – 84.

                                                                2. Sri Satish Chandra Sarkar,s/o late Ugrakanta Sarkar.

                                                                3.  Sri Tulsi Das(Sil), son of late Krishna Mohan Das

                                                                Both of 19, Subhas Pally, P.S Regent Park, Kolkata -84.

_____________________________________________________________________________________

                                                                                J  U  D  G  E  M  E  N  T

Sri Udayan Mukhopadhyay, President

                This complaint is filed under section 12 of the C.P Act, 1986 on the ground that  O.P-1 is a Promoter and O.P nos. 2 and 3 are the land owners who entered into a development agreement with the O.P-1 . The O.P nos.2 and 3 also authorized theO.P-1as a Constituted Attorney. It is the further case of he complainant that husband ofO.P-1 during his lifetime entered into an agreement for sale with the complainant for a flat measuring more or less 635 sq.ft super built up area on the ground floor on the South East Portion of premises no. 19, Subhas poally, Garia, under Bansdroni P.S. It has further stated that by dint of that verbal agreement for sale the complainant paid entire consideration money to the O.P-1, the Xerox copies of receipts are annexed herewith. It has further stated that after accepting the full consideration money the O.Ps also handed over khas possession of the said flat and mutated his name in the KMC and his Assessee no. 31 111 25076412. Complainant is also enjoying electricity there at the said flat . But due to demise of Sujit Roy, the husband of O.P-1, the execution and registration of the deed of conveyance is pending ,although complainant is ready and willing and is always requesting them, but nothing was done. Hence, this case with a prayer for registration of the deed of conveyance in favour of the complainant, compensation of RFs.6 lacs and cost.

                The O.P nos. 2 and 3 the land owners are not contesting the case and the case is running in expart against them.

                The O.P-1 ,the developer is contesting the case by filing written version who is a wife of late Sujit Roy and has denied all the material allegations leveled against them. TheO.P-1 strongly claims that complainant never disclosed the date of alleged verbal agreement and total consideration money  and money receipts etc. She has claimed that signature in the money receipts are not the signatures of late Sujit Roy  which is manufactured and created by the complainant. The O.P clearly denied the allegations made in para 12 and 13 of the complaint, but in the past para has agreed that her husband entered into an agreement for sale for a flat and he had received Rs.1,50,000/- only for vacating the flat. It has claimed that possession of the complainant is as a licensee. Hence, the O.P prays for dismissal of the case.

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

                                                                                Decision with reasons

                Admitted position is that there is no agreement for sale . But circumstances clearly suggests that there was a verbal agreement with the complainant and husband of O.P-1 ,for which, the advocate’s letter dated7.9.2012 during the lifetime of Sujit Roy was sent to the complainant wherein it has been clearly mentioned that “On good faith upon you my said client inducted you as a licencee into the flat mentioned in the schedule hereinafter on condition that either you will pay entire consideration money ,which will be settled for the said flat , later on by way of negotiations with my said client and register the said flat in your name or you will vacate the said flat within three months on and from 22.7.2009 i.e taking possession of the said flat”.

                This document clearly suggest that complainant was inducted in the said flat as a licensee for which he has paid Rs.1,60,000/- ; firstly Rs.1,10,000/- on 8.7.2009 and thereafter Rs.50,000/- on 22.7.2009. But after the death of Sujit Roy, the said money receipt was tampered , which is clear comparing the counter part of the money receipt wherein the word “Ten Thousand” was Pen through and Rs.1,10,000/- was tampered by putting one”O” ,although the said money was paid through cheque dated8.7.2009. So, the private investigation report has no leg to stand upon. It is proved that complainant has paid Rs.1,60,000/- . But fact remains that why he has paid Rs.1,60,000/-. Ld. Advocate of the complainant argued on that point that it is an admission position that there was an agreement showing lawyer’s letter. But he has not entered into the deep route of the same, wherein it has mentioned that “On good faith induced as a licensee”. Moreover , it is the case of theO.P-1 that he is a licensee. Although in the written version it has mentioned that O.P-1’s husband entered into an agreement for sale for the flat and received Rs.1,50,000/- only or vacate the flat .

                Now question is whether complainant has paid Rs.1,50,000/- or vacate the flat.

                The payment of Rs.1,60,000/- was according to re-consideration a license fee and thereafter demanded Rs.1,50,000/- further for entering into an agreement for sale of the flat. But after getting possession complainant did not do the same and on the basis of the money receipts granted by the husband of the O.P-1 on good faith and claims that there is an agreement.

                It is interesting to point out that when complaint was filed on 10.2.2015 , the complainant’s case was that by dint of said agreement for sale. But as and when written version was filed , Ld. Advocate of the complainant cleverly put the word “Verbal” before agreement for sale through ball point pen , and although the complaint petition is a notarized one but that portion as not signed by the Notary. It is well known to us that any portion written in hand writing or if any portion is deleted , before notarizing the same, the Notary Public put his signature in red ink . But here it is clear that complainant did it after seeing the written version with the help of his representation.

                This circumstances clearly suggests that there was no agreement for sale and actually complainant was put in the said flat on good faith as a licensee and taking that advantage he is claiming the said flat on the basis of the said pretty amount ofRs.1,60,000/- , due to demise of Sujit Roy, the husband of O.P-1.

                It is well known to us that if there is no agreement , complainant cannot be said to be a consumer. It is also interesting to point out that in the money receipt there is no mention of selling the flat. So, it is very difficult to hold whether it is a booking money or advance money or part payment of selling the flat and only mentioned “Ground”. That cannot suffice to say that it was taken for selling the flat. It is further interesting to point out that although in the money receipts cleverly the tick was given by the complainant in column of the “part payment in the money receipt dated 8.7.2009”, but in the counter foil it was not ticked filed by O.P-1. Again in the money receipt dated 22.7.2009 complainant cleverly mentioned full and final . But similarly in the counter foil it has nothing mentioned. So, payment was made for purchasing a flat has not been specifically mentioned. Only possession was given as a licencee ,for which, it is written “Ground” but no flat number mentioned. Moreover, whether the payment is full or part, it was not mentioned in the counterpart.  Thus the totality of the circumstances clearly suggests that O.P-1’s husband, on good faith for necessary fund taken the said money of Rs.1,60,000/- from the complainant and given possession of the ground floor flat ,that is why, the Ld. Advocate has written that negotiation is required for registration of the said flat within three years on and from 22.7.2009 i.e the date of taking possession of the said flat since complainant is in possession of the said flat as a licensee.

                With that observation we find that complainant is not a consumer and it is

                                                                                                Ordered

That the complaint case is dismissed on contest in light of the observation that complainant is not a consumer within the purview of C.P Act, 1986 , but in the sorry state of affairs we do not like to saddle the complainant with cost. However, complainant is at liberty to approach before the Civil Court to recover the money of Rs.1,60,000/- which was not given towards the earnest money of purchasing the flat ,but for occupying the flat as a licensee.

Let a plain copy of the judgment be supplied to the complainant  and O.Ps free of cost  .

Member                                                              Member                                                              President

 

Dictated and corrected by me

 

                                President

 

 

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

Ordered

That the complaint case is dismissed on contest in light of the observation that complainant is not a consumer within the purview of C.P Act, 1986 , but in the sorry state of affairs we do not like to saddle the complainant with cost. However, complainant is at liberty to approach before the Civil Court to recover the money of Rs.1,60,000/- which was not given towards the earnest money of purchasing the flat but for occupying the flat as a licensee.

Let a plain copy of the judgment be supplied to the complainant  and O.Ps free of cost  .

Member                                                              Member                                                              President