West Bengal

South 24 Parganas

CC/39/2015

Gouri Saha Wife of Sri Bhagabat Saha. - Complainant(s)

Versus

1. Sri Amarendra Nath Das, S/O Late Tinkari Das. - Opp.Party(s)

Pradip Kumar Das.

15 Sep 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

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

 

      C.C. CASE NO. _39_ OF ___2015_

 

DATE OF FILING : 20.1.2015                     DATE OF PASSING JUDGEMENT:  15/09/2016

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :   Sharmi Basu

                                                                             

COMPLAINANT        :    Gouri Saha,w/o Sri Bhagabat Saha of Purba Putiary, Talbagan, P.S Regent Park, Kolkata – 40.

 

-VERSUS  -

 

O.P/O.Ps                            :     1. Sri Amarendra Nath Das’

                                                 2. Sri Samarendra Nath Das, both sons of late Tinkari Das

                                                 3.  Smt. Sipra Das

                                                4.   Sri Soumen Das , ,s/o late Sukumar Das 

                                                1 – 4 are residing at Vill. Misila, Andul, Dist. Howrah, Pin-711101.

                                           5.    Smt. Durga Das,w/o Sri Santosh Das of Machuya Bazar, Cuttack, Orissa, Pin-753001.

                                           6.   Sri pradip Mondal,s/o late Kanan Mondal

                                           7.   Sri Prabir Mondal,s/o late Kanan Mondal

                                           8.    Sri Pratap Mondal,s/o late Kanan Mondal

                                           9.    Sri Prakash Mondal,s/o late Kanan Mondal

                                           10.   Sri Paresh Mondal,s/o late Kanan Mondal

                                           11.   Sri Prasant Mondal,s/o late Kanan Mondal

                                           12.     Sri Partha Mondal,s/o late Kanan Mondal

                                           13.   Smt. Pratima Mondal,d/o late Kanan Mondal

                                           6 to 13 are of 34, Mahendra Nath Sen Lane, P.S. Regent Park, Kol-40.

                                           14.     Smt. Dally Saha,w/o Sri Subhankar Saha of 27/6, Kshetra Mohan Naskar, P.S. Regent Park, Kolkata – 40.

                                          

_______________________________________________________________________

                                                            J  U  D  G  E  M  E  N  T

Udayan Mukhopadhyay, President

This is an application under section 12 of the C.P Act, 1986 filed by the complainant on the ground that he entered into a sale agreement with the O.P-14 for purchasing a flat measuring about 1700 sq.ft on the top floor south east side of the proposed building with the knowledge and presence of the O.P  and agreement was made on 12.2.2007 at a consideration of Rs.5 lacs and the complainant has paid Rs.50,000/- on 7.2.2007 and another Rs.50,000/- in cash on 11.2.2007 and also paid Rs.1.5 lacs through account payee cheque dated 20.11.2011 vide cheque no. 249563 . Thereafter another payment was made on 16.3.2007 for Rs.1.5 lacs by cash and lastly on 16.4.2007 Rs.1 lacs was paid. Thus complainant paid the entire consideration money of the flat. Complainant requested the O.P-14 several times orally and over phone , even 2-3 notices were sent through her Ld. Advocate to deliver possession of the said flat but he refused to do, although building is completed and ready for delivery of possession. It has further stated that petitioners met the O.P  nos. 1 to 13 and narrated all the incidents and after hearing the O.P nos. 1 to 13 sent one advocate’s notice through his Ld. Advocate and lastly petitioner filed a complaint before the Consumer Affairs and Fair Business Practice  and as per their direction the instant case is filed with a prayer for execution and registration of the deed of conveyance in faovur of the complainant as per terms of the agreement dated 12.2.2007 and to pay a sum of Rs.50,000/- for litigation cost and Rs.2 lacs towards compensation.

The written version of O.P nos. 6 to 13 is filed ,wherein these O.Ps who are land owners ,have claimed that this case is not maintainable in the eye of Law and also claimed that it is a suppression of material facts. It is the positive case of these O.Ps that since the month of April 2009 all these O.Ps have remained entangled with the O.P no.14 with genuine dispute of our allocation, non-delivery of possession within the four corners of Arbitration and Conciliation of 1006 and they have been enjoying an interim order dated 13.9.2011 passed by the Division bench of Hon’ble Justice K.J. Sengupta and Hon’ble Justice Mr. J.M. Bagchi in FMAT no. 1094 of 2011 with CAN no. 7371 of 2011 ,directing the matter to be adjudicated by Hon’ble Justice Mr. Sushanta Chatterjee (Retd.) as sole Arbitrator until the finality of which they could remain in exclusive possession of the entire premises irrespective of their allocation to the extent of 50% of the newly constructed building. Thus neither they have any knowledge about the alleged execution of the said agreement between the complainant and O.P-14 ,nor they have any privity of contract with the complainant allegedly paying hefty sum of Rs. 5 lakhs for purchase of schedule flat in the instant case. It has also stated that said arbitration was completed on 4.3.2015 and has been fixed for publication of award in respect of the allocation and other types of compensation so claimed by us being the claimant of the said proceeding against O.P-14. Accordingly due to interim order passed by the Hon’ble Court in support of exclusive possession of the entire new building and the very allocation of ours as well as that of O.P-14 being the developer were yt to be ascertained and/or adjudicated such an application filed by the complainant seeking possession and execution of the deed of conveyance in her favour by the O.Ps the fate of which are uncertain and pending before a superior Forum. So, this case is baseless, premature and non-maintainable in the eye of Law. The photocopies of 26 sittings of the arbitration is being annexed with the written objection as annexure P1.Accordingly these O.Ps are unnecessary impleaded in this case and this Forum should not proceed with the complaint and should keep in abeyance till the award is published. The O.Ps pray for dismissal of the case.

Written version of O.P-14 being a developer is also filed ,wherein this O.P claimed that this case is misconceived, speculative and not maintainable. It has been claimed by this O.P that complainant is a financier and in the process of construction of the building this O.P made a loan transaction with the complainant  that complainant will pay a sum of Rs.5,00,000/- to the O.P towards business accommodation loan and this O.P will pay interest @20% per month to the complainant. It has observed that towards security of the payment of the said interest and principal amount the complainant and the O.P will execute an agreement for sale of the flat in question. Accordingly on 12.2.2007 and agreement for sale was executed between the complainant and this O.P  and complainant paid Rs.5 lacs to the O.P towards business purpose. It has been claimed by this O.P that O.P paid interest to the tune of Rs.10,000/-  per month to the complainant from the month of April 2009  to the month of July 2014 for 64 months and in the manner aforesaid this O.P in all paid Rs.6,40,000/-  but complainant did not grant any money receipt thereof. Complainant has totally suppressed such payment made to the complainant and thus she has not come before this Bench in clean hand . It has also claimed that the complainant has already taken Rs.10,65,000/-  towards refund of loan amount with principal and interest. Thus the instant case should be dismissed with heavy cost.

The O.P nos. 1 to 5 are not contesting the case . Accordingly case is running in exparte against them.

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

At the outset it must be stated that the agreement for sale which is the basis of the document dated 12.2.2007 was executed showing the names of all the land owners through their Attorney Dally Saha, developr,O.P-14 and O.p-14 herself with the complainant.

Firstly, we have to point out that Notarial power of attorney which was given by the land owners to the developer on 10^th day of February, 2002 only for demolishing the building and arrangement of construction and obtain permission of clearance from the authority to obtain sanctioned plan , in a word that notarial power of attorney was only given for all purposes excepting to execute and register the deed of conveyance in favour of the purchasers and the owners also undertake to execute general power of attorney in favour of the developer by which developer will be able to execute and register the deed in favour of the purchasers. So, the alleged agreement for sale as claimed by the complainant has no leg to stand upon if we minutely go through the notarial power of attorney at apge 15, wherein in the schedule of payment and consideration it has been categorically mentioned “ That developer is hereby paid Rs.10,000/- as first instilment of the total amount of Rs.2.5 lacs to the owners herein and the same is justifiable and refundable advance against their 50% allocation excluding car parking space in the ground floor of the building” that is why developer is in need of money of Rs.2,5 lacs which  has also been impliedly admitted by the complainant in para 4 that fore the purpose of requiring fund the O.P no.14 has decided to enter into a sale agreement with your petitioner for selling one self contained flat measuring about 700 sq.ft on the top floor south east side in the proposed building with the knowledge and presence of the O.P. Again if we turn our eyes on the alleged agreement for sale wherein we find that in page 21 Memo of Consideration is Rs.2.5 lacs. So, that Rs.2.5 lacs was required by the developer immediately for payment to the land owners. That is why, complainant has rightly stated that the developer is seeking fund.

The picture of this case will be cleared if we turn our eyes on the written version of the developer, wherein the developer has claimed that this is a loan transaction and he has also paid Rs.4,25,000/- to the complainant through different post dated cheques and in order to show the developer has filed his bank statement wherefrom we find that the said amount was withdrawn in favour of Gouri Saha  , who is none but the complainant. If that be the position what prompted the complainant to accept those amount? What is the purpose of accepting the same?

Apart from that, the O.P-14 has claimed that he has paid interest @Rs.10,000/- per month from April 2009 to July 2014 but complainant did not grant money receipt . It is true that the persons who are dealing the money lender business having no license definitely will not issue any written document. This is the trend of unofficial money lending like this complainant. But this complainant has accepted altogether Rs.4,50,000/- through cheque which is reflected in the bank statement of the developer. Apart from that, when the questionnaire is put to the complainant by the O.P-14 developer starting from 9 to 15 and 16 complainant failed to give any satisfactory reply save and except “This is totally false and I did not receive any amount from the O.P-14”. Again in answer no.16 complainant stated that there is no question of refund. I requested for registration”. This is not accepted when documentary evidence i.e. bank statement reflected the payment of Rs.4,25,000/- in the name of the complainant Gouri Saha.

It is well known to us that man can lie but document cannot. So, bank statement is a dependable document instead of reply of the complainant who deal in money lending business unauthorized.

It is not the least, because of the fact that if we turn our eyes on the written version of O.P nos. 6 to 13 who are contesting landlords have categorically stated that in view of interim order of the Hon’ble High Court dated 13.9.2011 passed by the Division Bench  in FMAT no.1094 of 2011 with CAN No.7371 of 2011 directing the matter to be adjudicated by the Hon’ble Justice Sushanta Chatterjee (Retd) as sole Arbitrator and until the finality of which they can remain in exclusive possession of the entire building irrespective of their allocation to the extent of 50% of the newly constructed building. It has further stated that 26 sittings have already been completed on 4.3.2015. It is true that until and unless the award is passed the case is not barred in view of the judgment of the Hon’ ble Supreme Court of India. But soon after award is passed Consumer Forum has no power to pass any order. So, the contention of the O.P nos. 6 to 13 that this case is absolutely premature and not maintainable in the eye of law is not correct in view of the decision of the Hon’ble Supreme Court of India. Off course, when the award will be passed then the Consumer Forum has no power to pass any order. But fact remains that the Division Bench of the Hon’ble High court passed interim order and that has not been disclosed by the complainant ,although the same was informed to the complainant by that contesting O.Ps as claimed by them in para 5. So, that contention cannot be ignored considering the conduct of the complainant who being an unauthorized money lender which is clear from the written averment of O.P-14 in para 4 that “towards the security of the payment of the said interest and principal amount the complainant and O.P will execute an agreement for sale of the flat in question  and that is why the aid agreement was executed on 12.2.2007. It was not an agreement for sale because complainant has accepted Rs.4,25,000/- out of Rs.5 lacs. So, if there is no money transaction between the complainant and the O.P-14 why the complainant has accepted that amount showing in the bank statement of the O.P-14.

Accordingly we hold that this complaint is nothing but a frivolous and vexatious complaint and in order to stop this type of complaint Hon’ble Legislature has introduced section 26 of the C.P Act, 1986.

From the foregoing discussion it is manifest that the complaint case is baseless, frivolous, and vexatious and lot of suppression of material facts and the agreement for sale has no leg to stand upon on that date. O.P-14 has also no authority to execute the agreement for sale on behalf of the land owners being a notarial attorney of the land owners.

With that observation we hold that this complaint should be treated in view of section 26 of the C.P Act 1986  in order to give message to this type of complainant  so that justice can be properly meted out.

 

 

 

 

Accordingly it is ,

                                                                        Ordered

That the complaint case is dismissed on contest against the O.P nos. 6 to 14 on contest and in exparte against other O.Ps with cost of Rs.10,000/- to be deposited by the complainant to the Consumer Legal Aid Fund  within 30 days from this date, since this complaint is treated as a vexatious and frivolous complaint in the eye of Law as per observation made in above and thereby needy complainant will get justice in a genuine case in near future from this fund.

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                                                      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 against the O.P nos. 6 to 14 on contest and in exparte against other O.Ps with cost of Rs.10,000/- to be deposited by the complainant to the Consumer Legal Aid Fund  within 30 days from this date, since this complaint is treated as a vexatious and frivolous complaint in the eye of Law as per observation made in above and thereby needy complainant will get justice in a genuine case in near future from this fund.

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                                                      Member                                                                President