DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

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

      C.C. CASE NO. _112_ OF ___2014_

DATE OF FILING : 18.3.2014                     DATE OF PASSING JUDGEMENT:  28/06/2017

Present                        :   President       :   Udayan Mukhopadhyay

                                        Member(s)    :    Subrata Sarker & Jhunu Prasad

COMPLAINANT             :        1. Smt. Soma Chatterjee, wife of Sri Subir Chatterjee.

2. Sri Subir Chatterjee, son of late Subodh Chatterjee of 4^th Floor, Flat no.401, 568(old), 66/1D (New) , Becharam Chatterjee Road, P.S Behala, Kolkata- 34, KMC Ward no. 130.

-VERSUS  -

O.P/O.Ps                            :  1.     Sri Kali Krishna Sinha, son of late Nani Gopal Sinha of M/s Joy Guru Construction of P-313, Unique Park, P.S Behala, Kolkata – 34.

                                              2.     Sri Sankar Prasad Dutta, son of late Hriday Ranjan Dutta.

                                              3.    Smt. Rekha Rani Dutta , wife of Sri Sankar Prasad Dutta of 3^rd Floor at premises no. 568(old), 66/1D (New) , Becharam Chatterjee Road, P.S Behala, Kolkata- 34

_______________________________________________________________________________________

                                                            J  U  D  G  E  M  E  N  T

Sri Udayan Mukhopadhyay, President

            The short case of the complainant is that complainant entered into an agreement for sale for purchasing a flat measuring 825 sq.ft super built up area consisting of two bed rooms, one living cum  dining room, 1 kitchen, two toilets, 1 balcony  at a consideration of Rs.8,50,000/- and agreement for sale was executed on 7.1.2009  , a copy of which is annexed with the complaint. It is the further case of the complainant that he has paid entire consideration money of Rs.8,50,000/-  and developer O.P-1 granted money receipts which are annexed in Annexure II and physical possession has already been delivered to the complainant. It has alleged that from the date of possession complainant requested the O.Ps to execute and register the sale deed in favour of the complainant for the said flat but the O.Ps neglected to do the same. Hence, this case praying for execution and registration of the deed of conveyance , Rs.1 lac for enhancement of stamp duty and registration fees, Rs.1 lac towards  compensation  and cost , if any.

After remand of the case by the Hon’ble State Commission vide order in F.A no. 1029 of 2014, the O.P-1 did not appear and contest the case and case is running in exparte agaisntO.P-1.

O.P nos. 2 and 3 contested the case by filing written version on 31.5.2017 ,who are landlords. The positive case of the landlords is that the case is barred by limitation, bad for non-joinder of parties and also claimed that these landlords have been made unnecessary parties to this case, particularly when as per Development Agreement these answering O.Ps authorized the O.P-1 ,the developer, to do the needful according to Law and Power of Attorney has been given. Apart from that they have claimed that O.P-1, developer, is a greedy person which was not known to these answering O.Ps at the time of engaging him as a developer and also claimed that O.P-1 has done many works illegally and several banks affixed auction notices namely Central Bank of India, Bank of India, Bank of Baroda and Punjab National Bank upon the front door of the flat in question and the same was advertised in the daily newspaper namely Aajkal and Times of India to inform the same in public. The Xerox copy of the said publication of various banks are annexed herewith which are marked as annexure A & B . It has further stated that knowing fully well about the facts and circumstances these O.Ps have been made parties to this case unnecessarily. It has also stated that suppressing all the actual state of affairs and trying to obtain order by practicing fraud upon the Court, complainant wants to get order agaisnt O.P nos. 2 and 3, which no court can grant and hence, pray 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

At the very outset it must be stated that in respect of this flat in dispute being no.401 , although complainant is claiming possession, but  the possession notice of different banks under the SARFEISI Act clerly suggests that one Rama Chowdhury already took loan showing this flat from the said bank being flat no.402 at premises no. 4^th Floor, 568(Old), 66/1D (New), Becharam Chatterjee Road, P.S Behala, Kolkata- 34 . The notice under section 13(12) read with Rule of the Security Interest Enforcement Rules 2002 and published in the Newspaper has clearly   taken away or snatched the right of the complainant and the jurisdiction to entertain the case has already been ceased when the SARFAISI Act entered. It is interesting to point out that my predecessor Bench  passed exparte order on 10.7.2014 against the O.Ps ignoring the written objection filed by the O.P-1 on 23.6.2014. One maintainability petition was also filed by the O.P-1 on 9.6.2014 wherein the SARFAISI Auction Sell of the schedule flat was intimated  and in the written version also the O.P-1 mentioned before passing the judgment in exparte by my predecessor Bench on 10.7.2014 that this Bench has no right to interfere due to SARFAISI Act entered and Sarfaisi Auction Sell. But ignoring all these things exparte order was passed ,that is why, Hon’ble State Commission has rightly set aside the judgment and sent the same on remand for afresh trial.

Thus the  totality of the circumstances clearly suggests that it is a suppression of material facts and Section 114(g) of Evidence Act is clearly attracted against the complainant because, if the real thing was produced or informed then the same was against him, that is why, he has suppressed the material facts ,for which firstly  , the possession notice  for Sarfaisi Auction Sale under SARFAISI Act and thereafter suppression of material facts clearly snatched the right of the complainant at this stage , particularly when this Bench has no jurisdiction to entertain the same.

Hence,

                                                                        Ordered

That the complaint case is dismissed on contest against O.P nos. 2 and 3 and in exparte against O.P-1 (as O.P-1 developer did not contest the case after remand ) but in the sorry state of affairs we do not like to saddle the complainant with cost.

Complainant is at liberty to approach before the Debt Recovery Tribunal under the SARFAISI Act to redress his dispute where it is pending.

Let a plain copy of this order be handed over to the complainant and the 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 against O.P nos. 2 and 3 and in exparte against O.P-1 (as O.P-1 developer did not contest the case after remand ) but in the sorry state of affairs we do not like to saddle the complainant with cost.

Complainant is at liberty to approach before the Debt Recovery Tribunal under the SARFAISI Act to redress his dispute where it is pending.

Let a plain copy of this order be handed over to the complainant and the O.Ps free of cost.

Member                                                                       Member                                               President