DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS ,

AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

                C.C. CASE NO. 82 OF ___2016_

DATE OF FILING : 5.8.2016                       DATE OF PASSING JUDGEMENT:  9.7.2018

Present                                :   President       :   Ananta Kumar Kapri

                                                    Member(s)    :    Subrata Sarker  & Jhunu Prasad                                                                                                 

COMPLAINANT                          : Shankar Kumar Majumdar, son of late Aswini Kumar Majumdar of E.S.I Complex, G.B Block, Salt Lake City, Kolkata – 97.

- VERSUS  -

O.P/O.Ps                                             :  1. Sri Karunamoy Nath

                                                                   2. Sri Prabir Kumar Nath

                                                                   3.  Sri Ganesh Chandra Nath

                                                                    4.  Sri Dinesh Chandra Nath

                                                                    5.  Sri Kamalesh Nath

                                                                    6.  Sri Samaresh Nath

                                                          All sons of late Harendra Nath  of 68, Jadav Sarkar Lane, Baikunthapur, P.O Rajpur, P.S Sonarpur, Kolkata-149.

                                                             7.    M/s Bindhachal Construction, Sole Proprietor Mithun Mistry ,son of Sukumar Mistry of Village and Post Office Sahidkhali, P.S Hingalganj, Dist.  North 24-Pargans, Pin-743435.

                                                          8.   Subhasis Mondal, son of Sri Mohadeb Mondal of B-1/5, 002, Prantik , Peerless Housing Society, P.O and P.S Sonarpur, Kolkata – 150.

________________________________________________________________________________

                                                                                J  U  D  G  M  E  N  T

JHUNU PRASAD, LADY MEMBER

The door of this Forum has been knocked by the complainant, for redressal arising out of the consumer dispute as per the Consumer Protection Act, 1986.

In diminutive, the fact stated in the complaint, is that, the Opposite Party No.1 to 6 are the land owners, the Opposite Party No.7 is the developer and the Opposite Party No.8 is the new developer.

The complainant entered into an agreement with the Opposite Party No. 1 to 7 for purchasing one residential flat on the ground floor measuring about 600

sq.ft. super built up area at a total considering amount of Rs.8,40,000/- and the said agreement was executed  on 16.01.2013.

            The complainant paid a sum of Rs. 4.50,000/- out of Rs.8,40,000/- as total consideration money to the Opposite Party No.7 through cheques being No.137562 and 055739 drawn on UBI, Purbachal  branch, Kolkata and Rs.10,000/- by cash.

            Thereafter due to some reasons the Opposite Party No.7 developer could not complete the construction work and executed one deed of assignment dated 21.09.2014 with the Opposite Party No. 8 and transferred, conveyed and assigned all his right, title and interest in respect of the property as mentioned in the complaint. It has also been agreed by and between the Opposite Party No.1 to 6, land owners and the Opposite Party No. 7 and the Opposite Party No. 8 that the Opposite Party No. 8 shall construct and complete the proposed building as per agreement dated 21.09.2014.

            Thereafter the Opposite Party No. 1 to 6 and Opposite Party No. 8 executed a fresh “Agreement for Sale” with the complainant for the above mentioned flat in question.

            The complainant further paid of Rs.2,50,000/-  through cheque being No. 13757 and by cash Rs.50,000/- to  the Opposite Party No.8.

            In spite of payment of Rs. 7,50,000/- out of total consideration amount of Rs. 15,00,000/- the Opposite Party No. 8 did not bother to register the sale deed in respect of the above mention flat in question in favour of the complainant.

            Thereafter the complainant several times requested the Opposite Parties to  execute register the deed of sale, but the Opposite Parties deliberately neglected to do the same.

            Having no other alternative the complainant filed this instant case for getting relief as prayed for.

            Issued notices upon the Opposite Parties.

After receipt the notices the Opposite Party No. 1 to 6  and the Opposite Party No.8 appeared and contested the case by way of  filling separate written version, denying all the contentions and all material allegations made by the complainant in the petition of complaint and stating inter alia, that the case is not maintainable and the complaint is suffers from mis joinder and non-joinder of parties.

            The specific case, as stated by the Opposite Party No. 1 to 6, in terse, is that, admittedly one unregistered development agreement dated 14.09.11.has been executed between the Opposite Party No.1 to 6 and the Opposite Party No. 7, Mithun Mistry for construction of a multistoried building over the homestead land. On 27.06.2012 the building plan has been sanctioned from Rajpur – Sonarpur Municipality and the Opposite Party No. 7 constructed the super structure into and over the said plot of land of his own fund.

            But due to certain reason the Opposite Party No. 7 expressed his inability to execute the development work in terms of the said agreement and approached the land owners to execute the development agreement afresh with the Opposite Party No.8. Accordingly one deed of assignment was executed on 21.09.2014 with the Opposite Party No.1 to 6 and the Opposite Party No.7 and the Opposite Party No.8 by the strength of which the Opposite Party No. 8 acquired all the liabilities, responsibilities and the super structure constructed by the Opposite Party No. 7 upon payment of Rs. 41,80,000/- and the remaining work for completion of construction assigned to the Opposite Party No.8 and the Opposite Party No.8 being the assignee under took the same by way of the said deed of assignment.

            After execution of deed of assignment the Opposite Party No. 1 to 6 executed a registered development agreement in favour of Opposite Party No.8 on the same date. The Opposite Party No. 1 to 6 also executed a general power of attorney in favour of Opposite Party no.8 and the Opposite Party No. 8 will credit the profits from such construction in the bank A/C of the Opposite  Party No.1  to 6. The Opposite Party No. 1 to 6 further submits that due to non compliance of development agreement by the Opposite Party No.8 the Opposite Party No.1 to 6 sent legal notice to the Opposite Party No 8.

The Opposite Party No 1 to 6 also submitted that they have no knowledge about any sale transaction took place between the complainant and the Opposite Party No.7 nor they have any knowledge about payment of consideration between the complainant and the Opposite Party No.7.

             The Opposite Party No. 7 also did not disclose about the alleged sale agreement. The Opposite Party No.1 to 6 did not take any single penny from the complainant or from the Opposite Party No.7 and 8. They further submitted that if any such transaction took place with the Opposite Party No.7 and 8 then the entire liability and responsibility is attributed upon the shoulder of Opposite Party No.7 and 8 

Despite service of notice, the Opposite Party No. 7 never appeared before the Forum to contest the case by filing written version and so, the instant case has been heard ex-parte against the Opposite Party No.7.

By challenging the maintainability of the complain case the Opposite Party No. 8 submitted that he has no knowledge about any agreement executed between the complainant and the Opposite Party No.7 .

The Opposite Party No.8 did not promise or cause to promise for delivery and registration of flat in favour of the complainant. The Opposite Party No.8 received only financial assistance from the complainant against due receipt but such receipt can’t be said to have any agreement between the complainant and Opposite  Party No. 8. There is no promise or cause to promise for any transaction of any nature between the Opposite Party No.8 and the complainant.

The Opposite Party No.8 practically denied all allegations made by the complainant in his complaint. The Opposite Party No. 8 has no relationship with the complainant, is not a service provider or developer to the complainant. The Opposite Party No.8 is a debtor and the complainant is a creditor. The Opposite Party No. 8 did not cause any deficiency in service or unfair trade practice.

Accordingly, the Opposite Party No.8 prays for dismissal of the complaint.

Moreover, all allegations made by the complainant never challenged by the Opposite Party No.7, even the Opposite Party No.7 did not appear to contest the case before the Forum. Therefore, there are no reasons to disbelieve the unchallenged testimony of the complainant.

POINTS FOR DECISION:-

  1.Is the  complaint maintainable under the C.P. Act 1986?

 2. Whether the complainant is entitled to get any relief as prayed for?

DECISION WITH REASONS:-

At the time of argument the complainant and the Opposite Parties have filed affidavit –in- chief, BNA, and some Xerox copies of documents to support of their claim.

All points are taken up together for consideration for the sake of convenience and brevity.

           We have carefully considered the submissions made before us by the Ld. Advocate for the complainant and also the Ld. Advocate for the Opposite Party No. 1 to 6 and the Ld. Advocate for the Opposite Party No. 8, and also critically perused all the material documents on record.

On overall evaluation of the argument advanced by the Ld. Advocate of all the parties, appeared and contested, and on critical appreciation of the case record, it is evident that, the total value of the complaint is 25,00,000/- which is beyond jurisdiction of this Forum. Section 11 of the C.P. Act, 1986 is clearly described the pecuniary limits as ‘value of goods or services and compensation does not exceed Rs. 20,00,000/-. Here in this case  the value of the flat is 15,00,000/- along with compensation of Rs. 5,00,000/-,litigation cost of Rs.2,00,000/- and cost of demerge of Rs.3,00,000/- as claimed by the complainant, total Rs. 25,00,00,000/- which exceeds the pecuniary limits of this Ld. Forum. We should keep in mind that for the purpose of pecuniary jurisdiction we should consider the value of goods or services (here the value of flat) along with compensation claimed which in totality would determined the pecuniary jurisdiction irrespective of the fact whether the complainant claimed the value of flat or not?

From the above detailed and analytical discussion we have no hesitation to hold that, the instant complaint is barred under pecuniary limits.  As the complaint is not maintainable, barred under pecuniary grounds.

Therefore, we declined to decide the complaint on merit and kept open to decide by the appropriate Forum.

Hence,

                  it is,

                                                  Ordered

That the complaint be and the same is dismissed on the ground of lack of pecuniary jurisdiction but considering the facts and circumstances, liberty is given to the complainant to file the complaint before the appropriate Forum.

            Let copies of the order be supplied to the parties free of cost when applied for.

Member                                Member                                                      President

Dictated and Corrected by me

                        Member