West Bengal

South 24 Parganas

CC/267/2015

Mrs. Jharna Dutta Roy, Wife of Mr. Sajal Kanti Dutta Roy. - Complainant(s)

Versus

1. Sri Manna Dutta, S/ O Late Haripada Dutta. - Opp.Party(s)

S.S.Chowdhury.

19 Dec 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

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

 

      C.C. CASE NO. _267_ OF ___2015_

 

DATE OF FILING : 9.6.2015                         DATE OF PASSING JUDGEMENT:  19/12/2016

 

Present                         :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :   Subrata Sarker

                                                                             

COMPLAINANT        :     Mrs. Jharna Dutta Roy,w/o Mr. Sajal Kanti Dutta Roy of 17R, K.P. Roy Lane, P.S Kasba now Garfa, Kolkata – 31.

 

-VERSUS  -

 

O.P/O.Ps                            :     1.    Sri Manna Dutta,s/o late Haripada Dutta of 43, Ashutosh Colony, P.S. Garfa, Kolkata – 78.

                                                2a.     Amit Kumar Dutta Roy

                                                2b.      Sujit Kumar Dutta Roy

                                                2c.     Sajal Kanti Dutta Roy

                                                2d.     Ujjawal Kanti Dutta Roy

                                                All are sons of late Lalit Mohan Dutta Roy of 17R, K.P.Roy Lane, P.S. Garfa, Kolkata – 31.

                                          

_______________________________________________________________________

                                                            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 O.P-1 is a developer and the O.p-2 series are the landlords and he entered into an agreement for purchasing a flat measuring 308 sq.ft on the 1^st floor at premises no.17R, K.P. Roy Lane, P.S. Garfa, Kolkata – 31, at a total consideration of Rs.2,75,000/-.

It has further stated that complainant form his personal account has paid the entire consideration money to the developer. The developer handed over possession of the said flat in favour of the complainant through Sajal Kanti Dutta Roy. Complainant also accepted possession of the said flat and she is residing thereon and requested the developer to execute and register the sale deed in favour of the complainant in respect of the second schedule flat  but the developer ,O.P-1, has failed and neglected to execute the sale deed ,thereby the price of the flat has already increased day by day and automatically stamp duty and registration charge is also increased ,for which developer is liable to pay Rs.50,000/- towards enhancement of stamp duty and also Rs.1 lac compensation towards deficiency in service and Rs.50,000/- for suffering mental agony, and also prays for registration through the machinery of the Forum if the O.Ps failed to execute and register the same , cost of Rs.25000/- etc.

The O.P-1 ,the developer, is contesting the case by filing written version and has denied all the allegations of deficiency of service. It has further stated that Sajal Dutta Roy had entered into a verbal arrangement for a covered area of 308 sq.ft on the first floor of the building in addition to his owners’ allocation for an agreed consideration @900/- per sq.ft and said Sajal Kanti Dutta Roy was put in possession along with excess area of 308 sq.ft and possession letter was already given on 6.7.2013 . Thereafter, some disputes arose regarding car parking space on the ground floor of the said premises between the other flat owners and the said Sajal Kanti Dutta Roy for which a civil proceedings is initiated against the answering O.P. It has claimed that from copy of the complaint it will be crystal clear that the agreement for sale was a verbal one and made by and between the husband of the complainant and the said agreement was duly acted upon by delivery of possession of the said subject matter of that agreement which would be evidence from the possession letter issued by the answering O.P. Moreover, date of possession has not been specifically mentioned. Photocopy of possession letter is annexed herewith. The answering O.P is always ready and willing to discharge his legal liability towards the husband of the complainant but as the husband of the complainant Sajal Kanti Dutta Roy has initiated civil proceedings against the O.P with a view to obstruct or create disturbance in disposing of the developer’s allocation, the deed of conveyance was not executed in favour of Sajal Kanti Dutta Roy , the husband of the complainant in respect of 308 sq.ft. Accordingly O.P has claimed that complaint case is not maintainable as complainant has no right ,title and interest in respect of the subject of complaint in any manner whatsoever. Moreover, the complainant is a third party so far as the transaction of agreement for sale is concerned and prays for dismissal of the case.

The O.P-2 is not contesting the case inspite of serving the summon.

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

                                                            Decision with reasons

At the very outset it is interesting to point out that case is running against the land owners in exparte ,out of which, land owner 2© is Sajal Kanti Dutta Roy , who is husband of the complainant . It is also clear from the possession letter dated 6.7.2013 that Sajal Kanti Dutta Roy puts his signature and got possession acknowledging that “ I accept delivery of the vacant possession of the above mentioned flat and car parking space on my fullest satisfaction”.

So, the case of the complainant that the agreement for sale made with the complainant, is not  standing , particularly when document of possession dated 6.7.2013 clearly suggests that there was no agreement either verbal or written at least with the wife of Sajal Kanti Dutta Roy. So, for wrongful gain this complaint was filed at the instigation of Sajal Kanti Dutta Roy who is one of the owner of the said property in the name of his wife Jharna Dutta Roy , for which after filing the written version by the O.P ,the date of evidence was fixed by the complainant but complainant failed to avail the said opportunity even fixing last chance and absent thereafter ,thereby show cause notice was given to the complainant as to why she shall not be debarred from filing evidence ,although consecutive five dates including the date of order was passed but complainant is very much reluctant for filing evidence, probably after perusing the written version the cat has come out of the bag. Lastly contesting O.P-1 was given opportunity to file evidence and O.P-1 filed evidence on affidavit and case was proceeding against the land owners including the husband of the complainant (one of the land owners) already stated above in exparte and complainant was given last opportunity for filing questionnaire but complainant did not choose to appear before this bench and argument was heard . From the above discussion it is crystal clear that this complaint case is vague ,frivolous, vexatious as well as suppression of material facts ,because husband of the complainant who got possession of the said flat being one of the land owners initiated civil proceedings but the said matter was not disclosed in the petition of complaint and filed this case in the name of his wife who is a complainant with some false pretext . So, we find that there is no deficiency in service acted upon by the O.Ps except the O.P2c Sajal Kanti Dutta Roy ,one of the land owners, who is the husband of the complainant and the star person to file this type of vexatious complaint to squeeze money from the developer,O.P-1. So, if any bench goes through the entrie complaint case and after perusing possession letter ,which was accepted by Sajal Kanti Dutta Roy who happens to be the husband of the complainant, clearly suggests that Sajal Kanti Dutta Roy is the maker of this vexatious and frivolous complaint .

Accordingly it is a fit case to deal under section 26 of the C.P Act, 1986 ,otherwise, this type of greedy persons namely O.p-2c cannot be treated properly.

Hence,

                                                            Ordered

That the complaint is dismissed on contest against O.p-1 and in exparte against the other O.Ps in light of the observation made in above.

This complaint case is considered as a frivolous and vexatious complaint for the reasons mentioned above. The possession letter is a tram card like “Tekka” at the time of playing cards and developer ,O.P-1, already placed that possession letter and mentioned all the things with affidavit and thereafter the complainant fled away from the proceedings. So, if we restrain ourselves in passing any cost ,then it will be very much injustice and Hon’ble Legislature will be astonished by passing Section 26 of the C.P Act, 1986 ,since Section 26 of the C.P Act has directed that if the vexatious and frivolous complaint is determined then complainant shall pay the cost not exceeding Rs.10,000/- to the O.P. Here contesting O.P is the developer and others are the land owners, wherein complainant’s husband is there namely O.P-2c Sajal Kanti Dutta Roy.

So, the cost is assessed at Rs.10,000/- which will be paid by the complainant ,out of which Rs.5000/- will be given to the O.P-1 and rest Rs.5000/- will be deposited in the Consumer Legal Aid Fund , South 24-pargnas , within 30 days from the date of this order. This order is passed in order to stop filing vexatious ,false and frivolous complaint.  

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                                                                                                                       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 is dismissed on contest against O.p-1 and in exparte against the other O.Ps in light of the observation made in above.

This complaint case is considered as a frivolous and vexatious complaint for the reasons mentioned above. The possession letter is a tram card like “Tekka” at the time of playing cards and developer ,O.P-1, already placed that possession letter and mentioned all the things with affidavit and thereafter the complainant fled away from the proceedings. So, if we restrain ourselves in passing any cost ,then it will be very much injustice and Hon’ble Legislature will be astonished by passing Section 26 of the C.P Act, 1986 ,since Section 26 of the C.P Act has directed that if the vexatious and frivolous complaint is determined then complainant shall pay the cost not exceeding Rs.10,000/- to the O.P. Here contesting O.P is the developer and others are the land owners, wherein complainant’s husband is there namely O.P-2c Sajal Kanti Dutta Roy.

So, the cost is assessed at Rs.10,000/- which will be paid by the complainant ,out of which Rs.5000/- will be given to the O.P-1 and rest Rs.5000/- will be deposited in the Consumer Legal Aid Fund , South 24-pargnas , within 30 days from the date of this order. This order is passed in order to stop filing vexatious ,false and frivolous complaint. 

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                                                                                                                       President