West Bengal

South 24 Parganas

CC/100/2015

Sri Aloke Sen, S/O Late Mahendra Nath Sen. - Complainant(s)

Versus

1. Sri Sanjoy Chatterjee, S/O Late Sunil Chatterjee. - Opp.Party(s)

Amit Sarkar.

10 Mar 2017

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _100_ OF ___2015__

 

DATE OF FILING : 23.2.2015                                DATE OF PASSING JUDGEMENT:  10.03.2017

 

Present                         :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Sharmi Basu & Subrata Sarker

                                                                             

COMPLAINANT              : Sri Aloke Sen,s/o late Mahendra Nath Sen of 43/9, Maharani Indira Debi Road, P.S. Parnasree, Kolkata – 80.

 

-VERSUS  -

 

O.P/O.Ps                            : 1.     Sri Sanjoy Chatterjee,s/o late Sunil Chatterjee of 60/24, Mahendra Banerjee Road, P.S. Parnasree, Kolkata – 60.

                                            2.     Sri Nilesh Sarkar, s/o late Satya Bijoy Sarkar @ Sadhan Sarkar of 3/227, Rabindra Nagar, (Mahendra Banaerjee Road), P.S. Parnasree, Kolkata – 60.

                                           3.     Smt. Bulu Roy Chowdhury (Sarkar), w/o Sri Narayan Roy Chowdhury of 48/61, Swiss Park, P.S. Charu Market, Kolkata – 33 and also at 3/227, Rabindra Nagar, (Mahendra Banaerjee Road), P.S. Parnasree, Kolkata – 60

                                           4. Smt. Neli Sarkar,d/o late Satya Bijoy Sarkar @ Sadhan Sarkar of 3/227, Rabindra Nagar, (Mahendra Banaerjee Road), P.S. Parnasree, Kolkata – 60.

                                           5.     Smt. Chaitali Ghosh Roy Chowdhury,w/o Sri Supriya Ghosh Roy Chowdhury of 31A, Jheel Road, P.S Garfa, Kolkata –31 and also at 3/227, Rabindra Nagar, (Mahendra Banaerjee Road), P.S. Parnasree, Kolkata – 60.

 

 

 

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President              

            This is an application under section 12 of the C.P Act, 1986 filed by the complainant on the ground that Shefali Sarkar is the original owner  of the land and she entered into a development agreement on 30.11.2001 with the developer Sanjoy Chatterjee , O.P-1 and O.P-1 got building plan duly sanctioned by KMC which was subsequently considered by the Special Officer, Building of KMC in Building Demolition Case no. 98D of the y ear 2004-05.  Thereafter Building was constructed by the O.P-1 and complainant was agreed to purchase a flat mentioned in schedule B at a consideration of Rs.5,40,000/- and agreement was executed on 12.7.2008 to that effect. It has further stated that complainant already paid Rs.4,90,000/-  and in terms  of the agreement balance amount will be received at the time of delivery of possession of the flat along with the execution and registration of the sale deed. In the meantime Shefali Sarkar died intestate leaving behind one son ,O.P-2 and three daughters O.P nos. 3 to 5 as her only legal heirs and successors to her estate according to Hindu Succession Act, 1956. It has claimed that O.P-1 delivered possession of the said flat on 2.12.2012 but inspite of that denied execution and registration of the deed of conveyance ,inspite of the fact that complainant requested through is Ld. Advocate by sending a notice to execute and register the deed of conveyance and received the balance consideration money of Rs.50,000/- . But no such attempt was taken.  Hence, it is a deficiency of service on the part of the O.Ps for which, he has filed this complaint with a prayer to direct the O.P to execute and register the deed of conveyance in respect of the Schedule B and undivided proportionate share mentioned in schedule A of the complaint petition and also prays for compensation to the tune of Rs.50,000/- ,cost of case etc.

            The O.P-1 contested the case by filing written version and has claimed that the case is barred by limitation. The answering O.P-1 has admitted that he was agreed to sell the flat at a price of Rs.5,40,000/- and agreement was executed to that effect and he received Rs.4,90,000/- and also admitted that balance money of Rs.50,000/- will be paid by  the complainant at the time of delivery of possession of the flat and registration thereof. It has stated that flat has already been delivered in favour of the complainant without receiving the balance price. So, he has no deficiency of service and he is always ready and willing to execute and register the deed of conveyance if the O.P nos. 2 to 5 cooperates in the matter of registration. Hence, O.P-1 prays for dismissal of the case.

            O.P-2 filed a separate written version and claimed that the case is not maintainable and he has denied that no legal notice was received by him.  It is the further case of the O.P-2 that his mother Shefali Sarkar ,since deceased, also executed a Will in his favour on 11.8.1997 and he has applied for the probate in the Court of District Judge at Alipore but the O.P nos. 3 to 5 filed a suit against O.P-2 being no. O.S no.1 of 2014 pending before the Ld. 4^th Additional District Judge at Alipore. It has stated that the complainant is well known in this matter and also admitted that complainant purchased one flat from the allocation of the developer,O.P-1 and paid the consideration money to the O.P-1 who has duly delivered possession of the flat and as such O.P-2 in this situation did not commit any deficiency in service in the matter and is not liable for payment of any amount as cost and compensation.

            O.P nos. 3 to 5 ,who are the sisters, jointly filed written statement and have stated that to avoid litigation they always treated the execution of the said agreement dated 12.7.2008 by Sefali Sarkar ,since deceased, as herself and for that reason  O.Ps at all times were and are still ready and willing to complete the sale of the flat in question  in favour of the complainant. They also stated that  they are not aware about the payment of consideration money of the said flat by the complainant to the O.P. It has claimed that  neither the complainant nor the O.P-1 disclosed all the conditions to them.  It has admitted that the lawyer’s notice dated 4.8.2014 was received by them   for registration matter and they replied the same through their Ld. Advocate and they are always  ready and willing to complete the registration. They have no deficiency of service and prays for dismissal of the case.

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

                                                                        Decision with reasons

            It appears that O.P nos. 3,4 and 5 although contested the case filing written version but O.P nos. 1 and 2 did not cooperate after filing written version.

            Be that as it may, one thing is clear that  complainant should get the deed of conveyance registered in respect of Schedule A and B mentioned in the complaint case and simultaneously O.P-1 will also get Rs.50,000/- from the complainant towards the remaining payment for consideration. It should be mentioned here that legal heirs O.P nos. 2 to 5 have stepped into the shoes of her mother Sefali Sarkar ,since deceased. So, it can be said  in no stretch of imagination whether the legal heirs are aware or not, that probably Sefali Sarkar being the mother of O.P nos. 2 to 5 did not disclose all the transactions which was made by her during her lifetime. It may be that normally so long the parents are alive, they dislike to disclose all the matter to the sons and daughters . But that does not mean that they are not liable to act accordingly. It should be borne  in mind that from the written version of the O.P-2 it has come to our knowledge that the O.P-2 being the son has claimed that her mother did not execute any power of attorney in favour of the O.P-1. If the Power of Attorney was executed, then soon after death of the mother the power of attorney automatically lost its weight and when the mother died ,it is the paramount duty of the persons ,herein the sons and daughters, who inherited the same in view of Hindu Succession Act ,to execute and register the deed of conveyance when complainant is in possession admittedly in the developer’s allocation.

            The result of the probate matter and partition suit will not hit the portions of the developer’s allocation because definitely Sefali Sarkar, since deceased, was handed over her allocation and it was remained with her i.e. the owner’s allocation , not the developer’s allocation which has already been extinguished after execution of the development agreement ,that is why developer has transferred the portion to the intending purchasers ,herein the complainant . So, that should not play in the mind of the Bench as well as the O.P-2. O.P-2 should confine himself with the property left by his mother which has not yet been transferred during the lifetime of Sefali Sarkar, since deceased.

            Be that as it may, at this stage we find that O.P-1 is also not strictly fallen under the purview of deficiency of service and after the death of Sefali Sarkar misgiving may have been going on amongst the O.P nos. 2 to 5 ,particularly when there are no relation with the son(O.P-2) and O.P nos. 3 to 5 ,the daughters of Sefali Sarkar, since deceased. So, the O.P nos. 2 to 5 are bound to execute and register the deed of conveyance in favour of the complainant in terms of the agreement which was given birth in terms of the development agreement.

            Accordingly, it is

                                                                        Ordered

That the  complaint case is allowed on contest with cost.

The O.P nos. 2 to 5 are hereby directed to execute and register the deed of conveyance in respect of the flat of the complainant when O.P-1 shall stand as a confirming party ,within 45 days from the date of this order, failing which it will be treated as further deficiency of service and all the O.Ps are liable to pay compensation to the tune of Rs.5000/- each.

Complainant is directed to deposit Rs.50,000/- ,which is the balance consideration money, to the office of this Forum within 30 days from the date of this order.

The O.P nos. 2 to 5 are directed jointly and/or severally to bear cost of Rs.5000/- ,which will be given to the complainant, within 30 days from the date of this order.

It may be mentioned here that complainant is at liberty to execute the order after the expiry of the stipulated date.

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

 

Member                                               Member                                                                       President

 

Dictated and corrected by me

 

 

 

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgment0 in separate sheet is ready and is delivered in open Forum. As it is ,

 

           

Ordered

That the  complaint case is allowed on contest with cost.

The O.P nos. 2 to 5 are hereby directed to execute and register the deed of conveyance in respect of the flat of the complainant when O.P-1 shall stand as a confirming party ,within 45 days from the date of this order, failing which it will be treated as further deficiency of service and all the O.Ps are liable to pay compensation to the tune of Rs.5000/- each.

Complainant is directed to deposit Rs.50,000/- ,which is the balance consideration money, to the office of this Forum within 30 days from the date of this order.

The O.P nos. 2 to 5 are directed jointly and/or severally to bear cost of Rs.5000/- ,which will be given to the complainant, within 30 days from the date of this order.

It may be mentioned here that complainant is at liberty to execute the order after the expiry of the stipulated date.

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

 

Member                                               Member                                                                       President