West Bengal

South 24 Parganas

CC/498/2014

Mr. Rajesh Gupta, S/O Mr. Om Prakash Gupta. - Complainant(s)

Versus

1.Mahamaya Apartments Private Limited A Company under the Company Act. - Opp.Party(s)

09 Feb 2016

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

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

 

      C.C. CASE NO. _498_ OF ___2014_

 

DATE OF FILING : 26.9.2014                     DATE OF PASSING JUDGEMENT:  9.2.2016

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu

                                                                             

COMPLAINANT             :    Mr. Rajesh Gupta,s/o Mr. Om Prakash Gupta of 162/B/377B, Lake Gardens, Kolkata – 45 and also Flat no.GF-2, Ground Floor, 187, Prince Anwar Shah Road, P.S. Jadavpur, Kolkata – 33.

 

• VERSUS  -

 

O.P/O.Ps                            :  1.     Mahamaya Apartments Private Limtied at 22/1, Ezra Mansions, 10, Govt. Place East, Kolkata – 700 001.

                                            2.     Smt. Ila Roychowdhury,w/o late Rajendra Nath Roy Chowdhury

                                            3.     Rathin Roy Chowdhury,s/o late Ranjan Roychowdhury

                                            4.     Mr. Ramen Roychowdhury,s/o late Ranjan Roychowdhury

                                            5.     Ratna Roychowdhury,d/o late Ranjan Roychowdhury

                                            6.   Mr. Suprasidhaya Roy,s/o late Sucharita Roy

                                            7.    Mr. Soumendra Roy,s/o late Sucharita Roy

                                            All of 187, Prince Anwar Shah Road, Kolkata , P.S. Jadavpur.

Proforma O.Ps                   :  8.    MRs. Sabita Banerjee,w/o Mr. B.K. Banerjee of 22/5/1, Rustamji Street, Kolkata – 19.

                                            9.       Mrs. Ratna Goswami,w/o Mr. Goutam Goswami of 20/114/B, Prince Anwar Shah Road, P.S. Lake, Kolkata – 45 now residing t 187, Prince Anwar Shah Road, Kolkata – 33

_______________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President

The application under section 12 of the C.P Act, 1986 has been filed by the complainant on the ground that O.P nos. 2 to 7 are the joint owners of their respective shares in respect of the land and premises situated at 187, Prince Anwar Shah Road, P.S. Jadavpur, Kolkata ,inherited from their predecessor in interest. It is stated that on the strength of registered deed of partition dated 7.6.1986 predecessor in interest of the aforesaid joint owners O.P nos. 2 to 5 became absolute owner of eastern side portion and O.P nos. 6 and 7 became absolute owner of the western side portion of the above premises having an area of in all 10 catthas 2 chittak 42 sa.ft and they  mutated their names in the record of Municipal Corporation . Thereafter the predecessors in interest of O.P nos. 2 to 5 and O.P nos. 6 and 7 entered into an agreement dated 20.2.1987 engaging O.p-1 as a developer to develop and construct a new building in respect of the aforesaid land and to sell ,lease, transfer in favour of the intending purchasers and receive consideration money etc. Thereafter   in terms of the deed of dissolution dated 10.3.1987 the aforesaid partnership firm floated by the predecessors in interest of O.P nos. 2 to 7 was dissolved and the said property which had then become a partnership property was allotted to the said partners in the ratio as stated therein. It has further stated that proforma O.P-9 assigned her right, title and interests, claims or demands whatsoever in respect of the said flat and in terms of the said mother agreement dated 12.10.1991 and the subsequent nomination agreement dated 25.8.1995  unto and in favour of the complainants herein against receipt of valuable consideration as and by way of an agreement for Nomination dated 28.3.2008 . In terms of the said assignment, inter alia, the complainant as the assignee is entitled to obtain the deed of conveyance in respect of the said flat together with the share of land beneath the said premises directly from the present owners being the O.P nos. 2 to 7 without requiring to pay any consideration whatsoever and terms and conditions as contained in the said nomination agreement. By the aforesaid nomination agreement the proforma O.P or for that matter O.P nos. 2 to 7 in no uncertain terms agreed to sell land transfer all their respective rights, title  and interest whatsoever entitled to get in terms of her aforesaid original agreement dated 12.10.1991 in favour of the complainant or his nominees and the said proforma O.Ps agreed to execute and perform any other act ,deed or things whatsoever relating to the said flat as she could personally do as if the said nomination agreement had not been executed and performed to ratify and confirm all and whatsoever the complainant or his substitute shall do or cause to be done or execute also not to revoke the power thereby conferred or any of them at any time thereafter. It has also been stated that complainant already took physical possession of the said property from the Proforma O.P-9 and has been and is in occupation and enjoyment of the same . There remains no consideration due or payable by the complainant to anybody.

 It is the positive case of the complainant that complainant is enjoying of the property and O.P nos. 2 to 7 jointly and/or severally duty bound to execute and register the deed of conveyance and they are jointly liable. So, they are guilty of deficiency in service.

It is mentioned here that case is running in exparte. Although O.P-3,4,6 and 7 appeared and filed a petition praying for time to file written version  but ultimately did not do so and complainant filed track report, wherfrom it appears that remaining O.P i.e. O.P nos.1,2,5,8 and 9 although received summons but did not appear. Hence, the case proceeded in exparte.

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 outset, it must be stated that complaint case is very much peculiar in nature and the dispute as claimed by the complainant cannot be solved in a summary trial because the Consumer Forum will not examine or decide the title of the property. Herein, we find that one deed of assignment dated 28.3.2008 is filed which is not a registered document. Apart from that, another deed of assignment dated 25.8.1995 is also not registered and thereafter another agreement dated 12.10.1991 is also filed and tax receipt of the Corporation clearly suggest the name of the owner one Ranjan Roy Chowdhury , Smt. Basudha Roychowdhury ,Sri Suprasidha Roy, Sri Soumendra Roy and Smt. Sabita Banerjee. Apart from that one possession letter is filed by the complainant which appears to be executed by one Ratna Goswami who is proforma O.P-9  and one copy of intimation regarding payment of common generator ,legal chares, security deposit etc. issued by the O.P-1 to Sabita Banerjee ,who is Proforma O.P-8 and the deed of assignment was made on 25.8.1995 by the said Sabita Banerjee being an assignor to Mrs. Ratna Goswami, O.P-9 the assignee.

We are aware that the title of the immovable property only can be passed by way of registered instrument or order of the Civil Court. So, no registered document is filed ,no order of Civil Court is filed or registered partition deed is filed .So, how and under what manner we will decide and ask the O.Ps to execute and register the deed of conveyance in favour of the complainant ,particularly when, the complainant is not a consumer with O.P nos. 1 to 7 and since no consumer relationship is proved. Moreover, our considerable view regarding the dispute ,after going through the case of the complainant at a glance, is that complex questions of Law is involved which can only be sorted by the competent Civil Court and it cannot be possible in a summary trial in exparte ,as there is no scope to examine the title of the parties in a summary trial .

The Consumer Forum, will look whether there is any deficiency in service or unfair trade practice . here, the O.P nos. 1 to 7 having no such unfair trade practice and deficiency in service by their acts and deeds with the complainant. So, this dispute only can be solved by the competent Civil Court having its jurisdiction and in order to save the court fees as well as to save the impounding of the unregistered document  as submitted in order to show the title of the case, complainant cleverly filed this case and somehow wanted to get order but the same will not be possible in a summary trial. So, we are sorry to hold that this dispute only can be settled by the competent Civil Court having jurisdiction.

Hence,

                                                                        Ordered

That the application under section 12 of the C.P Act, 1986 is dismissed in exparte against the O.Ps but in the sorry state of affairs we do not like to saddle the complainant by imposing cost and penalty under section 26 of the C.P Act.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.

 

                                                Member                                                                       President

 

Dictated and corrected by me

                               

 

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

 

            Ordered

That the application under section 12 of the C.P Act, 1986 is dismissed in exparte against the O.Ps but in the sorry state of affairs we do not like to saddle the complainant by imposing cost and penalty under section 26 of the C.P Act.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.

 

                                                Member                                                                       President