DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,

 KOLKATA-700 0144

 

      C.C. CASE NO. __312_ _ OF ___2015

 

DATE OF FILING :3.7.2015      DATE OF PASSING JUDGEMENT:22.1.2019

 

Present :   President       :   Ananta Kumar Kapri

 

    Member(s)    :    Subrata Sarker 

      

COMPLAINANT   :  1. Meena Chakraborty, wife of late Dipak Chakra borty of 375, P.A Shah Road, South City Tower-1, 17G, Kolkata-68, P.S Jadavpur. 

2.     Manjula Mitra, wife of late Dipendra Nath Mitra of 2, Canal Street, Kolkata-14, P.S Entally.

3.   Alokendra Mitra

4.   Santanu Mitra, 

Complainant nos. 3 and 4 are sons of late dipendra nath Mitra and Manjula Mitra, of 2, Canal Street, Kolkata-`14 and  here by represented by their Constituted Attorney Manjula Mitra. 

 

 VERSUS  -

 

O.P/O.Ps : AGW Realtors Pvt. Ltd. 56, Raja S.C Mallick Road, P.S jadavpur, Kolkata- 32, represented by Managing Director

1.  Malti Devi Banka

2.  Kalicharan Agarwalla

3. Radlie Sliyam Banka

__________________________________________________________________

J  U  D  G  M  E  N  T

                  Frustrated by constant refusal to register and deliver the possession of the flat in favour of the complainants by the O.P, the complainants have filed the instant case under section 12, C.P Act, 1986 ,alleging deficiency in service on the part of the O.P/developer. 

                The facts leading to the filing of the instant case may be epitomized as follows. 

                 One Prosenjit Mitra, son of late Rajen Mitra made a sale agreement dated 31.7.2004 with the O.P/developer. The O.P thereby agreed to sell a flat of 977 sq.ft on the 4th floor of Block-1 in “ ËKTA-Heights”, succinctly described in Schedule to the agreement for Rs. 17,49,800/-. The said prosenjit paid Rs.12,51,000/- to the O.P. Thereafter, he died on 10.12.2004 as a bachelor. His parents died prior to him. Complainant-1 is his aunt (father’s sister). One Dipendranath Mitra was his uncle (father’s brother). They inherited the properties left by Prosenjit Mitra. Thereafter, Dipendra Nath Mitra also died, leaving behind his wife i.e complainant-1 and 2 sons i.e complainant nos. 3 and 4. Thus, the complainants have inherited the properties left by Prosenjit Mitra. They have also paid Rs.4,98,800/- to the O.P. The O.P has not registered and delivered the possession of the flat to them. Hence this case for registration and possession of the flat and also for compensation etc. 

                The O.P has been contesting the case by filing written statement ,wherein it is mainly contended that the complainants have no documents to prove that they have inherited to the estate left by the deceased Prosenjit Mitra and that they are sole legal heirs of the deceased. Prosenjit has been described as a brother’s son and sometimes as a son in law of complainant-1. The complainants gave a cheque amounting to Rs.3 lac to the O.P, But the said cheque has not been presented by the O.P to his bank for encashment as the complainants have no documents to prove that they have acquired right, title and interest to the estate of the deceased. They have no locus standi to maintain this case and, therefore, the case should be dismissed in limini with cost. 

               

                Upon the averments of the parties, the following points are formulated for consideration.

POINT FOR DETERMINATION 

Is the case maintainable in Law? 

Is there any deficiency in service on the part of the O.P as alleged by the complainant ?

Is the complainant  entitled to get relief or reliefs as prayed for ?

EVIDENCE OF THE PARTIES

          Evidence on affidavit is filed on behalf of the complainant. The contesting O.P has also filed evidence on affidavit and the same is kept in the record after consideration.  

DECISION WITH REASONS

Point no.1 , 2 & 3  : 

              This case seems to be standing on a different footing. In the instant case, the complainants are not the purchasers of the flat from the O.P/developer. The purchaser of the flat was one Prosenjit Mitra. This Prosenjit Mitra is dead now. According to the complainant, they have acquired right, title and interest to the estate left by the said Prosenjit Mitra and as such they are the sole legal heirs of the said deceased and as being the legal heirs of the said deceased, they are consumers in accordance with the provisions of C.P Act, 1986. 

             It is true that the legal heirs of a consumer are also regarded as “Consumers” in accordance with the provisions of C.P Act, 1986. But, the legal heirs will have to prove by cogent evidence that they have acquired right, title and interest to the estate of the deceased by way of inheritance. It is the claim of the complainants that they have acquired right, title and interest to the estate of the deceased i.e Prosenjit Mitra. So, in the circumstances, there lies heavy burden on the complainants and the complainants will have to prove by cogent materials that they have acquired right, title and interest as legal heirs over the property left by the deceased. Not a single document has been brought on record by the complainant to prove that they have acquired right, title and interest to the estate of the deceased. 

                That apart,  it is not known to this Forum, as to how the complainants are related to the deceased . No genealogical table is also brought on record by the complainants to establish their relation with the deceased. Upon a minute scrutiny of the materials on record it comes to the notice of the 

Forum that the deceased has sometimes been described by the complainants no.1 as brother’s son and sometimes as son in law, vide complainant’s letter dated 17.8.2006, Exhibit-“ C “ to Chief Examination of O.P.

               In the circumstances, we feel constrained to say that this Forum has no jurisdiction to determine right, title and interest of the complainants in respect of the estate left by the deceased Prosenjit Mitra and there being no such cogent documents to prove right, title and interest of the complainants to the said estate, the case appears to be a fit one to be returned to the complainants and the complainants would be given a liberty to file the case again after having obtained a decree for declaration of right, title and interest of them over the estate left by the deceased.  

           

              In the result, the case fails . 

 

 

 

               Hence, 

ORDERED

             That the petition of complaint be returned to the complainant and the complainants are given a liberty to file the case after obtaining a decree for declaration of right, title and interest over the estate of the deceased from a 

Court of competent jurisdiction. 

         Let a free copy of this order be given to the parties concerned at once.    

    President

I / We agree

                  Member 

 

Dictated and corrected by me 

 

            President