This appeal is directed against the Final order delivered by Ld. D.C.D.R.F., Malda on 23.12.2019 in connection with Consumer Case No 11 of 2015. The fact of the case in nutshell is that there was an agreement between the appellant and the respondent by executing the deed dated 30.06.2011 to the effect that the appellant M/S Kran Enterprise through its partners has agreed upon to sale a shop cum garage in favour of the respondent mearing 173.38 sq. ft. in the ground floor comprised in LR Plot No 1933 appertaining to LR Khatian No 113/149 in ward No 2 of English Bazar Municipality, by virtue of such agreement a cheque was issued in favour of the appellants by the respondent to the tune of Rs. 1,50,000.- as consideration money and the said cheque was encashed by the appellants. Thereafter, the possession was delivered in favour of the respondent in respect of the said shop cum garage on 20.07.2014 and the respondent got the possession of the said shop cum garage room since 20.07.2014. Subsequently, the respondent in very occasion approached the appellants to proceed to have a sale deed by registry which was not done on the part of the appellant and for that reason the respondent as Consumer Complainant registered the instant Consumer Complaint for asking the appellants to have registration of the said shop cum garage room in favour of the respondent and prayed for compensation. The said Consumer Complaint was contested on the part of the appellant cum Opposite Parties by filing the W.V and contended inter-alia that the case was bad in law for non-joinder of necessary party, that the instant dispute was not tenable under the provisions of Consumer Protection Act, that the respondent/complainant has no cause of action to sue. The definite case of the appellant/opposite parties is that the Complainant have had no intention to purchase the said garage and he proposed to adjust his advance money in a new proposal for purchasing the flat in that complex. The price of the said flat was fixed at Rs. 12,50,000/- and out of which total 11 Lakh was paid and the rest Rs. 1,50,000/- was paid by cheque subsequently on 29.05.2011 in order to pay the balance money of the said flat value. The Complainant took a mal-practice at the time of payment of such Rs. 1,50,000/- as the deed was already executed in favour of the Complainant by the Opposite Parties on full faith after accepting Rs. 11 Lakh and the due amount of Rs. 1,50,000/- was subsequently adjusted on 29.5.2011 but now the Complainant claims that he has paid separately Rs. 1,50,000/- for purchasing a garage cum shop room which is utterly false and manufactured story. The further case of the Opposite Partis is that the said garage cum shop room actually was sold out by the appellant to one Amitabha Chatterjee. But the Complainant/Respondent has forcefully occupied the said shop room cum garage and comes to the Forum for some unlawful gain. Ld. Forum after recording evidences and after hearing both sides and in consultation with the documents has come into a conclusion that in spite of receiving Rs. 1,50,000/- for the shop room cum garage from the Complainant/Respondent, the O.P was duty bound to get registration of the said shop room in favour of the Complainant/Respondent by executing the sale deed and he has intentionally defrauded the bonafide purchasers and some sort of deficiency of service were there on their part and for that reason the instant Consumer Dispute was adjudicated in favour of the Complainant/Respondent. Being aggrieved with this order this appeal follows on the ground that the order of Ld. Forum was full of errors and miscarriage of justice was there and the observations of Ld. Forum based on misconception of fact and law and liable to be set aside. The appeal was registered in due time and the notice of appeal was sent to the Respondent/Complainant who has contested the case through Ld. Advocate Mr. J.N. Chowdhury. The appeal was heard in presence of Ld. Advocates of both sides and they have filed also the W.N.A. The case of the appellant was conducted by Ld. Advocate Mr. D. Banerjee.
Decision with reasons
At the time of hearing the appeal Ld. Advocate of the appellant mentioned that one Amitabha Chatterjee in respect of the said subject matter of the case has filed a title suit against the respondent for recovery of khas possession of the said garage cum shop room and the said suit still pending before the Competent Civil Court and for that reason no consumer case is tenable under the provisions of Consumer Protection Act, 1986. He further argued that the agreement of sale dated 30.06.2011 was not registered while after the amendment of the Registration Act the registration of agreement to sale deed is compulsory one and for that reason the case based upon the unregistered deed of agreement to sale is not at all tenable in the eye of law. Ld. Advocate filed the plaint copy of Civil Suit Bearing No 5 of 2015 pending before the Ld. Civil Judge Senior Division, Malda. After, going through the said plaint of the Civil Suit it appears that the appellant has sold out the instant garage cum shop room to the Respondent/Complainant on 06.02.2014 by executing a sale deed which was registered on 07.02.2014 before the ADSR, Malda. Now, the question is whether the unregistered agreement of sale deed should be admissible in evidence in the proceedings under Consumer Protection Act, 1986 and the Ld. Advocate of the respondent by citing two judicial decisions of Hon’ble Supreme Court of India as follows-
- Sitaram Bhama Vs Ramavatar Bhama on 23.03.2018 in SLP© No 1100067 of 2017
- Kale & Others Vs Deputy Director of Consolidation
On perusal of the said valuable Judgements of Hon’ble Supreme Court of India it is settled that in any Civil dispute where registration of a deed could not be done in due course such document if not disputed by the other side may be admissible in evidence for collateral purposes provided the person relied upon the document shall take endeavor to have impound it by paying the requisite stamp duty. In this score Ld. Forum in the Judgement and Final Order observed that in spite of the fact that after amendment of West Bengal Registration Act the agreement of sale deed shall have to be registered but even non registration of agreement of such sale deed can be used as a collateral purpose. In this case the agreement to sale has not been denied by the Appellant/Opposite Party during the course of hearing before the Ld. Forum. Secondly, the fact of encashment to the cheque to the tune of Rs. 1,50,000/- issued by the Complainant/Respondent also was not denied on the part of the Appellant/O.P. and most important factor is that the possession of the garage was delivered in favour of the Complainant/Respondent. The Civil Suit is pending for recovery of fast possession filed by one Amitabha Chatterjee against the Respondent/Complainant. The subject matter of the said Civil Suit is quite different from the nature of the case of the instant Consumer Dispute. Here, in this Consumer dispute case the Complainant/Respondent claims that he has purchased the said garage by paying Rs. 1,50,000/- and a deed of agreement was executed on the part of the seller and by virtue of the payment of consideration money and agreement to sale deed the Respondent/Complainant has been possessing the said garage cum shop room for his personal occupation and he wanted to have registration of the said shop room cum garage by a sale deed to be executed by the Appellant/O.P. While, the Appellant/O.P. was reluctant to execute the same and for that reason he has filed the instant Consumer Case for getting registration of the said sale deed and compensation for deficiency of service on the part of the O.P/Respondent for not executing the sale deed in due time. While, in the Civil Case Mr. Amitabha Chatterjee relied upon the sale deed executed in his favour subsequently by the O.P/Appellant in spite of the fact that at that point of time the said garage cum shop room was under the possession of the Complainant/Respondent and for that reason he has filed the Civil Suit for getting recovery of Khas possession of the said garage cum shop room. So, there is no chance of conflict of decisions between the two adjudicating Forums. Rather, Mr. Amitabha Chatterjee is not a necessary party to this Consumer dispute as because at the time of purchasing the said shop room cum garage and taking delivery of possession Amitabha Chatterjee was nowhere in the picture. He was the subsequent purchaser as alleged and Complainant/Respondent had no bounded duty to implead Mr. Amitabha Chatterjee in the Consumer Case and Amitabha Chatterjee was not the necessary party. It is pointed out at the time of argument by the Ld. Advocate of the appellant that as per Consumer Complaint the delivery of possession of the shop room cum garage in favour of the respondent was held on 20.07.2014 while the appellant executed the deed of sale in favour of Amitabha Chatterjee for the same subject matter on 06.0.2014 that is earlier to the delivery of possession of the shop room in favour of the respondent.
After, hearing both sides it is revealed that as per pleading of the case the delivery of possession in favour of Complainant was held on 20.07.2014 while the execution of sale deed in favour of Amitabha Chatterjee took place for the same garage cum shop room on 06.02.2014 but the pleading of Amitabha Chatterjee in Civil Suit clearly speaks that in spite of the said deed dated 06.02.2014 he could not get possession of the shop room and for that reason he filed the title suit for recovery of khas possession against the respondent. So, this fact also suggests that by virtue of agreement of sale deed dated 30.06.2011 the respondent/Complainant has got possession over the said garage cum shop room before arrival of Amitabha Chatterjee in the picture.
Rather, the provisions of Section 3 of the C.P Act, 1986 also supports the case of the Complainant/Respondent who has accrued enough right to avail the protections of right of a bonafide Consumer enunciated in the provisions of Consumer Protection Act, 1986 and in our view the Ld. Forum has rightly observed the situation and the Ld. Forum has adjudicated the dispute in a prudent manner, no apparent error is reflected in the order of the Ld. Forum and for that reason no interference is required in the appellate stage against the said order.
Hence, it’s ordered
That the instant appeal be and the same is hereby dismissed on contest without any cost.
Let the order be communicated to the Ld. D.C.D.R.F., Malda.
