In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.

Case No. CC/33/2018.

Date of filing: 12/03/2018.                     Date of Final Order: 29/05/2024.

Chaitali Das,

w/o Somnath Das,

of Nilkantha Sarkar Street,

Bagbazar, P.O. and P.S. Chandannagore,

Dist. Hooghly.                                                                                             ……..complainant

  -vs  -

Debiprosad Chatterjee @ Babulal

S/O Shibananda Chatterjee,

Of Senpara, P.O. Buroshibtala,

P.S. Chinsurah, Dist. Hooghly.

Present residing at- flat no. A, 1^st floor,

“Parabase” apartment, Palpara,

P.O. & P.S. Chandannagore,

Dist. Hooghly, PIN. 712136.                                                           ….…..opposite party     

Before:            President, Shri Debasish Bandyopadhyay.

                          Member,  Debasis Bhattacharya.

                         Member, Babita Chaudhuri.

FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainant stating that the complainant offered to purchase the flat described in the schedule and constructed by O.P.  OP agreed to sell the flat in question to this complainant. So, an agreement for sale was executed on 1.3.2017. Op agreed to sell the flat at a consideration money of Rs. 10,00,000/-. In accordance with the agreement for sale the complainant paid Rs. 50,000/- through cheque subject to complete the sale transaction within 6 months from the date of the agreement. Subsequently the op received Rs. 2,00,000/- from the husband of the complainant and issued a money receipt. Again on 22.3.2017 the op received two cheques from the complainant as final payment  and the said cheques also encashed by the op and by signing in the last page of the agreement admitted the receipt of cheque. Complainant paid Rs. 10,00,000/- to the op as consideration money and requested to execute and register the flat in question but the op avoided the complainant. The op neither returned Rs. 10,00,000/- to the complainant nor registered the flat in favour of the complainant. So, the complainant getting no alternative filed the instant complain praying reliefs as stated in the prayer portion of the complaint.

Complainant filed the complaint petition praying direction upon the opposite party to execute and register deed of sale in favour of the complainant comprising the flat described in the schedule of complaint alternatively directing the op to refund Rs. 12,00,000/- along with 6%b interest from the date of filing of the case till realization to the complainant and to pay a sum of Rs. 1,00,000/- as compensation and to pay the litigation cost and to give any other relief(s) as deem fit and proper.

Defense Case:-  The opposite party contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the complainant filed the instant petition by suppressing the actual facts and circumstances. The op became the owner of 3 Cottah 3 Chatak property in RS plot no. 7, LR plot no. 9, RS Khatian no. 4 and LR Khatian no. 560 in Mouza and PS Chandannagore by dint of deed of gift from the previous owner Sobha Pal. The op is a priest by profession and he performed the nitya puja of the family deity of Sobha Pal who was very pleased with the care and dealings and being satisfied she executed a deed of gift being no. 1680 of 2013 in favour of the op who after becoming the owner was facing hardship for maintenance of his property and he decided to demolish the old building and raise a multi storied building thereupon and after taking loan from the bank he made construction as per the sanction plan of Chandannagore Municipal Corporation by engaging laborers, contractors and masons.

The complainant and her husband approached the op for purchasing one flat and on their advice and guidance an unregistered sale agreement was executed on 1.3.2017 and the op being a priest had got no experience about the property affairs specially raising a multi storied building and transferring the units of the same. The complainant declared that one of her relatives is a practicing advocate and she will take the responsibility of the preparation of the sale agreement and the op accepted the said proposal and consented to the same and in furtherance  the aforementioned sale agreement was prepared at the instance of the complainant and the op without going through the content thereof in detail, executed the same. Time was essence to the contract as agreed in between the parties for a period of six months only and it was also agreed that if the sale deed is not registered within the stipulated period, the op should refund the consideration received by him. The complainant failed to get the sale deed registered within the tenure of the said agreement though she had paid the consideration amount agreed between the parties and the agreement expired by efflux of time and the contractual obligation in between the parties was automatically extinguished since the time was essence of the contract.

The op thereafter informed the complainant that since the agreement has already lost its force, he is agreeable to refund the amount paid by the complainant but shall not extend the period any further  but the complainant for that best reasons known to her, ignored the request of the op and became silent. All on a sudden the complainant on false and frivolous allegations lodged a written complaint against the op and his wife before the officer in charge of Chandannagore police station  on 9.1.2018 and on the basis of such complaint Chandannagore PS case no. 4 of 2018 was registered under Sections 323/354/427/448/379/420/406 of the Indian Penal Code and in connection with the aforesaid case, the op was arrested by police on 31.1.2018 and in the aforesaid complaint the complainant stated her actual address of residence at Nilkanta Sarkar street, Bagbazar, PS Chandannagore, Dist. Hooghly.

The op has been unduly harassed by lodging of false complaint and detention by police and the op was compelled to file application for bail under Sexc. 439 Cr. P.C before the Hon’ble High Court at Calcutta vide C.R.M. no. 1540 of 2018 and the Hon’ble High Court was pleased to release the op on bail subject to the condition mentioned in the order dt. 20.2.2018. In the said order the Hon’ble High Court also observed that the dispute between the parties is of a civil nature which is found from the agreement for sale between the parties.

During the period of judicial custody of the op in connection with the criminal case, the complainant by taking the advantage of his as well as his wife’s absence, had forcefully with the help of some antisocial persons entered into the schedule flat on 12.2.2018 and illegally stored the household articles in the schedule property and the complainant was never handed with possession in part performed of the sale agreement but she is an illegal entrant in the schedule property/ flat and she does not have any legal authority to possess the same.

The wife of the op after getting the anticipatory bail raised objection against the illegal entry of the complainant in the schedule flat and requested her to leave the same but the complainant refused to do so. The op after being released on bail, decided not to act in furtherance of the sale agreement with the complainant in view of her illegal activities and lodging of criminal case leading to arrest of the op and by letter dt. 10.4.2018 the op informed the complainant that the so called unregistered agreement has been rescinded. The op further requested the complainant to quit and vacate the schedule flat and hand over the keys and further requested to provide Debi Prasad Chattopadhyay bank account particulars so as to enable the op to transfer the amount lying with him received on the basis of revoked sale agreement the complainant did not comply with the request of party the op and she denied to vacate the schedule property in which the complainant have got no legal right to continue in possession and she sent a reply to that effect on 13.4.2018 and the op is still agreeable to refund the entire amount paid by the complainant.

The op was compelled to file Title Suit no. 59 of 2018 before the Civil Court Senior Division Chandannagore praying for declaration that the unregistered sale agreement dt. 1.3.2017 have got no legal force upon its express recession in writing since the agreement expired by efflux of time stipulated in the said agreement and further relief for eviction and recovery of khas possession has been prayed for. In the aforementioned suit the complainant has already appeared and is contesting the same. When the legality validity of the agreement dt. 1.3.2017 is sub judice before the appropriate Court of Law, this Forum have got no jurisdiction to entertain the application under Sec 12 on the basis of the said agreement which has been rescinded and if any order is passed by this Forum by relying upon the agreement dt. 1.3.2017, the same may lead to contradiction with the findings of the Civil Court of Law. Thus, the instant case should be dismissed with costs. 

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Chandannagore, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 20 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 11 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 24A of the Consumer Protection Act, 1986 is very important and according to the provision of Section 6924A complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (d) of the Consumer Protection Act, 1986 it appears that this case is maintainable and according to the provision of Section 2 (1)(d) of the Consumer Protection Act, 1986. Complainant is a consumer in the eye of law.

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that the complainant has not disclosed the fact that he is in possession of the suit flat and it has also not been disclosed by the complainant that the agreement for sale which was notarized has been terminated by the OP.  It is also suppressed by the complainant that there is a civil suit being no. T.S. 59/2018 pending before Ld. Civil Judge Sr. Division Chandannagore and the said Civil Case has been filed by the OP of this complaint case against the complainant for recovery of Khas possession of the suit flat.  It is also reflected from the case record that the said civil case is still pending and it has not yet been finalized.  In view of such position if the Ld. Civil Judge Sr. Division decreed the above noted Civil Case in favour of the Op the award which is to be passed in this case would be frustrated.  In this regard it is important to note that the quasi-judicial authority shall not  pass any such order which cannot be executed and for that reason if at all this complaint case is decreed but the reverse judgment is passed by the Ld. Civil Judge Senior Division, there would be complexity / multiplicity of cases.  In view of such position and as the complainant has suppressed the above noted facts in his petition of complaint, this District Commission is of the view that the complainant has not come before this District Commission in clean hand and so the complainant is not entitled to get any equitable relief from this quasi-judicial authority.

Under this position this District Commission is of the view that the complainant is not entitled to get any relief in respect of points of consideration no.4 and 5 which are the vital issues of this complaint case.

Thus it is crystal clear that complainant is not entitled to get any relief in this complaint case and so it is liable to be dismissed.

In the result it is accordingly

ordered

that the complaint case being no. 33 of 2018 be and the same is dismissed on contest.

No order is passed as to cost.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.