Date of filing: 31/10/2019
Date of Judgment: 03/07/2023
Mrs. Sashi Kala Basu, Hon’ble President.
This complaint is filed by Mrs. Rekha Roy under section 12 of the Consumer Protection Act, 1986, against opposite parties (referred as OPs hereinafter) namely (1) Dr. Surajit Sen (2) Dr. Abhijit Sen (3) M/s. Trio Friend and Associates a partnership firm represented by its partners namely (4) Smt. Paramita Ghosh (5) Sri Debojit Chatterjee and (6) Smt. Subhra Mukherjee alleging deficiency in service on the part of OPs.
The case of the complainant in short is that OP Nos. 1 & 2 being owners entered into a development agreement with OP 3 being represented by OP 4 to 6 and consequent to the said development agreement OPs entered into an agreement for sale dated 31/03/1999 to sell a car parking space as described in schedule of the said agreement to the complainant at a total consideration price of Rs. 40,000/-. Complainant has paid entire consideration price and in the year 2002 the possession of the said car parking space has also been handed over to the complainant. But no possession letter was issued. Thereafter complainant several time requested the opposite parties for registration of the sale deed but they paid no heed. So the present complaint has been filed praying for directing the opposite parties to execute and register the deed of conveyance and to issue the possession letter, to pay sum of Rs. 50,000/- as compensation and Rs. 25,000/- as litigation cost.
OP No. 5 has only contested this case contending specifically that the complainant has suppressed the material fact. It is contended that a cancellation agreement was executed on 02/08/2007 and the complainant has already received back the sum of Rs. 40,000/- paid by her. There is no question of handing over of possession to the complainant neither issuing of any possession letter since agreement for sale dated 31/03/1999 entered into between the parties was subsequently cancelled. So the OP 5 has prayed for dismissal of the case with exemplary cost.
Other OPs did not turn up on service of notice and thus the case has been heard exparte against them.
During the course of the evidence complainant filed examination in chief on affidavit followed by filing of questionnaire by the OP 5 and reply by the complainant. OP 5 also filed affidavit in chief which was followed by filing of questionnaire by the complainant and reply by OP 5. Ultimately argument has been heard. Both parties have also filed brief notes of argument.
So the following points require determination:-
- Whether there has been any deficiency in rendering of service on the part of OPs.
- Whether the complainant is entitled to the relief as prayed for?
DECISION WITH REASONS
Both the points are taken up together for discussion in order to avoid repetition. In support of her claim, complainant has filed photocopy of the agreement for sale dated 31/03/1999 but she has not filed the original agreement in spite of the direction to file the original. However, it is evident from the written version that OP 5 has not denied execution of the said agreement dated 31/03/1999 but it is his specific contention that subsequently the said agreement for sale was cancelled by a deed of cancellation dated 02/08/2007. During the course of evidence, a specific question has been put by OP 5 to the complainant as to whether she had entered into a cancellation deed and had put her agreement on the said cancellation agreement dated 02/08/2007. In her reply complainant has agreed that she had entered into cancellation agreement. However, refused to say anything whether she had signed in the cancellation agreement. It is further evident from the reply of the complainant to the questionnaires filed by the OP 5 that she has admitted that her Ld. Advocate might have received back Rs. 40,000/-. However she has stated that he did not hand over the same to her. So the abovementioned reply of the complainant is very categorical that a cancellation agreement was entered into between the parties cancelling the agreement for sale dated 31/03/1999 which is the basis of claim made by the complainant in this case. OP has also filed the copy of the said cancellation agreement or cancellation deed which indicates that the agreement for sale entered into between the parties on 31/03/1999 was cancelled and Rs. 40,000/- paid by the complainant towards consideration price was refunded to the complainant. If that be so than as the said agreement for sale was already cancelled and the money paid by the complainant of Rs. 40,000/- has also been refunded to her, complainant is not entitled to any relief and thus the present complaint is liable to be dismissed.
Hence
ORDERED
CC/559/2019 is dismissed on contest against OP 5 and exparte against other OPs.
