20......17.12.2021....
Today is fixed for delivery of final order. Final order containing 4 pages is ready. It is sealed, signed and delivered in open Commission.
It is ordered that,
ORDERED
That the complaint case be and the same is hereby dismissed on contest against the O.P. without cost.
Let copies of final order be supplied to both the parties free of cost as per rules.
The Final order also be made available in www.confonet.nic.in .
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
SOUTH 24-PARGANAS
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C.NO. 187 OF 2019
DATE OF FILING DATE OF ADMISSION DATE OF FINAL ORDER
13.11.2019 19.11.2019 17.12.2021
Present : President : Asish Kumar Senapati
Member : Sangita Paul
COMPLAINANT : Shib Charan Nath, S/O-Late Sadananda Nath,
Residing at 39, Haripada Dutta Lane, P.S. – Jadavpur, Kolkata – 700033.
Versus
O.P/O.Ps : Md. Ajijul Ali, S/O-Late Md. Yakub Ali,
Developer / Promoter of Sole Proprietor Firm namely Rakhee Construction, having its office at 169 Prince Anwar Shah Road, P.S. – Jadavpur, Kolkata – 700033.
Advocate for the complainant : Chinmoy Chakraborty
Advocate for the O.P. : Radha Jaiswal
Sri Asish Kumar Senapati, President
This is a complaint filed by One Sri Shib Charan Nath (hereinafter referred to as the complainant) against Md. Ajijul Ali (hereinafter referred to as the O.P.) praying for a direction to pay Rs. 19,50,000/-, 50% accommodation over construction over the land of the complainant, cost of damage Rs. 10,000/- and litigation cost of Rs. 10,000/- against the O.P. alleging deficiency in service.
The sum and substance of the complaint is as follows:
The complainant being owner of 5 Kathas 7 Chhataks of land in plot number 1944 of Mouza-Kumrakhali entered into an agreement with the O.P. on 25.07.2005 and the O.P. agreed to deliver 50% of construction over the property of the complainant and a power of attorney was executed by the complainant in favour of the O.P. That the O.P. got sanction of building plan from the Rajpur Sonarpur Municipality. That the complainant came to know that the O.P. delivered accommodation to third parties without giving 50% share to the complainant. That the complainant revoked his power of attorney by registered deed of revocation dated 10.03.2011 and the fact was intimated to the O.P. through registered post with AD. That the O.P. filed T.S. No. 88 of 2015 before the Ld. Civil Judge, Junior Division, 2nd Court, Baruipur. But the same was dismissed for default on 23.09.2019. That the cause of action arose on 13.10.2019 when the complainant demanded amount as well as 50% accommodation but the O.P. threaten him with dire consequences. Hence, the complainant has filed this case praying for reliefs.
The O.P. contested the case by filing W.V. on 19.12.2019 contending that the complainant filed a consumer case being no. 240 of 2014 before the Ld. D.C.D.R.F. at Alipore on the self same subject matter and the case was dismissed on 05.11.2014. It is the specific case of the O.P. that both parties entered into an agreement on 25.07.2005 and the complainant was agreed to receive 45% share out of total transaction money after completion of the full proceeding of the sale of all flats. That the complainant revoked the power of attorney in favour of the O.P. on 10.03.2011 causing huge loss of the O.P. That the complainant is not a consumer and he is not entitled to get 50% accommodation of the construction over the land in question. That the O.P. prayed for dismissal of the complaint.
On the basis of the above versions, the following points are framed for proper adjudication of the case :-
- Is the case maintainable?
- Is the complainant entitled to get any relief against the O.P., as prayed for?
DECISION WITH REASONS
Point Nos. 1 & 2 :-
The Ld. Advocate for the complainant submits that the complainant is a consumer and the case is maintainable against the O.P. It is contended that the O.P. has deficiency in service. It is urged that the present case is not related with CC Case No. 240 of 2014.
In reply, the Ld. Advocate for the O.P. submits that the case is not maintainable and it is barred by resjudicata. It is contended that the CC Case No. 240 of 2014 was dismissed on 05.11.2014 and the complainant has not challenged the said order before the Higher Forum. It is submitted that the complainant is not entitled to get any relief.
We have gone through the materials on record and considered the submission of both sides. The O.P. has asserted that the complainant filed CC Case No. 240 of 2014 before the D.C.D.R.F. at 24 Parganas (South) on the self same subject matter and the same was dismissed on 05.11.2014 with a liberty given to the complainant to take shelter in the Ld. Civil Court, if so advised. He also filed a photocopy of certified copy of final order dated 05.11.2014 passed by the Ld. D.C.D.R.F., South 24 Parganas in CC Case No. 240 of 2014. There is no denial by the complainant that the CC case No. 240 of 2014 is on the self same subject matter of the present complaint case. Therefore, we find that the complainant filed the present case knowing fully well that CC Case No. 240 of 2014 which was filed on the same ground was dismissed on 05.11.2014. The complainant cannot file complaint on the self same subject matter and cause of action if the same is decided by a competed authority. In the present case, the complainant has filed the case with a view to harass the O.P. We think that the complaint case is not maintainable and the complainant is not entitled to get any relief against the O.P.
Both the points are thus disposed of.
In the result, the complaint case fails.
Fees paid are correct.
Hence,
ORDERED
That the complaint case be and the same is hereby dismissed on contest against the O.P. without cost.
Let copies of final order be supplied to both the parties free of cost as per rules.
The Final order also be made available in www.confonet.nic.in .
Dictated and corrected by me
President
