This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant that on 16.1.2003 the complainant entered into an agreement of sale in respect of purchase of a residential flat, being no. 4/3 & 4, on the 4^th floor, having an area of 1255 sqft. (SBUA) with the opposite party lying and situated at “PRANUTAN APRATMENT” of 66, D.J.M Sarani, P.O. Bhadrakali, P.S. Uttarpara, Dist. Hooghly, Pin. 712232 and it was agreed that the purchase rate of the said flat to be calculated @ Rs. 650 sqft. along with the proportionate share of common portion stands total consideration of Rs. 8,15,750.00/- and deposited booking amount of Rs. 4,15,750/- for the said flat by way of cash and cheque under money receipts with signature with the opposite party and the consideration amount was financed by the ICICI bank to the developer cum opposite party and the said house building loan has been fully refunded with required interest thereon to the ICICI bank and the complainant received the “No Dues Certificates from the said ICICI bank and having the said loan clearance certificate from the said ICICI bank, the complainant approached to the developer to get registration by signing the deed of conveyance and get the registration the said flat in favour of the complainant and the opposite party assured the complainant to get registration of the said flat within three months and advised to wait for those days and on expiry of three months the complainant once again informed to opposite party and requested to get registration the said flat in favour of the complainant, but the opposite party paid no heed to the issue.

                The complainant also states that on 2.8.2017 the complainant sent a written request to opposite party through registered post, forwarding a copy to the registered office of the developer at 9/2. Lalbazar Street, Kol. 700001 in which the complainant expressed his intention to get registration the said flat within 30 days from the receipt of said letter but the opposite party remained silent on the score and the said letter was received by opposite party on 3.8.2017, but the said requests of complainant made to registered office of opposite party returned undelivered with remarks “Shift” and having no reply from the opposite party, the complainant sent a legal notice through his advocate wherein it was clearly stated that the complainant intends to get registration the said flat in his favour and necessary arrangement of registration of that flat and sign on deed of conveyances are to be performed and it was further stated therein that in the event of expiry of 15 days of receipt of such notice the complainant will take legal shelter for the ends of justice and opposite party still remained silent and refused to allow the complainant to get registration the said flat in favour of the complainant till date and the cause of action firstly arose when opposite party failed to response the representation made by the complainant dt. 2.9.2017 after the expiry of 30 days of receipt i.e. on 3.8.2017 and thereafter legal notice received by the opposite party on 12.9.2017 and continuing to till the date of filing of the instant case.

Complainant filed the complaint petition praying for direction upon the opposite party for registration of the said flat measuring 1255 sqft (SBUA) in question immediately and to pay sum of Rs. 1,00,000/- as damages for negligence and harassment and to pay sum of Rs. 50,000/- for mental agony and to pay also a sum of Rs. 10,000/- for litigation cost and to pay interest of the damages till the date of realization and any other relief/reliefs.

The opposite party contested the case by filing written version denying inter-alia all the material allegations as leveled against him. This opposite party submits and alleges that Somnath Bose, the brother of complainant is a director of the company of the opposite party and Somnath Bose joined the said company in the year 2001 when the project for the said flat was going on and then Somnath Bose approached the opposite party due to need of money and requested the opposite party for arranging a loan in the name of the complainant and upon that request of Somnath Bose the opposite party arranged a loan of Rs. 4,00,000/- and gave a cheque in the name of the company of Somnath Bose namely, Penguin Properties PVT. LTD. and it was agreed that the said loan amount would be paid by him in the capital of the company and thereafter on mutual consent Somnath Bose took two aforesaid flats with an undertaking to repay the price of the flats, but still now he has not paid the said amount and thereafter in the year 2010 Somnath Bose approached the opposite party to register the flat no. 4/4 in the name of the complainant and thereafter the opposite party registered the flat no. 4/4 in the name of the complainant by virtue of a Registered Deed of conveyance being no. 5942 for the year 2010 by taking loan from the UBI and thereafter the opposite party transferred the said amount to ‘BACCHOS’; a partnership firm in the name of the opposite party and Somnath Bose and thereafter in the year 2014 Somnath Bose  brought one Kaushik De and took advance from him in cash and cheque and told the opposite party to register the flat no. 4/3 in the name and also told Kaushik De not to write any name in the cheque given by Kaushik De and Somnath Bose thereafter cashed the aforesaid cheque being no. 713070 on 30.6.2014 in the account of one Tayanika Mukherjee and thereafter the opposite party registered the flat no. 4/3 in the name of said Kaushik De and his wife being deed of conveyance no. 062102249 for the year 2017 and moreover, there was a residential unit at Block D, 1^st floor no. D-101 of the said flat which was converted into commercial unit by the said complainant and Somnath Bose against which the flat owners raised objection and that was the only reason of grudge of the complainant and his brother Somnath Bose  and they approached the opposite party to resist the flat owners and on refusal the complainant and his brother, Somnath Bose started blackmailing the opposite party and has also ravaged all the documents of the partnership business for which the opposite party has lodged an FIR against the complainant and his brother, Somnath Bose being Uttarpara police station case no. 792 dt. 17.9.2017 and out of that grudge Somnath Bose and complainant started pressuring the opposite party to register the said flats in the name of complainant again and the said Somnath Bose by setting his brother being complainant has filed this frivolous case and has also filed a civil suit being Title suit no. 72912/17 before the ld. Civil Judge (Junior Division) at Serampore and the opposite party has already registered the two flats, one in the name of the complainant and another in the name of one Kaushik De who has been brought by Somnath Bose, the brother of the complainant and as such there is no gross negligence, deficiency in service and unfair trade practice on the part of the opposite party. Ultimate opposite party has prayed for dismissal of the case with cost.

Thus, the opposite party has prayed for dismissal of the instant case.

Points for consideration

1. Whether the complainant is the consumer of the opposite party or not?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether there is any deficiency of service and negligence on the part of the opposite party?
4. Whether there is an unfair trade practice on the part of opposite party?
5. Whether the complainant is entitled to get relief as prayed for?

DECISIONS WITH REASONS

Point no. 1

Considering the case of the complainant and the case of opposite party it reveals that complainant mainly has prayed for direction upon opposite party for registering the flat in question and the pleadings of the parties indicate that complainant is a consumer to the opposite party as provided by the provision of  Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986.

Point no. 2

Complainant and the opposite party are residents of district Hooghly and the flat in question also situates within the district Hooghly. The complaint value is within Rs. 20,00,000/- i.e. limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

Point nos. 3, 4 and 5:

All these points are taken up conjointly as those are related to each other for convenience and for brevity of discussion.

                Complainant in his evidence in chief mainly highlighted a replica of the contents of complaint. In fact, he mentioned in his evidence that on 16.1.2003 complainant entered into an agreement of sale with M/S ACROPOLIS BUILDERS PVT. LTD., having its address at 9/12, Lalbazar Street, Mercantile Building, Block C, 2^nd Floor, Kol. 700001 in respect of purchase of one flat being no. 4/3 and 4, at a consideration amount of Rs. 8,15,750/- measuring an area 1255 sqft. situates at 66, D.J.M. Sarani Post Bhadrakali P.S. Uttarpara, Dist. Hooghly with its representative Abhijit Bhattacharjee (opposite party) as being constituted attorney of developer, by virtue of a separate registered power of attorney. Complainant at the time of signing of the said agreement and in subsequent dates deposited cash of Rs. 2,15,750/- and an account payee cheque being no. 438225 dt. 10.4.2013 for Rs. 2,00,000/- drawn on HDFC Bank, Srtephen House Branch, Kolkata. On behalf of developer, on account of said one flat no. 4/3 and 4, and thus, altogether complainant paid 4,15,750/- as per “D” schedule of the said agreement towards the booking fees of said one no. of flat, to the developer’s representative, i.e. opposite party. Opposite party accordingly issued money receipts on account of said cash including said cheque to complainant in respect of one flat no. 4/3 and 4. Complainant also stated that opposite party being constituted attorney of developer company issued a mortgage permission confirmation letter to M/S ICICI Home Finance Company Limited (as duly constituted attorney in this behalf of ICICI Group Enterprise), ICICI Towers, Bandra Kurla Complex, bandra (east) Mumbai 400051 stating categorically therein that opposite party had no objection to ICICI group enterprise giving a loan to complainant, purchaser of the said flat (4/3 and 4) on the 4^th floor of the building in question together with the undivided proportionate share of land. Then ICICI Bank approved the home loan to the complainant, on the said one number of flat which has been fully repaid by the complainant against whole claim of home loan being no. LBCAL 0000374703 in respect of the said property situated at plot no. 142-4/3, Despariya Jatindra Mohan, 4^th floor, Mouza Bhadrakali, Dist. Hooghly and the ICICI Bank having full satisfaction regarding home loan claim issued loan closer letter/ no due certificate to the complainant at the address D.J.M. Sarani, 4^th floor, Bhadrakali, Hooghly. Thereafter complainant repeatedly has expressed his willingness to get register one flat in favour of complainant, but opposite party in spite of assurance to sigh on the deed of conveyance has neglected and avoided to sign on the deed of conveyance and refused to contact further and finally refused to register the said flat in favour of complainant and lastly on 2.8.2017 complainant made written request to opposite party to register the said flat in favour of complainant within 30 days from the date of receipt of the said letter. Thereafter complainant sent legal notice to opposite party. On behalf of the complainant photocopies of memorandum of undertaking dt. 8.1.2004 between one Somnath Bose and Acropolis Building Pvt. Ltd., deed no. 1118 of 2010, documents of ICICI Bank, deed no. 2249 of 2017, bank account, W/S filed in TS 72912/17, objection, F.I.R. no. 792/17, order dt. 11.10.2018 of D.M. Hooghly have been filed.

On the other hand, opposite party in his evidence has categorically narrated that Somnath Bose, brother of complainant is a director of the company of opposite party and Somnath Bose joined in that company in 2001, when the project of the said flat was going on and said Somnath Bose approached opposite party for arranging a loan in the name of complainant. Accordingly, opposite party arranged a loan of Rs. 4,00,000/- and gave a cheque in the name of company of Somnath Bose, namely Penquin properties Pvt. Ltd. Opposite party categorically stated that complainant never gave any advance for any flat and the cheque as stated above by the complainant has not been deposited in the bank account of Acropolis Builders Pvt. Ltd. and it was agreed that the said loan amount would be paid by him in the capital of the company and thereafter on mutual consent said Somnath Bose took two aforesaid flats with an undertaking given by him on 12.4.2004 that price of two flats taken by the complainant from opposite party would be adjusted from the account of Somnath Bose, but still now that has not been paid.

Opposite party also states that thereafter in the year 2010 said Somnath Bose approached opposite party to register the flat no. 4/4 in the name of complainant and opposite party accordingly registered said flat in the name of complainant by virtue of a register deed of conveyance being no. 5942 for the year 2010. Opposite party highlighted another point that if complainant had made payment for the two flats i.e. 4/3 and 4/4, then how could he obtained bank loan for that flat no. 4/4 from another bank. Further opposite party stated that thereafter he transferred the loan amount to “BACCCHOS” a partnership firm in the name of opposite party and Somnath Bose. It is also stated by opposite party that in the year 2014 Somnath Bose brought one Kaushik De and took sale proceeds from Kaushik De in cash and cheque and told opposite party to register the flat no. 4/3 in Kaushik De’s name and also told that the said Kaushik Dey would not write any name in the cheque given by Kaushik De and thereafter Somnath Bose encashed the aforesaid cheque no. 713070 on 30.6.2014 in the account of one Tayanika Mukherjee and thereafter opposite party registered the flat no. 4/3 in the name of Kaushik De and his wife being deed no. 062102249 for the year 2017 and the sale proceeds of the said flat was not deposited in the account of Acropolis Builders Pvt. Ltd.

It is also specifically stated by the opposite party that there was a residential unit at Block D, 1^st floor no. D-101 of the said flat which was converted into commercial unit by the complainant and his brother, Somnath Bose. Moreover, said Somnath Bose started letting the mortgaged flats to different persons and that was the only reason of grudge of the complainant and Somnath Bose and upon refusal by opposite party, the complainant and his brother, Somnath Bose started blackmailing opposite party and also ravaged all documents of the partnership business for which opposite party lodged an FIR against the complainant and his brother, Somnath Bose at Uttarpara P.S. being case no. 792 dt. 17.9.2017 and out of that grudge said Somnath Bose and complainant started pressuring opposite party to register the said flats in the name of complainant again and the said Somnath Bose by setting with complainant had filed this frivolous case and has also filed TS no. 72912 of 2017 at Serampore Court wherein said Kaushik De field his separate written statement stating that the flat no. 4/3 was sold by Somnath Bose by retaining all sale proceeds. It is opposite party who specifically stated that he had already registered the flat no. 4/3 and 4/4 in the name of complainant and Kaushik De and now complainant is harassing him (opposite party) and opposite party flatly denied that complainant never deposited booking amount of Rs. 4,15,770/- for the said flat by way of cash and cheque and the rest of the amount of consideration amount was financed by ICICI Bank. Opposite party also stated that said house building loan has not been fully refunded with required interest thereon by the complainant to ICICI Bank and complainant did not receive “no dues certificate” from the ICICI Bank.

It may be noted that complainant filed written argument. Opposite party has also field written argument.

Considering the materials on record it appears that Somnath Bose, brother of the complainant is a director in the company M/S Acropolis Builders Pvt.Ltd. opposite party and Somnath Bose joined in that company in 2001 when project of schedule flat was going on.

It is evident clearly that complainant filed photocopy of Sale Agreement in question coupled with photocopies and different money receipts issued by opposite party. Complainant also filed one photocopy of a letter issued by Acropolis Builders Pvt. Ltd. addressing to the ICICI Home Finance Company Limited (IHFC). That apart complainant also filed photocopy of a letter issued by ICICI Bank informing complainant that Home Loan has been paid in full and said Bank also certified that said bank has no claim or right anymore whatsoever against complainant and property in question is repeat of said loan. Complainant also furnished photocopy of a letter from his end addressing to opposite party and M/S Acropolis Builders Ltd. requesting for registration of the flat in favour of complainant as loan taken from ICICI Bank has been fully paid. That apart complainant also highlighted photocopy of one legal notice given to opposite party.

Per contra, opposite party also filed a photocopy of a Deed of Conveyance in respect of a flat no. 4/4 on Fourth floor, measuring 800 sq.ft. Super build up area being holding no. 66, Despariya Jatindra Mohan Sarani, P.S. Uttarpara, Dist. Hooghly known as PRANUTAN APARTMENT in favour of complainant.

Opposite party also filed due photocopy of a deed of conveyance in respect of a flat no. 4/3 on the Fourth floor of the building at 66, Despariya Jatindra Mohan Sarani, Bhadrakali, Hooghly in favour of one Smt. Sonali De and Sri Kaushik De.

It may be noted that complainant always tried to highlight that the flat in question being nos. 4/3 and 4, but from opposite party’s end abovementioned photocopy of a deed of conveyance in favour of complainant in respect of a flat no. 4/4 has been filed, but complainant did not put any evidence as to why said flat in question 4/4 has only been registered in favour of complainant in the form of deed of conveyance mentioned hereinabove.

Opposite party also filed photocopy of an F.I.R. and a photocopy of a petition of a complaint u/s 420, 406, 120B, I.P.C. against Somnath Bose and Samiran Bose in the Court of ld. A.C.J.M., Serampore, Hooghly being  Complainant is Abhijit Bhattacharjee (opposite party of the instant case).

Opposite party also filed a copy of W.S. in respect of T.S. no. 72912 of 2017 before the ld. Civil Judge (Junior Division) as Serampore, Hooghly showing the name of plaintiff as Somnath Bose and defdts. as Pranutan Apartment, represented by its President, Sri Kaushik De and others.

Opposite party also highlighted one photocopy of order no. 1105/ J.M. dt. 11.10.2018 of the office of District Magistrate and Collector Hooghly which will speak for itself.

From the above documents filed on behalf of the rival parties, it is crystal clear that complainant has not introduced so many matters which are very essential for proper adjudication of the subject matter in question of this case. Moreover, T.S. no. 72912 of 2017 has already been filed before the concerned ld. Civil Court. This Forum hopes that both parties will place their all papers and documents in clean hands before the concerned ld. Civil Court for appropriate order in respect of property in question.

Further this Forum is of the view that in the above backdrop the case of complainant has been suffering from confusions and inconsistencies. At this juncture complainant cannot get any relief as prayed for inasmuch as opposite party introduced several documents and certainly opposite party has made a strong challenge against the case of the complainant. Moreover, it is pertinent to note that the concerned ld. Civil Court already intervened the subject matter of this case in T.S. no. 72912 of 2017.

It is further to be noted that complainant totally silent in disclosing the name of his brother, Somnath Bose, but, record shows that said Somnath Bose has played many things relating to the subject matter of this case. Nondisclosing of aforementioned complaint’s case and aforementioned T.S. no. 72912 of 2017 from the end of complainant clearly suggests that he has not opened all his cards before this Forum in the form of facts as well as evidence.

However, this Forum is of the view that the case of complainant appears to be sans any substance and is liable to be dismissed.

Hence,

              it is,

ordered

that the instant case be and the same is dismissed on contest without cost.

Let copy of this order be supplied free of cost to the parties/ their ld. Advocates on record by hand with proper acknowledgment/ sent by ordinary course for information and necessary action.