Judgment : Dt.22.8.2017

Mrs. Balaka Chatterjee, Member

            This petition of complaint is filed under Section 12 of C.P.Act, 1986 by Kanaklata Mondal, Sweta Mondal and Maynak Mondal alleging deficiency in service on the part of the OP (i) Mrs. Mamata Biswas, (ii) Smt. Durga Das and (iii) Smt. Mina Das.

             Case of the Complainant in brief is that the Complainant No.1 is the widow of Late Barun Mondal and Complainant No.2 & 3 are the daughter and son of Late Barun Mondal. The OP No.1 is grand-daughter of Late Rajmohan Das, OP No.2 is daughter-in-law of Lt. Rajmohan Das and OP No.3 is daughter of Late Rajmohan Das. It is stated by the Complainant that the said Barun Mondal entered into an agreement for development with the said Rajmohan Das to develop a piece of land situated at Plot No.23/A, Diamond Harbour Road, P.s.- New Alipore, Kolkata-53, which is at present known as 15/4, Sahapur Colony (East), P.S.-New Alipore, Kolkata-700 053, Dist.-South 24-Pgs, by constructing a G+III storied building under certain terms and conditions. It is further stated by the Complainant is that owing to lack of experience he could not complete the project as only a portion of that project had been done by him and thus an amount of Rs.3,35,000/- had been invested on the same project by him. Subsequently, he entered into an agreement for sale with the said Rajmohan Das vide which Rajmohan Das agreed to sale him a flat of that project on payment of further amount of Rs.2,00,000/-. The Complainant further stated that the said amount was paid to Swapan Das, son of said Rajmohan Das. It is the specific allegation of the Complainant is that in spite of receiving the agreed amount and continuous persuasion from the end of the predecessor-in-interest of the Complainants the predecessor-in-interest of the OPs did not deliver the agreed flat which has been described under the schedule of petition of complaint. Barun Mondal lodged a complaint on 8.12.2005 with the local P.S. and filed title suit being No.8 of 2006 before the 2^nd Civil Judge at Alipore and also obtained an order of injunction against which Rajmohan Das filed an appeal, but, the appeal was dismissed. Subsequently, Rajmohan Das, Swapan Das and Barun Mondal had died and successors-in-interest of Barun Mondal filed the instant case praying for direction upon the OP to deliver possession of the said flat mentioned under the schedule and to register the said flat in favour of the Complainants, alternatively, to refund Rs.5,35,000/- along with compound interest @ 12% to be calculated annually from the time of execution agreement for sale.

 The OPs contested the case and filed written version stating, inter alia, that the subject matter of the instant case is also the subject matter of civil suit being Title Suit No.8 of 2006 filed by the predecessor-in-interest of the Complainants Barun Mondal (since deceased) against the predecessor-in-interest of the OPs Rajmohan Das (since deceased) and the prayers of the said title suit were as follows:-

1. A decree for declaration that the plaintiff is entitled to the said ground floor flat of the said building as specially mentioned in the schedule of the plaint.
2. A decree for declaration that the defendants are not entitled to the said ground floor flat.
3. A decree for permanent injunction restraining the defendants and their men and agent for not to disturb the plaintiff to enter or move the said ground floor flat.
4. Costs;
5. Such further or other relief/s

It is further stated in the written version that said Rajmohan Das executed a Will in respect of the property including the property in question and in respect of the said Will Mamata Das who is now Mamata Biswas, the OP No.1 of the instant case, had filed a probate case being OS No.18 of 2014 in the Court of the Ld. District Judge at Alipore which was subsequently transferred to the 11^th Court of Ld. Additional District Judge and numbered as OS No.4 of 2014 and the same is pending.

It is further contention of the opposite parties that the said Barun Mandal entered into a development agreement to construct a building at a piece of land situated at 15/4, Sahapur Colony (East), P.S.-New Alipore, Kolkata-700 053, which was owned by the said Rajmohan Das and hence status of the said Barun Mondal was developer and therefore he cannot be considered as a consumer under the said land owner.

Both sides adduced evidence on affidavit followed by cross examination in the form of questionnaire and reply thereto respectively.

In course of hearing both sides filed brief notes of argument narrating the facts which are stated in the petition of complaint and in written version.

The Complainant have relied upon the following decisions reported in-

1. AIR 1987 SUPREME COURT 1353 in Civil Appeal No.460 of 1987 Dt.19.2.1987 (arising out of Spl. Leave petition (civil) No.12980 of 1986)
2. AIR 2000 RAJASTHAN 353 (M/S Rashtriya Yuva Udhyog VS Smt. Dheeraj Kanwar).
3. AIR 1983 SUPREME COURT 676 (Civil Appeal No.10 of 1970 Dt.8.4.1983)
4. AIR 1987 GUJARAT 220 (Radhakrishan Biharilal V Chatursingh Govindsingh Thakar).

On the other hand the opposite parties relied upon the decision passed by Hon’ble NCDRC in the case of Manjit Gupta VS Oberoi Realty Ltd. & reported in [2017 (2) CSPR 566 (NC)].

            Subsequently on compliance of the order being No.17 dt.29.6.2017 passed by this Forum the Complainant has furnished copy of the order dt. 3.08.2017 passed by Ld. Civil Judge (Jr. Divn.) 2^nd Addl. Court in respect of TS 8 of 2006.

Points for determination

1. Whether the case is maintainable before this Forum in its present form?
2. Whether there is deficiency in service on the part of the opposite parties?
3. Whether the Complainant is entitled to the relief as prayed for?

Decision with reasons

Point No.1

            The Complainants have filed this case alleging fault in manner of performance in respect of terms and conditions of an agreement dt.26.3.2001 executed by and between predecessor in interest of the Complainant, namely, Barun Mondal (Since deceased) and predecessor in interest of opposite parties, namely, Rajmohan Das (Since deceased) in respect of hiring housing construction service to be provided by the predecessor in interest of the opposite parties. It is evident that the nature of dispute is a Consumer dispute which is admissible/ maintainable under C.P.Act.

            However, the opposite parties raised a point that since the predecessor in interest Barun Mondal filed a title suit being No.T.S.8 of 2006 before Ld. Civil Judge on the self same issue the instant case is not maintainable in its present form.

            It is evident from the order dt. 3.8.2017 passed by Ld. Civil Judge (Jr. Divn.) 2^nd Addl. Court Alipore dismissing the Title Suit being No.TS8 of 2006 being abated there is no bar to entertain the instant case under the C.P.Act.

            Considering the above mentioned aspects, we are inclined to hold that the instant case is maintainable in its present form.

            Point No.1 is decided accordingly.

            Point Nos.2 & 3 – Both points are taken up together for comprehensive discussion and decision.

            It is evident that predecessor in interest of the Complainant Barun Mondal (Since deceased) entered into an agreement for sale dt.26.03.2001 with the predecessor in interest of the opposite parties (since deceased) in respect of a self contained flat on payment of Rs.2,00,000/- by the Barun Mondal to Rajmohan Das.

            It is further evident from the affidavit sworn by Swapan Kr. Das, son of Late Rajmohan Das that he had received Rs.2,00,000/- from Barun Mondal towards consideration for the suit flat in respect of TS 8 OF 2006 and the said suit flat in the flat in question in the instant case. Swapan Kumar Das who is none other but son of said Rajmohan Das. It is stated that subsequently, said Swapan Kumar Das had died and the present opposite parties are remaining as successor in interest of the said Rajmohan Das.

            As regards the issue raised by the opposite parties as to the status of Barun Mondal (Since deceased) i.e. being Developer he cannot be considered as a consumer since he entered into Agreement for Development to construct a building at a piece of land owned by Rajmohan Das (Since deceased). We observed that the said development agreement was executed on 1.11.1998 but subsequently on 26.3.2001 an agreement for sale by and between Barun Mondal and Rajmohan Das was executed vide which Rajmohan Das agreed to sale a proposed self contained flat as mentioned in the agreement for sale to Barun Mondal.Therefore, it is evident that subsequently, by virtue of agreement for sale dt.26.3.2001 Barun Mondal agreed to hire housing construction service in respect of a flat situated at 15/4, Sahapur Colony, P.S.-New Alipore, Kolkata-700 005 and thus he is considered to be consumer under Rajmohan Das who agreed to provide him the housing construction service. The instant case has arisen in respect of violation of the  terms of the agreement dt.26.3.2001. Hence, this is maintainable.

            It is stated that the said Rajmohan Das executed a Will in respect of his all properties. It is further stated that the OP No.1 (who is constituted attorney of OP Nos.2 & 3) filed a probate case being No. OS 4 of 2014 in respect of the property of Rajmohan Das which includes the Housing Project in question. It is well settled that the transfer of liability goes parallel with the process of transfer of asset to the successor in interest. Therefore, the opposite parties are under obligation to discharge their liabilities in respect of claim made by the Complainants viz. the successor in interest of Barun Mondal.

            Although the opposite parties have stated in their evidence on affidavit that there are other legal heirs of deceased Rajmohan Das but they did not disclose names of those legal heirs of Rajmohan Das (since deceased) we are inclined to draw adverse presumption in this regard.

            Rulings of the National Commission relied by the opposite parties is not applicable to the instant case since the same is of different context.

          Point Nos. 2 & 3 is decided accordingly.

            Under such state of affairs we are of opinion that it will be just and proper if the opposite parties refund Rs.5,35,000/- to the Complainants with interest @ 10% p.a. till realization thereof.

            In the result the petition of complaints succeed.

            Hence,

ordered

            That CC/454/2016 is allowed on contest but without any order as to costs.

            The opposite parties are directed to refund Rs.5,35,000/- with interest @ 10% p.a. to be accrued thereon from the date of payment of last installment that is on 15.02.2004 till realization thereof within two months from the date of this order.