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

Case No. CC/161/2019.

Date of filing: 21/10/2019.                     Date of Final Order: 28/03/2024.

Smt. Dipanwita Adhikary

w/o Umanath Adhikary,

of 17/D, Satyacharan Sashtri Street,

Mahesh, P.O. Rishra, P.S. Serampore,

Dist. Hooghly, PIN. 712248.                                                                   …….complainant

  -vs 

M/S Fair Deel Construction,

A partnership firm represented by its partner

 Smt. Subhra Majumdar,

w/o Sri Abhijit Majumdar,

of 177/1, G.T. Road,

P.O. & P.S. Serampore,

Dist. Hooghly, PIN. 712201.                                                                   ..…..opposite party

Before:            President, Shri Debasish Bandyopadhyay.

                          Member,  Debasis Bhattacharya.

                         Member, Babita Chaudhuri.

FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

This case has been filed by the complainant against the OP for the purpose of passing direction upon the Op to execute and register deed of conveyance in respect of schedule mentioned property which has been described in the complaint petition and also for passing direction in the matter of making payment of compensation and litigation cost.

Fact of this case.

Case of the complainant:-  This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that this case has been instituted by the complainant but after the institution of this case the complainant passed away on 18.6.2020 leaving behind her husband namely Uday Nath Adhikary and only son Anindya Adhikary and they stepped into the shoe of the complainant and their names has been substituted by this District Commission.  It is pointed out that one Mainak Chatterjee son of Late Nilmoni Chatterjee of 7, Chatterjee Lane P.O & P.S-Serampore Dist-Hooghly had entered into agreement with the owners namely Sri Ramendra Nath Banerjee and 5 others and with the developers namely M/s Fair Deal Construction (Opposite Party of this case) and it was  agreed that owners and developers would sell a flat measuring about 760 sq. ft. on the 3^rd floor of “Mahamaya Apartment”situated at 526 G.T.Road Mahesh P.S-Serampore Dist-Hooghly Pin-712201.  It is submitted by the complainant side that after completion of construction of the said apartment the developers (OP of this case) handed over the physical possession of the above noted flat being no.303 of above noted apartment.  It is the case of complainant side that said Mainak Chatterjee was unmarried and passed away on 22.4.2016 leaving behind his only legal heir namely “Dipanwita Adhikary”who is the complainant of this case.  It is pointed out that during lifetime of the Mainak Chatterjee predecessor of complainant Dipanwita Adhikary, the developers did not get the flat registered in the name of the said Mainak Chatterjee.  According to the case of the complainant side said Mainak Chatterjee had paid Rs.630000/- to the partners of the developers as purchased money and for further development of the said flat being no.303 situated at the 3^rd floor of Mahamaya Apartment and the partners of the said M/s Fair Deal Construction issued receipts to the said Mainak Chatterjee.  It is alleged that partners of the said M/s Fair Deal Construction issued a letter with  the subject for making arrangement for registration but the said letter does not bear any date.  According to the case of complainant ;side the Op has failed and neglected to execute and register the deed of conveyance in respect of flat no.303 of Mahamaya Apartment and it is a fair instance of unfair trade practice and deficiency of service for which the complainant side is entitled to get all the relief which has been prayed in this case.

On the other hand the OP M/s Fair Deal Construction represented by partner Smt. Subhra Mazumder has contested this case by filing written version.

Complainant filed the complaint petition praying direction upon the opposite party to hand over the schedule mentioned flat in accordance with the agreement dt. 20.11.2006 and to pay a sum of Rs. 50,000/- as compensation.

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 op has no personal knowledge whether said Moinak Chatterjee had died or not and the complainant is only legal heir of said Moinak Chatterjee and the complainant never requested the op to execute and register deed of conveyance in favour of herself and the op has never given assurance to her to register the proper deed of conveyance. Moreover how the legal heir ship has been developed upon the present complainant as after the death of Moinak Chatterjee has not been stated in the instant petition and the allegation of not taking effective step by the op in the matter of execution and registration of instrument of transfer after receiving the notice does not arise at all. The complainant has filed instant application against the op by suppressing the material facts in order to get illegal benefit and the complaint petition is not maintainable in view of provision of non impleadment the actual owners of the property and there are so many persons have valid right, title, interest over the said holding being no. 526, G.T. Road, Mahesh, Serampore and there were many persons who were the owners of the property in question and said property was developed by the developer M/S Fair Deel Construction a partnership firm represented by its partners Subhra Majumdar, Kamal Ghosh Roy and Soma Dhar and most of the owners have died long ago and the power of attorney which has been given to Smt. Subhra Majumdar and Kamal Ghosh by the said owners has become invalid/ inoperative and due to the death most of the principal the op being their agents as per provision of Indian Contract Act has lost the right to execute any documents on behalf of the owner. The op has not right or authority to perform any act on the basis  of such invalid power of attorney and the op was mere partner of the partnership firm and the said partnership firm has no legal existence at all. The complainant did not implead all the partners of the partnership firm M/S Fair Deel Construction and even implead the legal heirs of the deceased partner, Kamal Ghosh and so without impleading all the partners as well as legal heirs of deceased partner no order can be passed against the op. It is settle position of land in a deed of conveyance the owners as well as the legal heirs of the deceased owners and the partner’s legal heirs as developer are required for registration purpose but in present situation the complainant is trying to obtain order from ld. Court by suppressing all such material things and the op has no right to perform any act solely where there are number of persons likely to be impleaded for performing legal acts. The entire fact with reference of letter of Advocate by reply letter but inspite of having knowledge the complainant with some malafide intention filed the instant application to mislead the ld. Court and the op is not solely bound to do or perform any legal act on the basis of power of attorney or the development agreement. Actually the op has no authority to execute and register any instrument of transfer to any person and therefore the question of passing order of injunction against the op does not arise at all and in fact in absence of all the necessary parties no order of injunction can be passed and the op did not receive any amount from the complainant or from Moinak Chatterjee personally so no cause of action lie upon the op. So, the instant case should be liable to be dismissed.

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 Serampore, Hooghly and OP has it’s place of business of Serampore 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, 1986 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 24 A of the Consumer Protection Act, 2019 is very important and according to the provision of Section 24 A 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 Mainak Chatterjee paid Rs.630000/- to the partners of OP as purchased money in respect of Flat no.303 situated at 3^rd floor of Mahamaya Apartment Serampore Hooghly and the OP issued receipts in respect of the payment of Rs.630000/-.  It is also revealed that the complainants are in possession of the above noted flat.  In this regard it is important to note that the OP has time and again raised the question as to how the complainant Dipanwita Adhikary becomes the legal heir of Mainak Chatterjee.  Over this issue this District Commission after going through the material of this case record finds that after the demise of Dipanwita Adhikary on 18.6.2020 her legal heirs namely the present complainants who are the husband and son of the said Dipanwita Adhikary stepped into the show of complainant by way of substitution.  In this connection it is very pertinent to mention that the OP has not challenged the said order of allowing substitution petition and so the OP is now estopped from challenging the said above noted point as per principle of estoppel which is embodied in section 115 of Indian Evidence Act, 1872.  After going through the material of this case record it is revealed that the OP inspite of taking consideration money has not registered and executed the deed of conveyance.  In this connection it has been pointed out by the OP side that land owners have not been impleaded as parties of this case and so the OP solely cannot  execute and register the deed of conveyance.  But fact remains that the material of this case record goes to show that the land owners executed power of attorney in favour of the OP.  So OP is duty bound to execute and register the deed of conveyance.

It is also revealed from the case record that the OP has caused delay in the matter of execution and registration of the deed of conveyance and so this is a clear instance of deficiency of service and negligence.  For that reason the OP is liable to pay compensation and litigation cost to the complainants.

            A cumulative consideration of the above noted discussion goes to show that the complainant has proved her case in respect of all the points of consideration adopted in this case and for that reason the complainant is entitled to get relief in this case in respect of all the points of consideration.

In the result it is accordingly

ordered

that the complaint case being no. 161 of 2019 be and the same is allowed on contest but in part.

Opposite Party is directed to execute and register the deed of conveyance in favour of the complainants in respect of the schedule mentioned property of the complaint petition within 45 days from the date of passing of this final order otherwise the complainants are given liberty to execute this award as per law.  OP is also directed to pay compensation of Rs.25000/- and litigation cost of Rs.5000/- to the complainants within 45 days from the date of passing of this final order failing which the complainants are given liberty to execute this award as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite party is also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

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.