The instant case was instituted on the basis of a petition of complaint filed by one Aniruddha Talukdar of R.K. Mission Road, Malda u/s 12 of the Act, 1986 which was registered before this Forum as Complaint Case No. 11 of 2015.

The fact of the case as revealed from the petition of complaint as well as from the evidence is that the O.Ps approached to the complainant for purchasing a shop/garage within the Mouza Mokdumpur. After much persuasion the complainant agreed to purchase the said shop/garage as the O.P. assured the complainant to make delivery of the shop/ garage within six months of the first payment. The agreement was executed between the parties on 30/06/2011. The consideration money was settled at Rs.1,50,000/-(Rupees One Lakh Fifty Thousand Only). The complainant paid the money by way of Cheque No. 601225 dt. 29/05/2011 of State Bank of India, Malda Branch which was duly encashed by the O.P. As per terms and agreement the shop / garage would be delivered within two years from the date of execution of the agreement or whichever is earlier. It is further stated that delivery of possession will be followed by the registration of shop room / garage in respect of the schedule property of the agreement dt. 30/06/2011. After getting physical possession on 27/07/2014 the complainant is using the premises as office room. On 29/05/2011 the entire amount was paid but the O.Ps did not take any steps for registration of the said shop room / garage. As such the complainant has come to this Forum to redress his grievance with a prayer for an order for immediate registration of the shop or garage and for compensation, cost of litigation  and other reliefs.

The petition has been contested by the O.P Nos. 1 and 3 jointly by filing written version denying all the material allegations as leveled against them contending inter alia that the case is not maintainable in law and fact. The case is barred by law of limitation. The case is barred by the provision of Partnership Act and the instant case is also barred by pecuniary jurisdiction as well as territorial jurisdiction. The case is also barred by principle of mis-joinder of parties and non-joinder of parties. 

The further case is that the instant case is apparently barred by  Registration Act.

The definite defense case is that in order to unlawful gain and in order to establish unlawfully the complainant has filed the false case.  The farther defense case is that the complainant had no intention to purchase the said garage. He proposed to adjust his advance money in the new proposal form of purchasing a flat. Accordingly, the complainant had not paid the rest amount of Rs.1.5 lakh in respect of purchase of consideration amount of the flat which was purchased from the O.P. The total mode of payment will speak the truth that the complainant paid Rs.11,00,000/-(Rupees Eleven Lakh Only) for purchasing the flat at the agreed price of Rs. 12,50,000/-(Rupees Twelve Lakh Fifty Thousand Only). The complainant left the possession in favour of the O.P. when the O.Ps sold the same to another purchaser viz. Amitabha Chatterjee. The Civil Case is pending before the Ld.Civil Court at Malda over the self same matter.

The further defense case is that the complainant unless and until produce the original document in respect of purchase of the flat from the O.P. The whole scenario will remain in dark. Considering such facts and circumstances the instant case is liable to be dismissed with cost.

The O.P. No. 2 separately filed the written version denying all the material allegations contending inter alia that the instant case is not maintainable in law and fact. The case is barred by provisions of Partnership Act and the case is in civil nature beyond the jurisdiction of  this Forum. The further defense case is that a Civil Case bearing No. 05/15 has been filed by one Amitabha Chatterjee against the complainant regarding the alleged shop or garage in the Court of Civil Judge, Sr. Division, Malda and that is pending. The further defense case is that the agreement is without any consideration and the same is void and not enforceable in law. Considering such fact the instant case is liable to be dismissed with cost.

During trial the complainant was himself examined as P.W.-1 and cross-examined. On e Arnab Talukder was examined as PW-2. The complainant is marked the document from Exts. 1 to 6. On the other hand Chandra Nath Jha was examined as O.P.W-1 and cross-examined. No other examination on behalf of other O.Ps.

Now the point for consideration whether the complainant is entitled to get any relief as prayed for.

::DECISION WITH REASONS::

The case of the complainant is that he paid Rs.1,50,000/-(Rupees One Lakh Fifty Thousand Only) to the O.Ps for purchasing a garage. The Ld.Lawyer for the complainant submitted that an Articles of Agreement was executed on 29/06/2011 between the O.Ps and the complainant wherein it is found that it was agreed by the parties that the O.P. will sale the garage or shop as mentioned in the schedule of the petition of complaint and the complainant has paid the entire amount of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand Only) vide Cheque No. 601225 dt. 29/06/2011  of SBI,  Malda Branch and that cheque has been encashed.

The defense case is that the complainant purchased one flat in the same building at a consideration money of Rs. 12,50,000/- (Rupees Twelve Lakh Fifty Thousand Only) but ultimately the complainant was not agreeable to purchase the said shop or garage for which he prayed for adjustment of the amount . This is the defense case. Now the next point is to be considered whether Rs.1,50,000/-(Rupees One Lakh Fifty Thousand Only) which was paid by cheque on 29/06/2011 was encashed or not. From the cross-examination of P.W.-1 it is found that the P.W.-1 has admitted in the fashion that I have paid the amount of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand Only) through account payee cheque  and that cross-examination was done on 30/07/2017. By such cross-examination it is well established that the complainant paid Rs.1,50,000/-(Rupees One Lakh Fifty Thousand Only) by A/c. Payee Cheque and the cheque has been encashed.

Now the next point is to be considered whether the defense case is that the said Rs.1,50,000/- (Rupees One Lakh Fifty Thousand Only) has been adjusted by the complainant for purchasing the flat of Rs. 12,50,000/- (Rupees Twelve Lakh Fifty Thousand Only). On perusal of the deed of sale which has been marked Ext.-B it is found that the complainant paid rupees Four Lakh on 01/08/2011, next rupees Four Lakh paid on 11/08/2011, next Rs. 1,50,000/-(Rupees One Lakh Fifty Thousand Only) was paid in two times on 28/02/2014 and next Rs.1,50,000/-( Rupees One Lakh Fifty Thousand Only)was paid on by cash. So on perusal of the deed no where we find that the Cheque No. 601225 dt. 29/06/2011 of SBI Malda Branch which was encashed by the O.Ps was adjusted for purchasing the flat. So the defense story is not at all believable.

The next point is to be considered that the instant case is not maintainable under the provision of Registration Act. It is a fact that after the amendment has made in West Bengal from 01/01/94 every agreement for sale is required to be registered but the present agreement of sale has not been registered but even non-registration of agreement sale can be used as a collateral purpose.  What is collateral purpose? The collateral purpose is that the complainant paid Rs.1,50,000/-(Rupees One Lakh Fifty Thousand Only) for purchasing garage so even inspite of non-registration of the agreement for sale the case of the complainant will not be defeated. Next point is to be considered that the case is barred by under the Provision of Partnership Act. under the Provision of Sec.3 of the Consumer Protection Act, 1986. This Act i.e. the Consumer Protection Act is not in derogation of any other Law, it is in addition to. Next point is to be considered that another case is pending over the self same matter before the Ld.Civil Judge Senior Division at Malda but there is no injunction order so that the complainant has been injuncted not to possess the said property. On perusal of Ext. A(i) it is found that the case was filed before the Ld.Civil Judge in the year 2015 whereas the amount was paid in the year, 2011. So the case filed by one Amitabha Chatterjee will have no effect in respect of the shop or garage as the entire amount was encashed by the O.Ps., if any developer or promoter sold the property in question twice for which the complainant will not take any liability/responsibility.

Another defense case is that Kiran Enterprise has not been made party but it is found that the partners of Kiran Enterprise has been made party. Another defense case was raised that Mr. Amitabha Chatterjee is a necessary party but in the opinion of this Forum Mr. Amitabha Chatterjee is not a necessary party in this case as because the complainant purchased the property from the O.Ps. He did not purchase from Amitabha Chatterjee. If the O.Ps sold the property to a third party after realization of the amount for which the complainant is not liable.  

So on considering the facts and circumstances the complainant has been able to prove the case.

C.F. paid is correct.

 Hence, ordered that

the case be and the same is allowed on contest with cost of   Rs. 1,000/-(Rupees One Thousand Only) for adopting unfair trade practice.

The complainant gets an order for registration of the shop or garage as stated in the schedule of the property of the petition of complaint. The O.Ps are directed to make necessary arrangement for registration of the garage within one month failing which the complainant will have at liberty to obtain registration of the shop of garage through process of law at the intervention  of this Forum. Besides that the complainant gets Rs. 25,000/-(Rupees Twenty Five Thousand Only) as compensation for mental pain and agony and Rs.10,000/- (Rupees Ten Thousand Only) as litigation cost.

Let a copy of the judgment be given to the parties free of cost on proper application.