Date of filing      : 03.12.2014

                Date of S/R         : 13.02.2015

                Date of Order     : 19.01.2016

                Smt. Putul Chakraborty

              W/o- Shri Biswanth Chakraborty,

               D/o- Late Bireswar Bhattacharyya

              2, Chandi Charan Jyotir Bhusan Lane,

               P.O. & P.S. Bally,Howrah-711201…………………………………….Complainant

                                                                Vs.

      1)   M/s Sona Construction .,

             Office at 21/B/1, Raj Krishna Kumar Street,

P.O. Belurmath, P.S- Bally, District- Howrah-711201,

Represented by its partners :

Sri Pranab Bhattacharyya,

S/o Sri Nishikanta Bhattacharyya,

6/7 Raj Krishna Kumar Street,

P.O.- Belurmath, P.S. Bally,

District- Howrah-711201

       2)  Sri Prabir Biswas,

W/o Sri Prafulla Biswas,

21/B/1 Raj Krishna Kumar Street,

P.O.- Belurmath, P.S. Bally,

               District- Howrah-711201

          3) Smt. Dipti Bhattacharyya,

W/o –Late Bireswar Bhattacharyya, residing at

2, Chandi Charan Jyotir Bhusan Lane,

P.O. & P.S. Bally,Howrah-711201.

           4) Smt. Nanda Mukherjee,

               W/o- Sri Supriya Mukherjee ,

                Residing at 91C, Pocket E, Dilshad Garden, Delhi-110095.

P R E S E N T

………………………………………………………………………………………

President : Shri B. D. Nanda.

Member   : Smt. J. Saha.

Member   : Shri A. K. Pathak.

                This is an application U/s 12 of the Consumer Protection Act, filed by the Petitioner, Smt. Putul Chakraborty praying for an order directing the O.P Sona construction and others and praying for a direction on the O.P. No. 1 & 2 to deliver flat measuring 550 Sq feet and arrange for registration of the same and also the O.P. 1 & 2 to pay Rs. 97800/- being the due 1/3^rd  share out of Rs. 2,71,666/- being the due 1/3^rd of financial consideration  and to pay Rs.25000/- as compensation and Rs.10000/- as litigation cost and Rs.16667/- being 1/3^rd of interest received from the Bank during last 4 years.

            The case of the petitioner is that she is a house wife and after the death of her father Bireswar Bhattacharyya she became owner in respect of 1/3^rd  share of his parental property at Municipal Holding No. 2, Chandicharan Jyotir Bhusan Lane, P.S. Bally along with her mother and younger sister and they entered in toan agreement for development of the above property with the M/s Sona Construction represented by Pranab Bhattacharyya and Prabir Biswas on 17.05.2010 with stipulation that the O.Ps would pay specific amounts and also one complete residential flat to this petitioner measuring 550 sq. feet being her 1/3^rd share but the O.P.s ½ gross violation of agreement only paid Rs. 50,000/- to her mother and completed the G+3 construction and did not handover the flat to the petitioner as per terms of the development agreement and also no payment was made.  The petitioner approached the O.P. but all her effort were in vain.  She also filed one Civil Suit being T.S. 52/2014 on 29.04.2014 before Ld. Civil Judge Jr. Division Howrah, praying for specific performance of contract and got temporary injunction there and also the O.P.s threaten  her with dire consequences as the O.P.s wanted to sall the flats to the different person and so she filed this case. 

            The O.P.s though served with notice did not appeared and contest the case and thus the case was heard exparte against the O.P.s

            The only point decided here is where the petitioner is entitled to get the relief as prayed for.

Decision with reason

 In support of her case the petitioner filed before this Forum one affidavit in evidence and documents being the development agreement which proved the fact that there were an agreement between the petitioner and the O.P.s and there were many a terms and conditions.  However in the instant case the petitioner submitted that she has already filed one title suit before the ld. Civil Judge, Jr. Division 1^st court for specific performance of contract where in she got temporary injunction against the O.P.s and also she is entitled to get quick relief before the ld. Civil Judge who is to decide the case on scrutiny of the development agreement and other documents of the case.  However, this Forum cannot entertain this CC No. 622/2014 which was filed almost eight months after the civil suit which was filed on 03.12.2014.  Thus here it is clear that one civil suit has been pending on the self same issues before the Civil Court and before this Forum which finds that both the proceedings are mutually destructive and cannot run concurrently and this Consumer Protection Act, 1986 is enacted for the protection of the common man where under the common law has become illusory.  In the instant case the petitioner filed Civil Suit for specific performance of contract and thus both the Civil court and this Forum being courts of concurrent jurisdiction cannot decide same issues which might be destructive and give rise to multiplicity of proceedings and thus this Forum denies to pass any final order in this case opining that the case is not maintainable in this Forum as previous Civil Suit pending on self same issue before the Civil Court. 

In view of above discussion and findings the case fails.

            Court fees paid is correct.

Hence,

                                                            Ordered,

That the CC 622/2014 be and the same is dismissed on contest but without cost.

           Supply the copy of the order to the parties free of cost.  

Dictated and corrected

by me

     ( B. D. Nanda)

President, C.D.R.F. Howrah