CC filed on : 6.3.2017
Judgment : Dt.20.2.2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by (1) Barun Das, (2) Usharani Das, (3) Mina Das alleging deficiency in service on the part of the opposite parties (referred OP hereinafter) namely (1) M/s Ganapati Construction, (2) Piyali Bhattacharya, (3) Rama Nayak, (4) Pradipta Bhattacharya and (5) Dipsikha Prasad.
Case of the Complainant in brief is that the complainant No.1 and one Tarun Das entered into Development Agreement on 29.6.2015 with the OPs who had been empowered to develop a piece of land situated at Mouza – Paschim Barisha, Pargana – Khaspore, J.L.No.19, R.S.Khatian No.187 and 849, Dag No.1354 being premises No.172 Amritalal Mukherjee Road, P.S.-Thakurpukur, Kolkata-700 063 by constructing a G+III multistoried building which was to have been completed within twenty months from the date of execution of the development agreement. Said Trun Das died on 4.10.2015 leaving behind the legal heirs i.e. Complainant No.2 & 3. The Complainants have stated that the OPs took no initiative to develop the property so the Complainant sent a legal notice through their Advocate on 5.3.2016 but that yielded no fruitful result and again on 17.2.2017 another legal notice had been sent by the Complainant to the OPs for executing a formal Deed of Cancellation of Development Agreement and to pay compensation that too remained unreplied. Finding no other alternative, the Complainants have filed this case praying for a direction upon the OPs to execute a registered Deed of cancellation of development agreement in favour of the Complainants and/or an order directing that the said deed of development is null and void and not binding upon the Complainants, to pay Rs.8,00,000/- for the losses, to pay Rs.10,00,000/- towards compensation and Rs.1,00,000/- towards litigation cost.
Notices were served upon the OPs but the OP Nos.1 & 5 did not turn up so the case was proceeded ex-parte against OP Nos.1 & 5 vide order No.6 dt.17.5.2017.
The OP Nos.2, 3 & 4 contested the case by filing written version denying disputing all the allegation made out in the petition of complaint stating inter alia, that said Tarun Das died intestate leaving behind the Complainant Nos.2, 3 and a minor son to inherit his undivided one half of the said property and there is a legal embargo to develop the property since the property is inherited by a minor and obtaining necessary permission is mandatory from the Ld. District Judge Alipore to proceed with the development work.
Both parties adduced evidence followed by the cross-examination in the form of questionnaire and reply thereto.
In course of argument Ld. Advocate on behalf of the Complainant narrated the facts mentioned in the petition of complaint, and affidavit-in-chief.
Ld. Advocate for the Complainants relied upon the decisions of Hon’ble NCDRC reported in IV(2017) CPJ 120 NC [M. VITTAL RAO REP. BY LRS VS BRINDAVAN BUILDERS PVT. LTD.] IV (2017 CPJ 149(NC) [ISWAR SINGH VS ESTATE OFFICER, HUDA & ORS].
Ld. Advocate on behalf of OP Nos.2, 3 & 4 raises the issue of inheritance.
Main points for determination
- Whether the case is maintainable
- Whether the Complainant is entitled to any relief as prayed for.
Decision with reasons
Point No.1
The Complainants claimed that the Complainant No.1 along with his brother Tarun Das (now deceased) entered into a Development on 29.6.2015 with the OPs in respect of a piece of land situated at 172, Amritalal Mukherjee Road, P.S.-Thakurpukur, Kolkata-700063.
Photocopy of Development Agreement dt.29.6.2015 supports the contention of the Complainants. It is stated by the Complainants that subsequently the said Tarun Das had on 4.10.2015 and his legal heirs have been impleaded as party to the instant case. However, the OPs by filing written version have stated that besides the legal heirs who have been impleaded as party the said Tarun Das also survived by a minor son who has not been made party to the instant case. It appears that question No.9 of the cross examination in form of questionnaire filed by the OP Nos.2, 3 & 4. They put question “I suggest that there is a minor child of the said Tarun Das, since deceased is not it true”? In reply to which the Complainant answered “No”.
It is evident that determination of succession is the pre-condition of adjudication of this consumer dispute.
Further, the Complainants in their evidence on affidavit has stated that the Complainant No.2 had also died but no step like intimation and substitution has been taken by the Complainant.
Further, the Complainants have prayed for declaration of the Development Agreement dt.29.6.2015 as null and void although this Forum has no declaratory power.
Under such state of affairs it is evident that this case is not maintainable before this Forum since issues of succession and also power of declaration is involved herein.
Point No.1 is decided accordingly.
There is no scope to enter into point No.2 for determination.
In the result, the Consumer Complaint does not succeed.
Hence,
ordered
that the CC/131/2017 is dismissed ex-parte against OP Nos.1 & 5 and dismissed on contest against OP Nos.2, 3 & 4 being not maintainable.
