15.12.2014

MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER

            The instant Appeal has been directed against the judgment and order dated 20.5.2013 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas in C.C.Case No. 340/2012, dismissing the Petition of Complaint on the ground of pendency of a Civil suit bearing No. 294/2012 before the Ld. 3^rd Civil Judge (Junior Division), Sealdah, with prayer for cancellation of Agreement for Sale dated 20.9.2011 entered into by and between the Appellants/Complainants and the Respondent Nos. 2&3/OP Nos. 1(a) & 1(b) being the Developers.

          The brief facts of the case are that the Appellants/Complainants entered into an Agreement for Sale dated 20.9.2011 with the Respondent Nos. 1(a) & 1(b)/OP Nos. 1(a) & 1(b) for purchase of a flat measuring 430 sq. ft. super built-up area against total consideration of Rs. 7,50,000/-, and paid Rs. 5,00,000/- as earnest money with the condition that the balance consideration would be paid before registration of the Deed of Conveyance, which was agreed to be completed by 31.3.2012 in accordance with the said Agreement.  With the passage of sometime the Appellants/Complainants, noticing the dillydallying tactics on the part of the Respondent Nos. 1(a)&1(b)/ OP Nos. 1(a) & 1(b) to complete the transaction as per the said Agreement, served on 6.3.2012 a notice upon the Respondent Nos. 1(a)&1(b)/OP Nos. 1(a) & 1(b) demanding refund of the earnest money paid with interest and compensation.  In reply to the said letter, the Respondent Nos. 1(a)&1(b)/OP Nos. 1(a) & 1(b) expressed their readiness to execute the Sale Deed upon receiving the balance consideration as well as additional consideration for additional works performed, although no additional works were done as alleged by the Appellants/Complainants.  At this stage, the Appellants/Complainants raised dispute over the shortage of area of the flat in question.  Then the Appellants/Complainants became reluctant as alleged by the Respondent Nos. 1(a)&1(b)/OP Nos. 1(a) & 1(b) to complete the transaction in question despite the readiness to execute and register the Deed of Conveyance on the part of the Respondent Nos. 1(a) & 1(b)/OP Nos. 1(a) & 1(b).  Thereafter, the Respondent Nos. 1(a) & 1(b)/OP Nos. 1(a) & 1(b) along with other OPs filed on 5.9.2012 a Civil Suit bearing No. 294 of 2012 before the Ld. 3^rd Civil Judge (Junior Division), Sealdah with a prayer for cancellation of the Agreement for Sale dated 20.9.2011.  In this background, the Ld. District Forum passed the impugned judgment and order in the aforesaid manner.  Aggrieved by such order the Appellants/Complainants have preferred this Appeal.

          The Ld. Advocate for the Appellants/Complainants submits that the Ld. District Forum erroneously held that the Complaint Case was not maintainable during the pendency of a Civil Suit.  It is further submitted by the Ld. Advocate that the pendency of the Civil Suit, which was a product of conspiracy, should not stand in the way of entertaining the Petition of Complaint for deficiency in service as per Agreement for Sale concerned.  The Ld. Advocate finally submits that in view of the said position of the case the impugned judgment and order should be set aside and the Petition of Complaint be restored.

          On the other hand, the Ld. Advocate for the Respondent No. 1(a) & 1(b)/OP Nos. 1(a) & 1(b) submits that there is no illegality or impropriety in the impugned judgment and order which was passed in consistence with the well-settled principle of law in this respect.  The Ld. Advocate further submits that the two proceedings involving the same matter before two judicial fora cannot run simultaneously to avoid conflicting  decisions on the same matter.  The Ld. Advocate relies on a decision in Baverly Park Maintenance Services Ltd. Vs. Kashmir Fab Styles Pvt. Ltd., reported in 2014 (2) CPR 207 (NC), in support of the above submission.  The Ld. Advocate finally concludes that in view of the said settled principle of law the impugned judgment and order should be sustained.

          We have heard both the sides, considered their rival submissions and perused the materials on records including the BNAs filed on behalf of the Respondents.

          Materials on record demonstrate that the Civil suit in question was filed on 5.9.2012 whereas the instant Complaint Case was filed on 21.9.2012, i.e. after filing the Civil Suit.  It is also revealed from the materials on records that the subject matters of both the cases were almost the same, that is, in the Civil Case prayer relates to cancellation of the Agreement for Sale dated 20.9.2011, while in the Consumer Case  prayer relates to enforcement of the performance of the same Agreement, cancellation of which has been sought for in the said Civil case, hinting thereby at the probability of conflicting decisions if the cases run simultaneously in both the Civil Court and the Consumer Fora.

          In view of the foregoing discussion we find force in the submission of the Ld. Advocate for the Respondent Nos. 1(a)&1(b)/OP Nos. 1(a) & 1(b) and, therefore, we find no ground to interfere with the impugned judgment and order by the Ld. District Forum.

          In the result, the Appeal is dismissed, the impugned judgment and order stands affirmed.  No order as to costs.