Sankar Kumar Ghosh,  President.

This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant, that the respondent no. 1 is a vendor/developer carrying on its business in developing and promoting buildings on the several lands of its own capacity and the registered office of both the respondents at the address mentioned in the cause title in complaint and the Complainant also states that by a deed of Gift being no. 1952 for the year 1996 vide book no. 1, Volume No. 12 Pages 333 to 342 registered with the Office of the Additional District Sub-Registrar-Srirampore, Hooghly, one Smt. Radharani Kayal, wife of Bipin Kayal absolutely gifted and transferred unto an area of land measuring about 1/4^th share of the land be the same a little more of less lying and situated at Plot no. 1205, Holding No. 84, (Old 48)m Ramlal Dutta Lane, Police Station-Uttarpara, District-Hooghly, PIN-712232, Ward No. 11, within the limit of the Uttarpara Kotrung Municipality to her elder brother Sri Maniklal Naskar and the Complainant also states that the respondent no. 2 seized and possessed all that piece and parcel of bastu land measuring about 8 Cottahs be the same a little more of less lying and situated at  Plot No. 1205, Holding No. 84 (Old 48),  Ramlal Dutta lane, Police Station-Uttarpara, District-Hooghly, PIN-712232, Ward No.-11, within the limit  of the Uttarpara Kotrung Municipality and the Complainant also states that the respondent no.2 being desirous to develop the said land and accordingly approached to the Respondent No.1 for development of the same and the respondent No.1 interested to construct a building for residential purposes in the said premises and as a result of which the development agreement between the respondent no.1 and respondent no.2 was made on 12.08.1996  and the Complainant also states that the respondent no.2 gave a power of attorney dated 12.08.1996 to the respondent no.1 for construction and develop the landed property as per development agreement dated 12.08.1996 Complainant also states that the respondent no.1 on the basis of Power of Attorney obtained a plan sanctioned from the Uttarpara Kotrung Municipality and thereafter the respondent no.1 commences the construction of the building in accordance with the said Plan and completed the three storied building upon the said land and the Complainant also states that being interested to purchase one residential unit being no. 302 on the 2^nd floor (East-West side) having super built area of 500Sq.ft. on the second floor lying and situated at the Municipal Holding No. 84, RamlalDutta Lane, Bhadrakali, Hooghly, within the limit of the limit of the Utrtarpara  Kotrung Municipality at a consideration of Rs. 3,25,574.50/- (Rupees Three Lakhs Twenty Five Thousand Five Hundred Seventy Four and Paisa Fifty) only the Complainant/Petitioner entered into an Agreement for Sale dated 20.07.2000 with the respondents and for that purpose, has paid Rs. 3,25,574.50/- (Rupees Three Lakhs Twenty Five Thousand Five Hundred Seventy Four and Paisa Fifty) only to the respondents on diverse dates after receiving the said amount on different dates the respondent no.1 acknowledged the receipts respectively and thereafter the respondent no.1 handed over the possession over the said flat to the Complainant and the Complainant also states that the Complainant went to the office of the respondent no.1 and asked the respondents when the respondents will register the said flat, then the respondent no. 1 replied that the respondents will do the same sometimes to come complainant then informed the said facts to the Sub Divisional Police Officer, Serampore and the Complainant also states that the Respondents have thus, committed grave deficiency of service and serious unfair trade practice and have caused enormous mental pain, harassment and agony to the Complainant besides huge monetary loss  and the Complainant also states that the claim of compensation and/or redressal of grievances of the complaint is less than Rs. 5 lakhs  and the Complainant also states that the cause of action started on and from the date of agreement between the parties i.e. on 20.07.2000 and still continuing and thereafter on 01.03.2017 when the Complainant informed the said factum to the police authority. Under the aforesaid circumstances complainant states that if the respondents do not register the flat as per the agreement in favour of the Complainant or her legal heirs as the case may be the Complainant will suffer     irreparable loss and injury. Hence interference by this Forum is extremely necessary.              

Complainant filed the complaint petition praying for direction upon the opposite parties directing the respondents to act strictly in accordance with the agreement for sale dated 20.07.2000 regarding sale of a residential flat being flat no.302 situated in the premises as stated above and payment of entire consideration money for the same has been paid fully by the Complainant and an interim order to that effect and in view of the same the said flat cannot be transferred anybody till the disposal of the application and to pass an order directing the respondents to transfer the said flat no 302, 2^nd floor, East-West Side, Municipal Holding No.84, Ramlal Dutta Lane, Bhadrakhali, Hooghly, in favour of the Complainant after getting the cost of registration from the Complainant in terms of the agreement. Complainant also prays for an amount of a  a sum of rupees 1,00,000/- only as damages for harassment, physical injury and mental agony and to pass an order a sum of Rs. 25,000/- as Litigation Cost of the present proceedings and to pass such other or further order or orders as may deem fit and proper.

O.P. no.1 has contested the case by filing a written version denying the material allegations against him and contended inter alia that the present petition is not maintainable in its present form and prayer in eye of law That the present Petition is barred by Law of Limitation as per Section 24A of the Consumer Protection Act.  The Present Petitioner has brought this application after 18 years of cause of action and the present petitioner never filed any demand notice to the Opposite Party No. That the present petitioner has no right to file this application before this Forum.   That it is not true that one Smt. Radharani Kayal gifted her share to the Opposite Party No.2 and it is also not true that the Opposite Party No.2 by dint of said gift he got sixteen annas owner of the Holding no. 84 (Old 48) Ramlal Dutta lane under the Uttarpara Kotrung  Municipality, but indeed Ld. Civil Judge (Sr. Div.) Hooghly had declared that the said Gift Deed is illegal one and opposite party no.2 is not an absolute Owner of the said property, moreover, there are several Civil Suits pending before the Civil Court regarding title of Opposite Party No.2 and Opposite party no.2 has falsely stated that he is owner of said Holding, and executed a defective Power and Agreement with the present Opposite Party No.1. That it is a fact that the Opposite Party no. 2 executed a power and Agreement in favour of the present Opposite Party No.1, but after completion of the building the Opposite Party No.2 most wrongfully and illegally revoked his power and agreement, but the opposite party no.1 bore entire cost of the construction work. That it is not true that the Petitioner used to visit with the Opposite Party No. 1 for registration of the Flat, but he replied that he will do the same sometimes to come. That O.P. no.1 states also that complainant shall have no right to get any relief or reliefs and thus, O.P. no.1 has prayed for dismissal of the instant case with cost.

O.P. no.2 has also contested by filing W/V on 27/09/2019 (though O.P.2 wrongly mentioned under the heading Written Argument) denying the material allegations against him and contended inter alia that complaint is barred by Limitation as per provision u/s 24 of the C.P. Act, 1982 as agreement for sale made between complainant and developer /O.P. no.1 on 20/07/2000 and final payment made on 29/09/2000 by complainant to o.p. no.1.  Thus complaint has been filed by complainant after laps of 17 years.

It is also specifically stated by O.P. no. 2 that there was no agreement between complainant and O.P. no.2 / landlord and there was no monetary transaction between complainant and O.P. no.2. That there is no consumer relationship between complainant and O.P. no.2. That regarding the property in question one civil suit is pending between O.P. no.1 and O.P. no.2 before Ld. 1^st Civil Judge (J.D.) at Srirampore, Dist-Hooghly being case no. 283/2016.

O.P. no. 2 also states that regarding alleged power of attorney dated 12.08.1996 one criminal suit is pending between O.P. 1 and O.P. 2. Being G.R. Case No. 611/2002 (M.P. No. 1/2018).

It is also stated that O.P. no.2 that Hon’ble High Court, Calcutta in F.A. Case no. 269/2013 vide order dated 08/10/2013 passed an order of “Status Quo” in respect of property of O.P. no.2 at 84, Ramlal Dutta lane, P.O. & P.S. Uttarpara, Hooghly, till Disposal of Appeal.

It is also stated by O.P. no.2 that the allegations labelled upon O.P. no. 1 by complainant is breach of contract, which is purely Civil in nature and proper relief lies in Civil Court by filing a suit for “Specific Performance of Contract”.

It is also stated by O.P. no.2 that there is no single allegation of the complainant against O.P. no.2.

Be it mentioned that complainant has filed affidavit-in-chief in support of her case. 

Neither O.P. 1 nor O.P. 2 file affidavit-in-chief in support of their respective case.Hon’ble HigH

Issues/points for consideration

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether there is any deficiency of service on the part of the opposite parties?
4. Whether the complainant is entitled to get relief or not?

DECISIONS WITH REASONS

All the points are taken up for easiness of the discussions of this case.

1. In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986, the complainant here- in is a consumer of the opposite parties.
2. The complainant and the opposite parties are residents within the district of Hooghly. The claim of complainant towards mental agony, harassment and physical injury and other expenses which are within Rs. 2,00,000/-, i.e. within limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
3. It may be pointed out that in this case the complainant in support of complaint has filed evidence-in-chief, whereas neither O.P. no. 1 nor O.P. no.2 has filed affidavit-in-chief in support of their respective contents of W/V.

It may be noted that complainant files BNA and O.P.no. 2 files BNA, whereas O.P. no. 1 has not filed any BNA.

It will not be out of place to mention that practically the contents of Written Version on behalf of O.P. no. 1 and O.P. no.2 will not bear any legal value as the contents of Written Version of them have not been supported by an affidavit-in-chief, as because O.P. 1 and O.P. 2 have not filed any affidavit-in-chief.

The complainant has filed with a copy of memorandum ofagreementbetween O.P. 2 /landlord and O.P.no.1 /developer. Complainant also filed a copy of agreement between O.P. no. 1 and herself in respect of purchasing the flat in question Complainant also files photocopy of money receipts showing that O.P. no. 1 is the recipient. Complainant also files photocopy of her Aadhaar Card and a photocopy of a letter filed by one Tapas Kumar Ghosh, S.I.of Police, Uttarpara P.S. addressing to SDO, Srirampore, Hooghly.

It is complainant who stated that the cause of action started on and from the date of agreement between parties that is on 20/07/2000 and still it is continuing and thereafter on 01/03/2017 when complainant informed the factum to Police Authority and developer.

Ld. Counsel appearing for the complainant submitted that time without number, complainant drew attention of the O.Ps. and invited them to do the needful, but O.Ps. did not pay any heed to such requests / reminders of complainant.It is specifically argued by Ld. Advocate of complainant that O.Ps. have committed grave deficiency in service and made serious unfair trade practice causing complainant enormous mental pain, harassment and mental agony besides huge monetary loss.

It may be noted that on behalf of O.P.2 one brief note of argument has been filed mainly highlighting that present case of complainant is barred by limitation as per provision u/s 24/A of Consumer Protection Act 1986 as Agreement for Sale made Between the Complainant and Developer/O.P.No.1 on 20/07/2000 and Final Payment made on 29/09/2000 by the Complainant to the Developer/O.P. no. 1and thereafter the complainant has filed this case after lapse of 17 years, where the limitation of filing this case is within 2 years as per section24/A of the Consumer Protection Act, 1986.

It may be pointed out that regarding on the point of limitation complainant has specifically explained the continuing cause of action relating to this case.So, the argument of O.P.2 on the point of cause of action appears to be meritless.

It is also stated in the B.N.A. by O.P. 2 that in between complainant and O.P. 2 there is no agreement and there is no Monetary transaction between complainant and O.P. 2 and there is no consumer relationship between complainant and O.P.2 .It is also mentioned in B.BN.A. by O.P.2 that regarding the property in question one Civil suit is pending between O.P. 1 and O.P.2 before the Court of Ld. Civil Judge(Jr.Div.) at Srirampore, District-Hooghly, being T.S.No.283/2016. O.P. 2 also alleged that Hon’ble High Court, Calcutta in F.A. no. 269/2013 vide order dated 08/10/2013 passed an order of Status Quo in respect of the property of O.P.2 lying on 84, Ram Lal Dutta Lane, P.O. & P.S.-Uttarpara, District-Hooghly.Be it mentioned that on behalf of O.P.2 neither a scrap of single paper relating to aforesaid alleged Title Suit alleged to be pending at Srirampore Court, nor any paper regareding alleged F.A. No. 269/2013 alleged to have been pending before Hon’ble High Court, Calcutta has been filed on behalf of O.P.2.

It may be noted O.P.2 further mentioned that the allegation of complainant upon O.P. No. 1 is in the nature of “Breach of
Contract”, which is purely civil in nature and proper relief lies in Civil Court by filing a Suit for “Specific Performance of Contract”.This Forum cannot buy such argument of O.P.2 and this Forum is of the view that complainant has jurisdiction and cause of action to file this case before this Forum praying for her relief.

Hon’ble National Commission in Papiya Roy Barman Vs. Swapan Kumar Aich, 2018(4) CPR 724 (NC) held that when the land owned entered into an agreement with a developer for developing their land they are liable to sign the conveyance deed along with the builder as confirming parties. So, we may safely conclude that opposite party No.2 is also responsible to execute the deed of conveyance in favour of the complaint.

In the above backlog it is clearly proved that complaint proved her case against the O.P.1 and O.P.2 and as such complainant is entitled to have award as per her prayers of complaint.

Hence,

it is

ordered

that the complaint case no. 09/2018 be and the same is allowed on contest against O.P. no. 1 & 2. With cost.

            O.P. No. 1 & O.P.No.2 are directed to transfer the flat in question   being flat no. 302, 2^nd floor, East-West Side, Municipal Holding No. 84, Ramlal Dutta lane, Bhadrakali, Hooghly in favour of the complainant after getting the cost of registration from the complainant in terms of agreement within two months from the date of this order.

            O.P. No. 1 & O.P. no. 2 are directed to pay to the complainant Rs. 20,000/-   jointly and severally towards his harassment and mental agony within two months from the date of this order    

            O.P. No. 1 & 2 are directed to pay complainant Rs. 5,000/- towards litigation cost within two months from the date of this order.

            Let copy of this order be supplied free of cost to the parties/their Ld. Advocates on record by hand with proper acknowledgement/send by ordinary course for information and necessary action.