DATE OF FILING                    :     04.7.2014.

DATE OF S/R                            :      07.08.2014.

DATE OF FINAL ORDER      :     15.01.2016.

1. Musarat Jahan,

widow of late Md. Dastagir,

2. Md. Obaidullah,
3. Md. Abdulla,
4. Md. Saifullah,
5. Momina Musharrat,
6. Maimuna Musarat,
7. Md. Habibullah,
8. Minor Farheen Musharrat,
9. Minor Md. Amanullah,
10. Minor Md. Kalimullah and
11. Minor Md. Samiullah,

all sons and daughters of

late Md. Dastagir,

resident of 11 and 12/1, Mollah Para lane, P.S. Shibpur,

District Howrah.…………………………………………… COMPLAINANTS.

• Versus   -

Muktar Ahmed,

son of Md. Abdul Masjid,

proprietor of M/S. Talhha Construction

of 66, Cowies  Ghat Road, P.O. & P.S. Shibpur,

District Howrah,

PIN  711102………. …………………………………………………OPPOSITE PARTY.

P    R    E     S    E    N     T

Hon’ble President  :   Shri  B. D.  Nanda,  M.A. ( double ), L.L.M., WBHJS.

Hon’ble Member      :      Smt. Jhumki Saha.

Hon’ble Member : Shri A.K. Pathak.

F  I   N   A    L       O   R   D    E     R

1. This is an application filed  by petitioners praying for a direction upon the o.p. Muktar Ahmed, directing the o.p. to refund the earnest money paid by the petitioner and the deceased husband of petitioner no. 1, namely deceased Md. Dastagir, in favour of o.p. amounting to Rs. 8 lakh and compensation of  Rs. 2 lakhs for mental harassment and agony and Rs. 10,000/- as litigation costs.   

2. The case of the petitioner is that the present complainants are consumers. The predecessor in interest of the present complainant i.e., Md. Dastagir & complainant no. 1 were absolute owner in respect of land measuring 5 katha  1 chattac 7 sq. ft. with structure thereon in municipal holding no. 11 & 12, Mollahpara Lane, P.S. Shibpur, by virtue of registered deed of sale dated 03.05.2002. Md. Dastagir and the complainant no. 1 entered into an agreement with the o.p. on 20.10.2010 for the purpose of raising a three storied building over the said land. As per agreement Md. Dastagir and the petitioner no. 1 would get entire commercial area in the ground floor and entire covered area of 2000 sq. ft. in the 1^st floor in the in the form of flats viz.  A, B & C and the excess area of the 1^st floor would go in favour of o.p. who would sell the same in favour of the petitioner no. 1 and Md. Dastagir @ Rs. 1,250/- per sq. ft. at a total consideration of  Rs. 13,65,652/-.

3. As per agreement dated 20.10.2009 Md. Dastagir and petitioner no. 1 paid Rs. 8 lakhs in favour of the o.p. towards the earnest money in cash as well as cheques and the due amount is  Rs. 5,65,652/-.  The   o.p. raised three storied building as per agreement having sanctioned plan. The petitioner no. 1 and her husband requested the o.p. to execute and register the deed in favour of the petitioners but the o.p. though assured did not execute the same and on 10.01.2013 the o.p. refused to execute and register the deed of conveyance. The petitioner no. 1 and her husband were always ready and willing to perform their part of the contract but the o.p. neglected to perform and later the petitioner came to know that the o.p. transferred the property in favour of Sk. Salauddin by virtue of a registered deed dated 27.12.2011. The petitioner and her husband requested the o.p. to cancel the deed and to execute the deed in their favour by taking balance Rs. 5,65,652/-. On 26.07.2013 Md. Dastagir died and the petitioner nos. 2 to 11 are his legal heirs and  as the o.p. did not execute the deed so the present petitioner filed this case praying for refund of money etc.

4. The o.p. / Muktar Ahamed contested the case by filing a written version denying the allegations made against the o.p. stating that the case is not maintainable and it is barred by limitation and the petitioners has no cause of action to file this case.

5. The o.p. submitted that during his life time the predecessor of the present petitioners i.e., Md. Dastagir filed  T.S. No. 219 of 2011 before the Civil Court at Howrah and did not proceed and again he filed writ petition before the Hon’ble High  Court at Kolkata being  Writ Petition no. 12051 (  W ) of 2011 and also did not proceed further and he also filed criminal case against this o.p. U/Ss 149 / 324 / 506 of I.P.C. and in that case also the o.p. was found not guilty.  Further the petitioners are not consumers and there is no deficiency in service on the part of the o.p.

6. The o.p. further submitted that the subject property has already been transferred in favour of Sk. Salauddin by registered deed of conveyance dated 27.12.2011 which is prior to the institution of this case which was filed on 04.7.2014.  The o.p. further submitted that the petitioners have not approached before the Forum in clean hands and they have concealed many material facts and thus their case be dismissed as the same suffered from limitation also being the agreement between the parties made in 2009 and the petitioners filed this case in 2014.       

7. Upon pleadings of  parties the following  points arose for determination :

1. Is the case maintainable in its present form ?
2. Whether the petitioner has any cause of action to file the case ?
3. Whether  there is  any deficiency in service on the part of the O.P.,?

2. Whether the complainant is   entitled to get any relief as prayed for ? 

DECISION  WITH   REASONS      :

8. All the issues aretaken up together for the sake of convenience and brevity for discussion and to skip of reiteration. In support of their case the petitioner filed affidavit as well as documents being the ownership deed of the petitioners and also the agreement for development of land between Md. Dastagir and Musaratas land owners in first part and the construction company being represented by Muktar Ahmed in the second part being the developer and the promoters. In their case the petitioner submitted that Md. Dastagir and petitioner no. 1 entered into an agreement for development with the o.p. on 20.10.2009 for the purpose of raising three storied building at their property measuring about 5 cottach 1 chittak and 7 sq. ft. land and it was agreed between the parties that said Md. Dastagir since deceased and the complainant no. 1 being his wife would be allotted the entire covered area in the ground floor and entire covered area of 2000 sq. ft. in the first floor in the form of three flats being flat ‘A’, ‘B’ & ‘C’ of the proposed building and the excess area of the rest first floor, besides, 2000 sq. ft. of the petitioners and the entire area of the second floor would go in favour ofthe developer. The further case of the petitioner is that the excess area of the 1^st floor beyondthe allocated area of landlord i.e., beyond 2000 sq. ft. would be sold by the o.p. to the petitioners at a consideration of Rs. 1,250/- per sq. ft. and the total consideration fixed was Rs. 13,65,652/- out of which 8 lakhs paid by the said Md. Dastagir and on payment of rest Rs. 5,65,625/- the excess area would be transferred in favour of the petitioners. The o.p. raised three storied building over the suit property as per sanctioned plan and did not register the deed of conveyance in respect of excess area as agreed between them in respect of the excess area of 1^st floor which is the suit property as stated in the petition and so the petitioner filed this case.

9.         This Forum scrutinized the development agreement specifically para 8 and para 10 wherein it has been stated that the owners shall jointly be allocated covered area in the ground floor and another covered area of 2000 sq. ft. on the 1^st floor of the proposed building in the form of three flats A, B & C ….….….….….…. and rest of the constructed area of the upper first floor and second floor would be  allocated to the developers / promoters................................. The area of the land lords specifically mentioned in ‘B’ schedule and the area of the promoter / developer fully described in the flat schedule of the development agreement. In para 10 it is mentioned that the total area of the three flats A, B & C on the 1^st floor if exceeds  the agreed covered area of 2000 sq. ft. then the land owner shall pay to the developers for such excess area @ Rs. 1250/- per sq. ft. in the area to acquire lawful ownership of the same.  Thus the recitals  in  the development agreement as seen in paras 8 & 9 and in para 10, differ from the case of the petitioner who on the other hand submitted otherwise without disclosing the material facts as stated in the development agreement.  This Forum cannot disbelieve such intrinsic evidence. The petitioners on the other hand filed civil suit before the Civil Judge, Jr. Division, 2^nd C ourt, Howrah, being T.S. No. 219 of 2011 and Writ Petition before the Hon’ble Court but surprisingly they concealed all such material facts before the Forum. It is specifically mentioned by our National Commission as well as by our Supreme Court that any person who approaches court or a judicial forum not with clean hands and also concealed material facts are not entitled to relief under the law. Everyone should approach a court or this Forum in clean hands but this petitioner not only concealed material facts but also they misrepresented and misinterpreted the conditions as laid down in the recitals of the  development agreement as stated above. Thus the petitioners deliberately concealed the material facts and so on the ground of equity they are not entitled to any relief as the very recitals in the agreement speak otherwise against them. Further the very development agreement was executed on 20.10.2009 and this case is filed before the Forum on 04.07.2014 i.e., after so many years and thus there is a clear bar in filing of the case being barred by limitation. The acts and conducts of the petitioner before this Forum are mischievous and such frivolous petition must be dismissed imposing punitive cost of Rs. 10,000/- on the petitioners who would be directed to deposit the cost of Rs. 10,000/- by way of demand draft in the name of Consumer Legal Aid Fund within four weeks from the date of this order. However, they may approach proper forum for recovery of money paid by them to the o.ps.     

  In the result, the application fails.

Court fee paid is correct.       

      Hence,                             

O     R     D      E      R      E        D

      That the C. C. Case No. 376 of 2014 ( HDF 376 of 2014 )  be  dismissed on contest with costs against the complainants, who would pay a sum of Rs. 10,000/- as cost in favour of Consumer Legal Aid  Fund within four weeks from the date of this order failing they would be treated as per law.

             Supply the copies of the order to the parties, free of costs.

DICTATED  &    CORRECTED

BY   ME.  

  (    B. D.  Nanda   )                                              

  President,  C.D.R.F., Howrah.