Date of filing: 02/01/2018

Judgment date: 26/04/2023

Mrs. Sashi Kala Basu, Hon’ble President

This complaint is filed by the complainants (1) Sri Somnath Roy and (2) Sri Debnath Roy under section 12 of the Consumer Protection Act, 1986 against the opposite parties (referred as OPs hereinafter) namely (1) Sri Suman Biswas (2) Sri Raj Kumar Dhar and (3) Sri Manick Singh alleging deficiency in rendering of service by the OPs.

Case of the complainant in short is that by a development agreement dated 04/06/2007 entered into between predecessor in interest of complainants namely Narayan Chandra Roy being land owner and the OPs, owner was entitled to entire 2^nd floor and a car parking space in the ground floor as owner’s allocation. After the completion of the building the opposite parties handed over the entire 2^nd floor and a small car parking space in the ground floor. The opposite parties have also installed electric meter in the wall of the small car parking space damaging the wall of the said car parking space. Installation of electric meters could cause accident at any time. The predecessor in interest of the complainants namely Narayan Chandra Roy had complained the matter to the local police station and had also filed an application before the Ld. Executive Magistrate u/s. 144(2) of the Cr. P. Code. The said Narayan Chandra Roy died intestate leaving complainants who are now occupying the building, since opposite parties failed to provide a big size car parking space and also failed to shift the electric meters from the wall of the car parking space, the present complaint has been filed praying for directing the OPs to arrange a big size car parking space, to shift the electric meters from the wall of the said car parking space, construct main gate of the building, complete the painting of the building outside, to pay Rs. 2,00,000/- as compensation, to pay Rs. 2,00,000/- towards unfair trade practice and to pay Rs. 50,000/- as litigation cost.

OP No. 1 is contesting the case by filing written version contending specifically that the complaint is bad for non-joinder of necessary parties. It is contended that OP 1 came to know that Narayan Chandra Roy died leaving behind three sons and 2 daughters as his legal heirs. After the completion of the building OP 1 along with OP 2 & 3 as per the development agreement dated 04/07/2007, handed over the owners allocation to Narayan Chandra Roy (since deceased) who accepted the same with full and final settlement. It is also contended that due to non-cooperation by the land owner Sri Narayan Chandra Roy (since deceased), the deed of sale could not be executed and registered in favour of the intending buyers. It is also stated by the OP 1 that as per direction and desire of Narayan Chandra Roy, the electric meters were installed in the said place. So the OP 1 prays for dismissal of the complaint.

OP 2 & 3 did not turn up and so the case proceeded exparte against them.

During the course of trial complainant and contesting OP 1 filed their respective evidence followed by filing of questionnaire and reply thereto and ultimately argument has been advanced. Complainant and OP also filed the BNA.

So the following points require to be determined:-

1. Whether the complaint is maintainable in his present form?
2. Whether there has been any deficiency of rendering in service on the part of the OPs?
3. Whether the complainants are entitled to the relief as prayed for?   

DECISION WITH REASON

POINT NO. 1.

Present complaint has been filed by the complainants being two sons of the original owner namely Narayan Chandra Roy. But it has been categorically stated by the contesting opposite party no. 1 that the said Narayan Chandra Roy died leaving behind three sons and two daughters. But neither the daughters have been made party in this case nor one another son of the said Narayan Chandra Roy has been made a party. The complainants have filed this case for directing the OPs the developer to hand over a big size car parking space and to shift the electric meters from the wall of the said car parking space. Since the present complainants are not the exclusive owners and there are also other co-owner being the legal heirs of said Narayan Chandra Roy (since deceased), complainants alone are not entitled to the alleged car parking space as prayed. So it is apparent that the present case is bad for non-joinder of necessary parties. However as it is well settled principle of law that the case cannot be dismissed solely on the ground of non-joinder of necessary parties and the opportunity has to be given to the complainants for adding them as party, it has to be considered whether the complainants have been able to establish alleged deficiency in service on the part of the OPs. So this point is answered accordingly.

Point No. 2 & 3

Both these points are taken up together for discussion in order to avoid repetition. Complainants have filed copy of the development agreement entered into between Narayan Chandra Roy the predecessor in interest of the complainants with the OPs on 04/07/2007. On a careful scrutiny of the said agreement, it appears that the owner’s allocation has been specified as “save and except the developers allocation, owner will be entitled to entire 2^nd floor and a car parking space in the ground floor along with undivided proportionate share of land attributable thereto in the said land”. The owner’s allocation has been fully described in schedule ‘B’ of the agreement. But size of the car parking space towards the owners’ allocation has not been mentioned anywhere in the said agreement. Complainants have also not filed any building plan to support their claim that they were entitled to a big size car parking space. So in the absence of any document regarding the size of the car parking space, claim of the complainants that they are entitled to big size car parking space cannot be accepted. There is absolutely no basis to the said claim.

Similarly claim of the complainants about installation of electric meters in the wall of the said car parking space, according to OP 1, same was done as instructed by the owner Narayan Chandra Roy (since deceased). It appears that the development agreement was entered into in the year 2007. The date of handing over the said owner’s allocation has not been stated by the complainants anywhere in the complaint or during the evidence. However as it is evident that the said Narayan Chandra Roy had revoked the Power of Attorney executed in favour of the OPs developer by a registered deed of revocation in the year 2008, it can be safely assumed that prior to revocation of Power of Attorney, possession was handed over to the predecessor in interest of complainants but complainants remained silent for nearly 10 years. No explanation is forthcoming from the complainants as to why they remained silent for 10 years. Moreover if the Power of Attorney executed in favour of the OPs developer has already been revoked and no further Power of Attorney has been executed in favour of the OPs, OPs are not empowered to take step for shifting of the electric meters as prayed by the complainants. Moreover, if the installation of the electric meter was done by the Electricity Departments then the complainants being the co-owners ought to have taken appropriate step before the Electricity Department for shifting of the same if they found it unsafe. So in view of the discussions as highlighted above, as this case is not only bad for non-joinder of the necessary party but also as complainants have failed to establish regarding the size of the car parking space towards owner’s allocation, complainants are not entitled to the relief as prayed for and thus the present complaint is liable to be dismissed.

Hence,

              ORDERED

CC/2/2018 is dismissed on contest against OP 1 and dismissed exparte against OP 2 & 3.