Hon’ble Mr. Kamal De, Presiding Member
Order No. : 16
Date : 21.09.2022
The record is put up today for order.
The instant Appeal is directed against the impugned order dated 24.03.2021 passed in C.C. Case No. 56/2011 by the DCDRC, Purulia.
In filing the Appeal, it is agitated that the Ld. Commission below erred in law and came to an erroneous finding.
It is also stated that the Ld. Commission below made out the third point which is not the case of either of the parties in respect of the super built area.
It is also stated that the Ld. Commission below did not consider the evidences of the complainant and did not consider the case of the complainant that there is deficiency-in-service on the part of the respondent.
It is also ventilated that the complainant purchased a shop room being No. 6 at Bhavani Complex and the complainant measured the shop room and there is shortage or area but the Ld. Commission did not consider the said matter and arrived at an erroneous conclusion.
It is stated that the Ld. Commission below failed to appreciate the facts and circumstances of the case and passed the impugned order arbitrarily against the principal of justice.
It is prayed that the impugned judgement/order should be set aside and the present Appeal should be allowed for the ends of justice.
Points for decisions
Whether the Ld. Commission below erred in law and in fact in passing the impugned judgement?
To put it otherwise whether the Ld. Commission below committed any illegality, irregularity or impropriety in passing the impugned judgement?
The case of the complainant in short is that the complainant is running a business under name and style “Dutta Xerox” within the Municipality Complex room being No. 12 of B.T. Sarkar Road.
The said shop room is on the ground floor.
It is alleged by the complainant that the complainant purchased shop room being No. G – 6 with an area of 173.10 sq. ft. in the ground floor of Bhavani Complex on 11th June, 2006 vide Deed No. 1215 on 2006 at the consideration of Rs. 1,38,000/- and took possession of the said room and has been running his business there for his livelihood by means of self-employment.
The complainant has alleged that the OP on all of sudden sent a notice dated 28.02.2018 claiming maintenance charges and on receiving the said notice after 14 years, he engaged one Amin for measurement of shop room being No. G – 6 and after measurement found an area of 138.70 sq. ft. along with varandah and found no passage for the customer as per sanctioned plan of Purulia Municipality.
It is alleged that the OPs illegally sold showing an excess area and took excess consideration of Rs. 27,132/- and there was in fact shortage of 34.32 sq. ft. complainant also requested OP to refund excess consideration price but the OP refused to pay.
OPs have come up with case that complainant was not paying monthly maintenance charges as per recital of said Deed and OP filed T.S. maintenance @ Rs. 2/- per sq. ft.
It is stated by the OPs that the OP constructed the said commercial Bhavani Complex as per sanctioned plan of Purulia Municipality with 5 ft. varandah in front of the shop room for the use of the customer.
There was no provision of both room or toilet in the ground floor of the said complex.
It is also alleged by the OPs that one Bhajan Mahanta purchased two shop rooms being No. 9 and 10 in the Bhabani Complex on 26.03.2008 vide Deed No. 1469 of 2008 and said Deed it was mentioned that vendee would pay the monthly maintenance charges @ Rs. 2/- sq. ft. and said Bhajan Mahanta sold the said two shop rooms to the complainant on 26.04.2012 and the complainant prepared his Sale Deed in violation of the recital of the matter Deed and the complainant has been running two said shop rooms being Nos. 9 and 10 as godown.
It is also alleged by OPs that other shop owners of Bhabani Complex has been paying the maintenance charges in their respective rooms @ Rs. 2 sq. ft. to the vendor.
It is also alleged by the OPs that they have no knowledge whether any Amin was engaged by the complainant to take the management of the shop room being No. 6.
The OPs have also alleged that the complainant purchased G-6 shop room being No. 6 area 173.10 sq. ft. after inspection of the shop room.
It is alleged by the OP that there was no deficiency-in-service and the complainant is not entitled refund of Rs. 27132/- as claimed and the OPs prayed for dismissal of the case.
Ld. Commission below on taking evidences and considering other materials on record was pleased to dismissed the case on contest.
Appellant/complainant being aggrieved and dissatisfied impugned judgement dated 24.03.2021 preferred the instant Appeal.
We have perused the documents on record.
Appellant as we find purchased shop room No. G – 6 from the respondents on 11th Day of June, 2004 vide Deed No. 1215 for the year 2006 of the office of the A.D.S.R., Purulia.
Save and excepting shop room G- 6 of Bhavani Complex B.T. Sarkar Road, Purulia, the respondents have not sold any other shop room directly to the appellant and subsequently the appellant along with his son Prabir Dutta jointly purchased two other shop rooms being Nos. 9 and 10 from one Bhajan Mahanti @ Bhajan Bihari Mahanti by registered Deed of Sale being No. 2711 for the year 2012 of the officer of the A.D.S.R., Purulia. In the mother Deed by which Bhajan Mahanti @ Bhajan Bihari Mahanti became the owner of the shop room Nos. 9 and 10 of Bhavani Complex, it was specifically stipulated that maintenance charges @ Rs. 2/- per sq. ft. is payable. Perused the Lawyer notice dated 28.02.2018 through Ld. Advocate Himadri Chatterjee by the OPs to the vendee Probodh Dutta and Prabir Dutta for maintenance charges in respect of shop room Nos. 9 and 10. The legal notice was with regard to shop room No. 9 and 10 and not with regard to shop room No. 6 of Bhavani Complex. The Ops did not send any notice to the complainant relating to shop room No. G-6 and the legal notice was sent in respect of two shop rooms being No. 9 and 10. So, it appears that the complainant has no apparent cause of action to file the case in respect of shop room No. 6.
It is also alleged by the appellant that the area of shop room No. G-6 is 138.70 sq. ft. instead of 173.10 sq. ft. It is also alleged by the appellant that Ops sold less area of 34.32 sq.ft. to the complainant appellant. But we are afraid no survey passed commissioner was appointed through the Ld. Commission below for measurement of the actual area of shop room being No. G-6.
It appears from record that complainant at the Lower Court below filed an application for appointment of survey passed commissioner in CC Case No. 56/2018.
Ops preferred a revision against the impugned order being No. 25 dated 25.07.2019 passed by the Ld. DCDRC, Purulia in CC Case NO. 56/2018.
It is not out of place to mention that Ops in the Commission below filed a petition challenging the maintainability of the case alleging that the complainant is no longer a consumer as defined in C.P. Act and also that the complaint case is barred u/s. 24 A (2) of C.P. Act 1986. Ld. Commission below allowed the petition for survey passed commissioner without hearing or disposing the petition of the maintainability of the case. This Commission, however, directed the Ld. Commission below dispose the petition of maintainability at the first instance in accordance to law.
The revision was allowed by this Commission with observations that as Ops have already filed a petition challenging the maintainability of the case which was filed after long lapse of 14 years and the transaction between the parties was completed long 14 years back, such petition was required to the heard at the first instance and this Commission directed the Ld. Commission below to dispose the petition of maintainability at the first instance in accordance to law.
Ld. Commission below in the impugned judgement in point No. 1 has held that the complainant is a consumer as per the provision U/Sec. 2 (1) (d) of C.P. Act.
Ld. Commission below, however, held that the notice dated 28.02.2018 is with regard to shop room No. 9 and 10 and that the Ops did not send any notice in respect of shop room No. G-6.
Ld. Commission below accordingly held that there was no cause of action in file the case in respect of shop room No. G- 6 and the complainant had no cause of action to file the case and the case is barred U/Sec. 24 (a) of C.P. Act.
It appears that the complainant in C.C. Case No. 56/2018 did not subsequently file any petition for appointment of survey passed commissioner after passing of Order No. 03 dated 17.10.2019 in R.P. 3 of 2019 of this Commission. So, no survey passed commission was held in respect of shop room No. G-6 to ascertain its area.
It appears that the Ops did not send any notice to the complainant relating to shop room No. G-6 but sent the notice in respect of two shop rooms being Nos. 9 and 10. So, it is apparent that the complainant has no cause of action to file this case. No survey passed commission is also appointed at the instance of the complainant for measurement of the actual area of shop room No. G-6. Moreover, it appears that the transaction in between the parties in respect of shop room No. G-6 was completed 14 years back and the complainant purposefully raised the issue of the area of shop room No. G-6 after lapse of 14 years from the date of registration of the Sale Deeds. So, it is apparent that complainant out of animosity for non-payment of maintenance charges in respect of shop rooms Nos. 9 and 10 has filed the instant case after a lapse of long 14 years and also raised dispute regarding area of the shop room after long lapse of 14 years.
The apprehension of the appellant that the Ops have claimed maintenance charges in respect of shop room being No. G-6 has no leg to stand.
We do not find any illegality or irregularity in the impugned judgement passed by the Ld. Commission below.
The instant Appeal accordingly merits no success.
Hence,
ORDERED
That the instant Appeal being No. A/5/2021 be and the same is dismissed on contest.
The impugned judgement dated 24.03.2021 passed in CC Case No. 56/2018 by the DCDRC, Purulia is upheld.
We make no order as to cost.
Let a copy of this judgement be supplied to the parties free of cost.
