DATE OF FILING : 02-11-2010.
DATE OF FINAL ORDER : 25-03-2011.
DATE OF REMAND FROM NATIONAL COMMISSION : 24.03.2014.
DATE OF FINAL ORDER : 11.02.2016.
Smt. Pritikana Saharoy,
wife of Dr. Bikash Saharoy,
residing at “Jyoti Bhawan”, Kalitala Lane,
P.O. Podrah, P.S. Sankrail,
District –Howrah,
PIN – 711109………………………………………………. COMPLAINANT.
Smt. Durga Mondal,
wife of Protap Mondal,
residing at Village and P.O. Podrah,
P.S. Sankrail,
District – Howrah,
PIN – 711109………………………………………..……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 U/S 12 of the C.P. Act, 1986 filed by the petitioner, Smt. Pritikana Saharoy, against the o.p., Smt. Durga Mondal, praying for directing the o.p. to complete the remaining work of the flat forthwith and handover possession of the same and execute and register deed of conveyance and also directing o.p. to pay compensation to the tune of Rs. 1 lakh against the loss suffered by the petitioner and also directing the o.p. to pay a sum of Rs. 50,000/- for the mental and physical sufferings of the petitioner and also direct the o.p. to pay Rs. 15,000/- as litigation costs and for further reliefs.
2. The case of the complainant before the District Forum, in brief, was that the complainant entered into an agreement with the o.p. for purchasing a flat at Mouza – Podrah, District Howrah, measuring 1600 sq. ft. including super built area in the second floor of the housing project for a consideration of Rs.16,00,000/-. According to the complainant, before entering into an agreement with the o.p. the complainant paid Rs. 4,00,000/- towards part payment of the consideration amount and subsequently paid some more amounts thereby totaling Rs. 8,80,000/- to the o.p. by way of part payment. It was the further case of the complainant that the o.p. without any rhyme and reason indulged herself in unauthorized construction, which compelled the complainant to inform the authorities concerned in this regard and that the o.p. intentionally stopped construction works in the housing project to the detriment of interest of the complainant, which, according to the complainant, tantamount to deficiency in service. According to the complainant, in order to exonerate herself the o.p. took an illegal method by way of instituting a false civil litigation against the complainant and the complainant had to secure her interest by obtaining an order of injunction in her favour. This enraged the o.p., who instituted a criminal case against the complainant on all false and fictitious grounds. The o.p. having utterly failed to deliver possession of the flat in qeustion in favour of the complainant within the stipulated period after accepting the balance amount from the complainant there was no alternative left before the complainant but to institute the consumer complaint for proper redressal.
3. The o.p. contested the consumer complaint by filing a written version thereby denying and disputing all the material allegations mentioned in the petition of complaint contending inter alia that there was no latches and/or deficiency in service at the instance of the o.p., as claimed by the complainant. The complainant intentionally withheld the payment of the balance amount and in spite of repeated requests and demands by the o.p. never paid the balance amount, for which none else but the complainant is to be blamed. The flat is almost ready in all respect, but as the complainant is not willing to make the balance payment, question of fulfilling the contract entered into by and between the parties does not arise at all. As the complainant tried to take forcible possession of the flat in question, the o.p. had to take recourse to civil litigation and had to obtain injunction against the complainant. As the civil litigation is pending over the self same matter, the consumer complaint is not maintainable and the same is liable to be dismissed with costs.
4. On the above cases of the parties this Forum framed one issue, namely, whether the application filed by the complainant is liable to be allowed or not ?
5. While disposing the case this Forum opined that over the self same matter civil case has been pending and the points raised therein are almost same and identical and so the Forum was of the view that the matter in dispute which touches the civil dispute in between the parties and so there is no scope for giving relief to the complainant under the C.P. Act, 1986. This Forum further opined that the civil court has already invoked its jurisdiction and directed the parties to maintain statuesque there and so there is no scope in invoking jurisdiction by this Consumer Forum and also the o.p. of this case never made any violation of any of the terms as stipulated in the agreement for sale between the parties. The Forum thus opined that the petitioner has failed to substantiate this case and so not entitled to any relief and she can seek relief before the Civil Court and so this Forum dismissed case no. HDF 85 of 2010 on contest on 25.03.2011 when the case was filed on 02.11.2010.
6. Being aggrieved and dissatisfied with the said judgment and order passed by this Forum on 25.03.2011 the petitioner appealed against the said order dated 25.03.2011 before the State Commission, West Bengal, which heard this case and disposed of on 07.3.2013 confirming the impugned order passed by this Forum and thus dismissed the appeal of the appellant / petitioner on contest without any cost opining that the proposition of law as laid down and the above matter is that during the pendency of civil litigation including writ before the Hon’ble High Court over the self same matter the question of entertaining consumer complaint does not arise and they also referred to two judgments being Vol. IV ( 2012 ) CPJ NC page 38 and Vol. III ( 2009 ) CPJ page 417.
7. Again being aggrieved and dissatisfied with the said order of the State Commission the petitioner / appellant filed revision petition before the National Commission being no. 2751 of 2013 wherein the National Commission set aside the order passed by this District Forum as well as the State Commission and directed this Forum to decide the case on merit and also the National Commission gave opportunities to the parties to appear before the District Forum. The National Commission at length dealt with Section 3 of C. P. Act, 1986 and directed this District Forum to decide the case as per law keeping in mind that there is statuesque order passed by the Civil Court.
8. In view of above this Forum took up the C.C. No. 85 of 2010 afresh and on scrutiny of the cases of the parties framed issued :
( i ) Whether the case is maintainable in its present form ?
(ii) Whether the petitioner has cause of action to file this case ?
(iii) Whether there is any deficiency in service on the part of the o.p.?
(iv) Whether the petitioner is entitled to the relief as prayed for ?
9. DECISION WITH REASONS :
Keeping in mind the decision of the National Commission this Forum is to decide the case as per law and also to keep in mind that there is a statuesque order passed by the Civil Court and also civil litigation pending before the Civil Court. In the instant case the petitioner filed this case praying for a direction upon the o.p. to complete the remaining work of the flat and handover possession to her and execute and register the deed of conveyance in her favour and also to pay compensation and litigation costs. This Forum on the earlier occasion on 25.3.2011 dismissed the case on contest against the o.p.without cost opining that civil court has already invoked its jurisdiction and directed the parties to maintain statuesque and so there is no scope for invoking jurisdiction of this Consumer Forum and the o.p. never made any violation of the terms as stipulated in the agreement and also the petitioner failed to substantiate her case and so the case was dismissed.
10. The State Commission, West Bengal, also opined in the same tune as this District Forum on 07.03.2013 stating that admittedly the real controversy between the parties involves diverse points of law including the dispute of civil nature and so when civil litigation initiated at the instance of both parties and those cases are pending then in the opinion of the State Commission the final order passed by this District Forum was quite proper and the State Commission W.B., affirmed the order of the District Forum. The petitioner revisionist, Pritikana Saharoy, filed revision against the order of State Commission, W.B., before the National Commission which allowed the revision petition opining that the District Forum has to hear the matter afresh as per law keeping in mind that the statuesque order granted by Civil Court and obviously the National Commission set aside the final order passed by the State Commission.
11. Under the above circumstances we are going to look into the matter afresh with facts and prayer that the petitioner / Pritikana Saharoy filed this case praying for directing the o.p. Durga Mondal, promoter / developer to complete the remaining work of flat and hand over possession of the same and to execute and register the deed of conveyance in her favour and also compensation and litigation costs. Since 2010 when this consumer case was filed on 02.11.2010 other civil as well as criminal cases filed in different courts as well as writ petition before the Hon’ble High Court. Our National Commission set aside the order of the State Commission and thus we can say that in spite of several cases pending the Forum has jurisdiction to entertain this matter. However, the same needs a thorough understanding of the subject as laid down in Section 3 of the C.P. Act, 1986. It is categorically mentioned in Section 3 of the C.P. Act, 1986 that the provisions of this Act shall be in addition to and not in derogation of the provision of any other law for the time being in force. Thus Section 3 of the C.P. Act, 1986 provides that the provisions of the Act are in addition to and not in derogation of any other law for the time being in force when the said statute having no clear bar. Thus it must be kept in mind that the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act as
this Act was passed to supplement the other acts which are available now to ameliorate the sufferings of the people. The legislature intended to provide a remedy in addition to the available statute which could be enforced in proper cases and thus this C.P. Act, 1986 is in addition to and not in derogation. The parliament intended to pass this Act to relieve the consumer of the cumbersome proceedings of the civil court and so this statute was passed to give cheap and quick justice to the people and thus the provisions of this Act are always in addition and no in derogation and never ignoring the other provisions of the other acts. Our Supreme Court as well as our National Commission on several decisions opined in the same tune as is understood by this Forum are finds that this Act acts as a supplement and never supplant the civil court or other statutory authority. The litigants have every right to go to the civil court when they require and such opportunity is also provided to them U/S 3 which reserves the right of the consumers to go to the civil court. Thus in the instant consumer case the petitioner praying for getting her flat is well maintainable as his civil suit for specific performance of contract was a later one and here she can get quick justice.
12. In the instant case the petitioner filed this case CC 85 of 2010 on 02.11.2010 and again filed one civil suit before the Civil Court at Howrah being a suit for Specific Performance of Contract being T.S. 165 of 2012. The o.p. of this case, Durga Mondal, filed one Civil Suit no. 8 of 2010 on 11.01.2010 which was a declaratory suit and wherein the plaintiff, Durga Mondal (o.p.of this case), prayed before the ld. Civil Judge to pass for a decree for declaration that the
plaintiff was the absolute and exclusive owner and occupier of the property mentioned in schedule ‘A’ of the plaint which is nothing but more or less same land on which building was constructed by said Durga Mondal and for a flat in the 2nd floor of the same building the petitioner of this consumer case entered into an agreement with her and also filed this case as the o.p. did not hand over possession and also did not execute the sale deed etc.
13. In this consumer case being no. 85 of 2010 this petitioner, Pritikana Saharoy, prayed for a direction on the o.p. to complete the flat forthwith and hand over possession to her and execute and register the deed of conveyance but in the T.S. No. 8 of 2010 which was filed on 11.01.2010 i.e., being a previous suit the o.p. prayed for a decree for declaration that the plaintiff therein being Durga Mondal was the absolute and exclusive owner and occupier of the property. The issues are thus clearly different and so this civil suit cannot be a bar for the proceeding of this consumer case where the petitioner prayed for getting his flat execution and registration in her favour by the o.p. The Hon’ble National Commission while setting aside the order of the State Commission directed this Forum to decide the case as per law keeping in mind the statuesqua order passed by the civil court, this Forum finds that one order was passed by ld. Civil Judge, Sr. Division, 3rd Court, Howrah, on 127.01.2014 directing the parties to maintain statuesque over the suit property in respect of the nature and character of the same and the ld. Civil Court directed the o.p. not to alienate the suit till the disposal of the title suit i.e., T.S. No. 165 of 2012.
14. It is noticed from the above order of injunction dated 17.01.2014 passed by the Ld. Civil Judge, Sr. Division, 3rd Court, Howrah, that the ld. Court heard the injunction against the o.p. The petitioner of our case was the plaintiff of this T.S. 165 of 2012 and the o.p. of our case was the defendant of the above title suit. While disposing of the temporary injunction the ld. Judge directed the parties to maintain statuesque order over the suit property in respect of nature and character of the same till the disposal of the suit and passing such an order of temporary injunction is to protect the suit property till the disposal of the case on merit. Thus the very injunction order shows that it was not a permanent injunction but a temporary injunction and such orders are passed to prevent the parties not to change the nature and character of the same until the final issues are disposed of after proper adjudication of the case. Thus the temporary injunction order passed by the ld. Civil Judge being a court of concurrent jurisdiction in a suit which was filed two years later to this consumer case cannot be a bar on this Consumer Forum which is to decide this case of a consumer which was filed in the year 2010 and disposing of such a case here is never inderogation or ignoring the civil court which passed no final order and thus there is no question of ignoring the civil cases pending before the Civil Court as the same issue would be decided here by a competent forum. If this Forum does not dispose of the case at the earliest opportunity then the very purpose and object of the Act would be frustrated because this Act was passed to give cheap and quick relief to the consumers and such reliefs be given in addition to the matters pending before the Civil Courts. It is true that before the Civil Court self same matter has been pending but this civil suit filed in 2010 and the civil matter pending since 2012. Being a later suit this Forum cannot deal further in disposing of this case as both this Consumer Court as well as the Civil Court are courts of competent jurisdiction to decide an issue. By passing this final order under the C.P. Act, 1986 this Forum simply supplements the jurisdiction of the Civil Court as the purpose of this Act is to act in addition to the provisions of the law for the time being in force. It is true that the petitioner has every right to approach a civil court and so the petitioner has approached the civil court after 2/3 years but the same does not mean that he has shown any interest to withdraw this case and rather very much continuing in this case praying for early disposal. So this Forum is of opinion that even if there is a statuesque order pending till the disposal of the case on merit in the suit for protection of property yet the said temporary injunction order would never be a bar to dispose of the case before this Forum as disposal of the case before the Consumer Forum would in no way to change the nature and character of the said property rather the disposal of the case would ameliorate the sufferings petitioner who has been running from Consumer Forum to Civil Court and Civil Court to Criminal Court and also the Hon’ble High Court and the same object of the petitioner would be fulfilled as in the civil court. .
15. While looking on this case this Forum finds that the petitioner, Pritikana Saharoy, filed affidavit as well as documents being the agreement for sale of flat measuring about 1600 sq. ft. and the agreement being made between her and the o.p., Durga Mondal, being the promoter / developer and his payment receipts showing payment of Rs. 8,80,000/- duly received by the o.p., Durga Mondal, out of the total consideration of Rs. 16 lakhs. These documents proved the case of the petitioner that she made an agreement with the o.p., Durgal Mondal, on 09.07.2009 for purchase of the suit flat being 1600 sq. ft. at a consideration of Rs. 16 lakhs and out of which she had already paid Rs. 8.8. lakhs and now she comes before the Forum directing the o.p. to hand over the possession of the suit flat of her and also execute and register the deed of conveyance in her favour and also compensation and litigations costs. The documents filed by the petitioner proved her case. It is noticed from the contention of the deed of agreement that per sq. ft. price of the suit flat was Rs. 1,000/- and for 1600 sq. ft. the total consideration money was Rs. 16 lakhs and the payment of the consideration would be made being 25% at the time of booking up to roof casting and 30% at the time of brick works and rest 30% after flooring,electricity, door and window fittings and rest 15% at the time of registration. It is noticed from the documents that till 15.10.2009 the o.p., Durga Mondal, received Rs. 8.80,000/-. Thus the petitioner out of the four installments already paid two installments within 15.10.2009 making his first installment on 09.7.2009 when the agreement was done and there was a due amount of Rs. 7,20,000/-. Thus after payment of two installments of the consideration the petitioner was to pay another 30% for flooring and electricity but the petitioner submits that the o.p. never completed the flat and so no payment was made. The o.p. denied the above facts of the petitioner and submitted that the petitioner did not pay the whole consideration as per terms of agreement and so the execution and registration was not made and possession also not handed over. Thus the o.p. does not deny to hand over possession to petitioner and never denied to execute and register the deed of conveyance.
16. This Forum had gone through the affidavit of evidence of the petitioner, Smt. Pritikana Saharoy, along with her documents and also the affidavit of evidence on behalf of o.p., Durga Mondal. Regarding the pending civil matters this Forum had already decided earlier that in spite of civil cases pending before the ld. Civil Judges at Howrah, this Forum can hear this matter as this case before the Forum is an older one being C.C. No. 85 of 2010 and the civil cases before the Civil Judge with same issues being T.S. 165 of 2012 filed by this petitioner and thus this C.C. No. 85 of 2010 being an elder case with same issues can be decided even if temporary statuesqua order passed by the ld. Civil Judge in the civil suit which was just to protect the property till the disposal of the case.
17. It is true that the o.p. of this case, Durga Mondal, filed T.S. No. 8 of 2010 but that was as suit for declaration of title of the said plaintiff and the issues being different and this elder suit 8 of 2010 cannot be a bar to her in filing this C.C. No. 85 of 2010 before this Forum as already decided by this Forum previously as the issues are substantially different in the two cases.
18. Now it is the admitted position that the petitioner entered into an agreement with the o.p. for purchase of a flat in question by the petitioner, Pritikan Saharoy, from the o.p., Durga Mondal, and the petitioner having already paid a substantial amount out of the total consideration money of Rs. 16 lakhs in respect of said flat, this Forum finds no reason to disagree with her prayer. This Forum had already considered the submission of the ld. counsels for the petitioner as well as the o.ps. and also gone through the materials on record including the sale agreement dated 09.07.2009 wherein laid down that the petitioner would purchase a flat of 1600 sq. ft. including super built up area in the second floor of the G+ 4 building as mentioned in the schedule ‘A’ of the said agreement. In the schedule ‘B’ of the agreement there is specific mention of the flat to be purchased at a consideration of Rs. 16 lakhs an out of the same the petitioner paid a considerable amount of Rs. 8,80,000/- as could be noticed from the last part of the agreement being duly signed by the o.p., Durga Mondal. Thus it is crystal clear that the petitioner is entitled to get the case mentioned flat registered in her name by the o.p. after receiving the due amount of Rs. 7,20,000/-. There is no document coming from the o.p. that the petitioner would be denied to get the said flat as payment was not made as per the terms of agreement. On the other hand it is noticed that as per terms of agreement the petitioner already paid about 55% of the consideration money and no document produced by the o.p. that the suit flat has been constructed completely and ready for execution and registration and handing over possession to the petitioner. Thus as per terms and conditions as stated in the agreement the petitioner paying more than half of the consideration money within 15.10.2009 this Forum finds no reason as to what prompted the o.p. deny to handover the possession to the petitioner and execute and register the sale deed in her favour by receiving the due amount from her.
19. Thus in view of above discussion and findgs this Forum finds that the temporary injunction order, the object of which is the protection of property and not to debar a competent Forum to dispose of the case and also the same civil suit with different issues to be decided filed by the o.p. Durgal Mondal, not being a bar for disposal of this case and also the civil suit filed by this petitioner, Pritikana Saharoy, with same issues and being a later suit this Forum finds no reason to dispose of this case with same issues as this is an elder case and also this Forum is also a Forum of competent jurisdiction to dispose of the matter as this Forum is to supplement the civil court and never to replace the civil court and so the Forum dispose of this case in favour of the petitioner who has succeeded in proving that she had already paid over 50% of the consideration money and ready to pay the due amount to the o.p. who is to execute and register the deed of conveyance in her favour. In the instant case the agreement was signed on 09.07.2009 and more than 50% of consideration money was paid within 15.10.2009 and thus no negligence would be found on the part of the petitioner rather in the absence of any cogent document coming from the o.p. that she completed the construction asking the petitioner to pay the due amount and get the case property registered in her name, this Forum finds deficiency in service as well as negligence on the part of o.p.
In view of above discussion and findings this Forum finds that the petitioner is entitled to get the reliefs as prayed for as she has succeeded to substantiate her case.
In the result, the claim case succeeds.
Court fee paid is correct.
Hence,
O R D E R E D
That the C.C. No. 85 of 2010 be and the same is allowed on contest with costs of Rs. 10,000/- be paid by the o.p. to the petitioner.
The petitioner is entitled to the other reliefs and the o.p. is directed to hand over possession of the ‘B’ schedule mentioned flat to the petitioner within 60 days from the date of this order after executing and registering the deed of conveyance in her favour after receiving the due amount of Rs. 7,20,000/-.
The petitioner is also entitled to compensation for a sum of Rs. 50,000/- for such long sufferings in the hand of the o.p., Durga Mondal, who is directed to comply the above order of the Forum within the stipulated 60 days from the date of this order failing the petitioner would be at liberty to put the order in execution.
Supply the copies of the order be supplied to the parties, free of costs.
DICTATED & CORRECTED
BY ME.
( B. D. Nanda )
President, C.D.R.F., Howrah.
