West Bengal

Paschim Midnapore

CC/180/2016

Sahadeb Chaira - Complainant(s)

Versus

Smt. Gouri Bhattacharya - Opp.Party(s)

24 Jul 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

                    PASCHIM MEDINIPUR.                             

Bibekananda Pramanik, President,

and

Pulak Kumar Singha, Member

 

    Complaint Case No.180/2016

 

    Sahadeb Chaira, S/o Sri Bangshi Mohan Chaira, Village & P.O. Mangalbandi,

         P.S.Garhbeta, Dist-Paschim Medinipur…..………Complainant

Versus

1. Smt. Gouri Bhattacharya, w/o Rashbehari Bhattacharya,
2. Nandini Bhattacharya, D/o Late Rashbehari Bhattacharya, residing at V/40, Saratpally, P.O. & P.S. Medinipur, Dist-Paschim Medinipur, Pin-721101………….Ops.

 

For the Complainant:  Pulakananda Mondal, Advocate.

For the O.P.             :  Soumen Das, Advocate.

                 

                                                 Decided on: - 24/07/2017                             

                  ORDER

            Pulak Kumar Singha, Member : 

 

            Complainant filed this case u/s-12 of the Consumer Protection Act, 1986.

            In brief the case of the complainant is that the complainant purchased land with building in plot no.43/101 L.R. Plot nos.523 and 524 of mouza Naranpur, J.L. no.174 measuring 0.600 acres from O.P. nos.1&2 by a consideration money of Rs.15,00,000/- vide registration deed no.7005/2014 dated 18/8/2014.  But O.Ps did not deliver khash

 

Contd………..P/2

                                         

                                                              ( 2 )

possession of the said property to the complainant in spite of repeated calls and demands, rather O.Ps have file several false and fictitious cases against this complainant.  O.Ps are bound to give khash possession of the property in question as they have received full consideration amount but O.Ps did not pay heed to the claim of the complainant.  Complainant finding no alternative approached before this Forum for getting an order as per prayer of his complaint. 

            O.ps have contested this case by filing written objection denying the allegation of the complainant, stating inter alia that the complainant is not a consumer of the C.P. Act as such the complaint is not maintainable.  O.Ps decided to sell the plots with building and consideration money was fixed Rs.15,00,000/- (Rs. Fifteen lakhs only) but the complainant paid only Rs.7,30,000/- and on good faith O.Ps executed registered sale deed in favour of complainant as it was settled between the parties when the petitioner will pay the balance amount to the O.Ps, then O.Ps will deliver the possession of the property in question.  O.Ps have filed money suit being no.78/14 in the Ld. court of Civil Judge (Sr. Div.) first court Medinipur for recovery of money and the said case is pending.  As the matter in issue is sub-judice in the Civil Court, so the complaint is not maintainable before this Forum and O.Ps prayed for dismissal of the complaint. 

            In the light of the rival contention the following points arise for determination in order to arrive at a conclusion for determination of this complaint. 

1. Whether the complaint is barred by law of limitation.
2. Whether the complaint is maintainable as per Sec. 2(d) of C.P. Act 1986.
3. Whether the O.Ps are deficiency in service for not deliver the khash possession of the property in question.
4. Whether the complainant is entitled to get relief as prayed for.

 

Decision with reasons

 

It is fact the complainant was filed this case beyond the period of limitation as per C.P. Act but complainant files a limitation petition alongwith the complaint which has already condoned by this Forum vide order dated 7/12/2016.  So the question of limitation cannot be urged at this stage and this issue is against this O.Ps.

            Complainant is a consumer as per Sec.2(d) of C.P. Act as between the complainant and O.Ps an agreement was made and in the sale deed of agreement complainant is a purchaser and the O.Ps are seller of the property.  So this complaint is well maintainable

 

Contd………..P/3

                                                                                                                       

                                                         ( 3 )

as per act and complainant is a consumer and this Forum has jurisdiction to try this case as such issue no.2 is in favour of the complainant.

            It reveals from the certified copy of sale deed dated 12/08/2014 at page 5 sale price of the property in question was settled of Rs.15,00,000/- and purchaser i.e. the complainant paid the purchased price i.e Rs.15,00,000/- only to the vendors/O.Ps and at page 6 of the sale deed it is specifically maintained that the vendors do hereby sellout transfer and convey schedule below landed property specifically described  in the schedule below unto the purchaser by this deed of sale and deliver the Khash possession of the same….. with all casement rights.

           

            It appears from the sale deed of the property in question that vendors i.e. both O.Ps have received the full settled agreed amount of Rs.15,00,000/- from the purchaser i.e. the complainant and after that executed the sale deed in favour of purchaser/complainant.  Execution of sale deed is a concluded contract.  It is settled principal that after payment of full consideration money to the vendor/seller a sale deed is executed.

            O.Ps stated in the written objection that complainant paid Rs.7,30,000/- only out of settle sale amount of Rs.15,00,000/- and O.Ps on good faith executed the sale deed.  It is nothing but a cock and bull story of O.Ps and none can believe it.  O.Ps did not adduce any evidence or establish their case by cogent evidence.  On the other hand, complainant adduced evidence by filing affidavit and tender on oath and in support of his case submitted certified copy of sale deed and related document which are marked as (exhibit 1 to 4).  The O.Ps stated in their written objection that O.Ps have filed a money suit in the court of Civil Judge (Sr. Div.) being no.78/14 at Paschim Medinipur for recovery of money from complainant.  But in C/W this money suit it appears from the order dated 19/09/2014, Ld. Civil Judge refused the prayer of interim injunction as there is no prima facie case of the O.Ps and also passed an order dated 27/11/2014 that the said money suit no.78/14 is dismissed for default.

            From the documents and evidence on record we find that denial of the receipt of full amount by O.Ps as without any basis on whole, O.Ps have received the total sum of Rs.15,00,000/- which reveals in the receipt of the sale deed in page 8 below the  scheduled of said sale deed, it is admitted fact that the Khash possession of the property is not

 

Contd………..P/4

                                          

                                                                             

                                                              ( 4 )

delivered to the complainant.  Both parties are governed by the terms of the agreement and it is to be read as a whole that the O.Ps have violated their liability in terms clause in the agreement to deliver Khash possession.  In terms of agreement on account of non-delivery of Khash possession would undoubtedly constitute deficiency in service.  Hence hold this point in the affirmative. 

Under such circumstances O.Ps failed to render service to the complainant as per agreement of sale deed.  So the complainant is entitled to get an order with compensation.

            In view of the discussions here in above we hold that O.Ps are deliberately negligent and deficient in rendering service rather harass the complainant for which complainant has been suffering mental, pain and agony and also monitory loss for which O.Ps are liable to pay compensation. 

 

          Thus the complaint case succeeds.

                                      Hence, it is,

                                                        ORDERED,

                                     that the complaint case be and the same is allowed on contest with cost against O.Ps.                                         

                O.Ps are directed to deliver Khash possession of property in question as per sale deed executed by O.Ps being deed no.7005/2014 dated 12/08/2014, alternatively refund the consideration money  Rs.15,00,000/-(Rupees fifteen lakhs ) only with interest @ 10% interest from 12/08/2014  within one month to the complainant.                   

              O.Ps. are further directed to pay Rs.50,000/-(Rupees fifty thousand) only as compensation for harassment, mental pain and agony and also pay Rs.10,000/- (Rs. Ten thousand) only as litigation cost  to the complainant within stipulated period.

              Failure to comply the order O.Ps. shall be liable to pay Rs.5000/- (Rupees five thousand) only per month to be paid to the Legal Aid account to this Forum till date of full realization.

Dictated and Corrected by me

         

               

 

               Member                                                                        President

                                                                                               District Forum

                                                                                            Paschim Medinipur