DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __94_ _ OF ___2011
DATE OF FILING : 26.4.2011 DATE OF PASSING JUDGEMENT: 12.12 .2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : 1. Sri Pranabendra Mohan Mitra, son of late Birendra Mohan Mitra of 100A, Banerjee Para Lane, P.S Jadavpur, Kolkata-31 and presently residing at 60A/2, Bosepukur Road, 4th floor, flat no.4A, P.S Kasba, Kolkata – 42.
2. SWri Parthapratim Mitra, son of Pranabendra Mohan Mitra of 60A/2, Bosepukur Road, 4th floor, flat no.4A, P.S Kasba, Kolkata – 42
O.P/O.Ps : 1. Smt. Lekha Dasgupta, wife of late Pranab Kumar Gupta, Sole Proprietor of M/s Pracons at 61/4, Dhakuria Station Road, Jadavpur, Kolkata – 31.
2. Sri Somnath Mukherjee, son of late Presh Nath Mukherjee of 30, Banerjee Para Lane, Dhakuria, P.S Jadavpur, Kolkata-31.
3. Sri Amarnath Mukherjee, son of late late Presh Nath Mukherjee of 30, Banerjee Para Lane, Dhakuria, P.S Jadavpur, Kolkata-31
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J U D G M E N T
Sri Ananta Kumar Kapri, President
When the complainants ‘prayer for refund of consideration money paid to O.P-1 i.e the developer was turned down in S.C. FA/418/2008 by the Hon’ble State Commission, which was filed by O.P-1 challenging the order of District Forum, passed in D.F case no. 246 of 2007 on 30.9.2006 and subsequently when the order of the Hon’ble State Commission was confirmed by the Hon’ble National Commission in Revision Case no. 1821/2009, dismissing the revision filed by the complainants, the complainants have come up before this Forum again with the filing of the instant case ,alleging deficiency in service on the part of the developer i.e O.P-1.
The facts leading to the filing of the instant case , as it stands in the amended petition of complaint dated 28.2.2018 filed by the complainant, may be epitomized as follows.
Complainant purchased a flat as described in schedule to the complaint along with his wife namely Mina Mitra. The wife is dead now and her only legal heir i.e complainant-2 has been substituted in the complaint.
The O.P-1 is the developer and O.P nos. 2 and 3 are land owners . A sale agreement was materialized on 15.4.2002 by the original complainants with O.P nos. 1,2 and 3 and thereby the developer agreed to sell a flat of 646 s.ft super built up area on the first floor of the building succinctly described in Schedule to the complaint for a consideration price of Rs.5,81,000/- . The complainants paid Rs.5,50,000/- to the developer on different dates. The possession fo the flat was delivered to the complainants on 9.3.2006 , vide the developer’s letter dated 9.3.2006. But, the said flat was in incomplete condition and, therefore, the complainant could not reside there . They have kept it under lock and key. Deed of conveyance has not also been executed and registered in favour of the complainants by the developer. Legal notice dated 15.3.2011 served by the complainants on the developer has also failed to evoke any positive response on the part of the developer. Therefore, the complainants have filed the instant case ,praying for registration of the flat, payment of compensation etc. Hence, the case.
The O.P-1 has been contesting the case by filing written statement ,wherein, it is contended inter alia that the complainant filed a case bearing no.D.F case no. 246 of 2007 before the District Forum, praying for refund of the consideration price paid to him. The said case was allowed by the District Forum and the District Forum directed the O.P/developer to refund the consideration price and the complainant to hand over the key to the developer. That order of the District Forum was challenged by the O.P before the Hon’ble State Commission in S.C /FA/418/2008 and the Hon’ble State Commission was pleased to set aside the said order and the complaint was also dismissed vide order dated 30.3.2009 of Hon’ble State Commission, West Bengal. Complainants challenged the aforesaid order of the Hon’ble State Commission before the Hon’ble National Commission, having filed Revision case no. 1821 of 2009 and the said revision case was also rejected and the order of the Hon’ble State Commission was confirmed. The complainants have suppressed all these facts in the instant case; they have not come before the Forum with clean hands and, therefore, the case should be dismissed in limini. It is further submitted on behalf of the said O.P that the instant case is barred by resjudicata and, therefore, it is not maintainable in Law. To him, the case should, therefore, be dismissed in limini with cost.
Upon the averments of the parties, the following points are formulated for consideration.
POINTS FOR DETERMINATION
- Is the case not maintainable in law?
- Is the case barred by resjudicata?
- Is there any deficiency in service on the part of the O.Ps as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Evidence on affidavit is filed by the parties. Questionnaires, replies and BNAs filed by the parties are also kept in the record after consideration.
DECISION WITH REASONS
Point no.1 & 2 :
It has been contended on behalf of the O.P developer that the instant case being a second complaint of the complainants is not maintainable in Law. It is further contended by the Ld. Lawyer appearing for the said O.P that the instant case is barred by resjudicata and, therefore, the same is not maintainable in law and should be dismissed.
A second complaint is not maintainable on the selfsame ground. So far as the first complaint of the complainants is concerned, the complainants ‘prayer in that case was to get refund of the money paid to the developer. That prayer of the complainants has been turned down by the State Commission as well as by the Hon’ble National Commission and it has been so turned down by the aforesaid two Commissions for the reason that the complainants were handed over possession of the flat much before the filing of the aforesaid case before the District Forum. Now, the complainants have approached this Forum with the filing of the instant case, wherein it is prayed by them that the deed of conveyance be registered in favour of them in respect of the subject flat. So, it is crystal clear that the grounds of two proceedings are not the same. Relief prayed for in the aforesaid case i.e D.F case no. 246 of 2007 and relief prayed for in the instant case i.e C.C no. 94 of 2011 are quite different and this being so, we cannot say that the instant case is filed on the selfsame ground of the first case. This being the fact, the instant case appears to be amply maintainable in Law.
It has also been argued on behalf of the O.P/developers that the instant case is barred by resjudicata and that is why it is not maintainable in law. We are unable to make ourselves agreed with this contention of Ld. Lawyer ,appearing for the O.P/developer. A case is barred by resjudicata when it is found that the issue which is now sought to be adjudicated has already been heard and finally decided between the same parties, litigating under the same title. In the previous case the issue was; whether the complainants were entitled to refund of the consideration price paid to the developer. No other issue was involved therein. That issue has been heard and finally decided in that case. In the present case, the issue is a) whether the O.P/developer has caused any deficiency in service by not executing and registering the deed of conveyance in favour of the complainants in respect of the subject flat. So, it is found that the issue in the present case has not at all been heard and decided earlier in the previous case and, therefore, the question of the present case being barred by resjudicata does never arise at all. In the facts and circumstances of the case as discussed above, we come to find that there is no merits in the submission as advanced on behalf of the O.P/developer. Hence, these two points are answered in favour of the complainants in the long run.
Point no.1 & 2 :
It is undisputed fact herein that the O.P-1 i.e the developer sold the subject flat to the complainants by virtue of a sale agreement dated 15.4.2002 and that he has also received a sum of Rs.5,50,000/- as consideration price on different dates from the complainants out of a total consideration price of Rs.5,81,000/-. It is also undisputed fact that the complainants are still under liability to pay Rs.31,000/- to the developer as balance consideration money. Non-registration of the flat in favour of the purchaser i.e the complainants by the O.P/developer is a kind of deficiency of service and the said O.P still has to make good for it by executing and registering the sale deed in favour of the complainants. The possession of the flat was delivered to the complainants by the O.P/developer in the year 2006. Legal notice demanding registration of the flat was also served upon the developer in the year 2011 by the complainants. Since then, about 7 years have elapsed and by this time, the cost of stamp duty and registration fee have gone up to a considerable extent. The complainants will have to pay much more money for stamp duty and registration fee while getting registration of the sale deed in favour of them. This loss on the part of the complainants may be attributed solely to the developer ,who will have to pay compensation for this laches.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P nos.1 with a cost of Rs.10,000/- and decreed exparte against O.P nos. 2 and O.P-3 without cost.
The O.Ps are directed to execute and register the sale deed in favour of the complainants with respect to the subject flat and to pay a sum of Rs.50,000/- ( to be paid by the O.P-1 only) to the complainant as compensation within a month of this order, failing which, the compensation amount and the cost amount will bear interest @8% p.a till full realization thereof.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
Dictated and corrected by me
President
