In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/64/2016.
Date of filing: 12/05/2016. Date of Final Order: 27/09/2024.
Smt. Debarati Chakrabarty,
wife of Ram Sankar Chakraborty,
previously used to reside at B-23/24,
Flat No. 204, Second Floor, Biswakarma Colony,
Pahaladpur, M.B. Road, New Delhi-110044,.
Permanent address and wherein presently residing at
Hatpukur College More, Memari,
Post Office & Police Station- Memari, District- Burdwan,
PIN Code No. 713146. ……… Complainant
-Versus-
- Smt. Malati Maity,
Wife of Sri Biswabrata Maity,
residing at Arunabha Sarani, North Ghoshpara,
Post Office- Ghosh Para, Police Station- Baly,
District- Howrah, Pin Code No. 711227.
- Sri Biswabrata Maity,
residing at Arunabha Sarani,
North Ghosh Para, Post Office- Ghoshpara,
Police Station Howrah, Pin Code No. 711227.......... Opposite Parties.
Before: President, Shri Debasish Bandyopadhyay.
Member, Debasis Bhattacharya.
FINAL ORDER/JUDGEMENT
Presented by:-
Shri Debasish Bandyopadhyay, President.
Brief fact of this case:- This case has been filed U/s. 12(1) of the Consumer Protection Act, 1986 by the complainant stating that the opposite party No. 1 purchased 1 Katha 8 Chhatak and 35 Square feet land from the lawful owners situated in the District Hooghly, Police Station- Serampore, J.L. No. 7, within the Konnagar Municipality, present Ward No. 1, previous Ward No. 4, holding No. N-7/B, S.C. Mukherjee Bye Lane North on 19.06.2013 by a registered deed. The said deed was registered in the office of Additional Registrar of Assurance-III at Kolkata and entered in book No. I, C.D. Volume No. 5, pages 7423 to 7435 being Deed No. 2631 of 2013. The said land is recorded in R.S. Settlement in R.S. Khatian No. 2281, R.S. Plot No. 5186 and 5187, L.R. Plot No. 9785 and 9777 of Mouza-Konnagar.
That on the same date the opposite party No. 1 purchased another block of the said land from the lawful owner of the same plot and mouza measuring about 1 Katha 8 Square feet on 19.06.2013 by executing and registering a Deed of Sale on her favour which was registered in the office of the Additional Registrar of Assurance-III at Kolkata and entered in book No. 1, C.D. Volume No. 5, pages from 7410 to 7422, being deed No. 2630 of 2013.
That after said purchase those lands as purchased by the opposite party No. 1 were mutated in her, name separately in two holding numbers being holding No. N-7/B, S.C. Mukherjee Bye Lane North and N-7/C, S.C. Mukherjee Bye Lane (North).
That thereafter the Opposite Party No. 1 applied before the Konnagar Municipal Authority for amalgamation of those two holdings and her said prayer was allowed and a single holding number was allotted for the same being N-7/B, S. C. Mukherjee Bye Lane (North).
That by this way the opposite party No became owner of the land situated in the District Hooghly, Police Station Serampore, Mouza Konnagar, Additional Sub- Registrar Office- Serampore, within Konnagar Municipality, Ward No. 1 (Old Ward No. 4), Holding No. N-7/B, S. C. Mukherjee Bye Lane (North), Pargana- Bor, J.L. No. 7, Revenue Circle No. 1759, Mouza Konnagar, R.S. Khatian No. 2281, Touzi No. 3989, R.S. Dag No. 5186 and R.S. Dag No. 5187, corresponding to L.R. Dag No. 9785 and L.R. Dag No. 9777, class of land vita, total area 2 Katha 8 Chhatak and 43 square feet.
That the opposite party after obtaining permission from the Konnagar Municipal Authority and in due observation of rules and regulations constructed a G+4 building on the said land containing several flats.
That the complainant was in search of a flat in the area for dwelling purpose and on being known about the said construction of the opposite party No. 1 contacted with her and stated her willingness to purchase a two roomed flat in the said building, the opposite party No. 1 became agreed to the willingness of the complainant and asked her to purchase the flat No. 5 situated in the second floor of the building measuring about 625 square feet and also decided the price of the flat Rs. 13,77,200/- (Rupees Thirteen Lakh Seventy Seven thousand and Two hundred) only, the complainant became agreed to purchase the said flat No. 5 in the second floor with the said price and requested the opposite party No. 1 to prepare necessary sale deed and for registration of the same.
That thereafter the said flat No. 5 in the second floor constructed on the said land was sold to the complainant on taking a consideration money of 13,77,200/- (Rupees Thirteen Lakh Seventy Seven thousand and Two hundred) by the opposite party No. 1 and a deed of sale was executed and registered by her on 11.05.2015 and the said registration was done in the Office of Additional Registrar of Assurance III, Kolkata and the registration was entered in book No. 1, C.D. Volume No. 5, page from 49 to 72, being No. 01341 for the year 2015.
That apart from the said consideration money the complainant paid in cash to the opposite party No. 1 a sum of Rs.1,22,897/- towards cost of registration of the flat as per demand of the opposite party No. 1.
That after registration of the flat No. 5 in the second floor as per direction of the opposite party No. 1, the complainant delivered a blank form for electrical connection of the flat, but opposite party No. 1 with an ulterior motive misused the said form and used the same for the purpose of electrical connection in flat No. 3 in the first floor which is nothing but a manufactured document and purposive one.
That at the time of registration the flooring, plastering and fixation of doors and windows of the flat were not completed, the opposite party No. 1 that time assured the complainant to complete the said work and to deliver the possession of the same within the month of December, 2015. Subsequently in the first part of December, 2015 when the complainant met with the opposite party No. 1 she requested the complainant to wait for sometime and without any fail the flat to be completed and also the possession to be delivered within the middle of April in favour of the complainant.
That in the last week of March, 2016 the complainant came to know from reliable source that the said flat No. 5 in the second floor of the said building and which was also sold to the complainant earlier as stated above has been sold to one Biswadip Bhattacharya by executing and registering a sale deed on 17.11.2015 in the office of the Additional Registrar of Assurance- III, Kolkata and the said registration is entered in Book No. 1, Volume No. 1903-2015, pages from 43457 to 43491, being No. 190302835 for the year 2015.
That thereafter the complainant consulted the matter with her learned advocate and as per advice served a notice upon the opposite parties above named on 06.04.2016 with a request to redress the grievances of the complainant and to negotiate the dispute, on receipt of the said notice the opposite parties sent reply of the same through their advocate denying the material fact which are not at all tenable in the eye of law and forced to execute a deed of rectification to the effect that the complainant had purchased the flat No. 3 in the first floor of the building but not the flat No. 5 in the second floor and from the said reply of the opposite parties it is clear that they are not at all agreeable to negotiate the matter and/or to redress the grievances of the complainant.
Complainant filed the complaint petition praying direction upon the opposite parties to pay the price of the flat including the cost of registration amounting to Rs. 15,00,097/- banking interest on the said amount of one year @ 12% per annum amounting to Rs. 1,80,001.64/- and to pay a sum of Rs. 1,50,000/- for agony and to pay a sum of Rs. 75,000/- as litigation cost or to give possession over of the said flat in question.
Defense Case:- The opposite parties contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that That in the project of the Opposite party no.1 at N-7/B, S.C. Mukherjee Bye Lane (North), Post Office-Konnagar, Police Station Uttarpara, under Konnagar Municipality, District- Hooghly, the Complainant was the first person to obtain possession of the Flat No.3 in the 1st Floor. Being the first purchaser the complainant had the option to buy flat of her choice and chose the said Flat No.3 in the 1st floor for the reason as disclosed to the opposite parties that she was purchasing the same for her parents who are elderly and a flat in the 1st floor would be perfect for them.
Since that was the first deed of conveyance and the deed was in Bengali, by inadvertent mistake, in the Deed of Conveyance the property/ flat was wrongly mentioned as Flat No.5 on the 2nd Floor instead of the Flat No.3 on the 1st Floor. However, the complainant took possession of the Flat No.3 on the 1st Floor, which was agreed to be sold by the opposite party no.1 to the complainant.
Neither the Complainant nor the Opposite parties detected such mistake at the time of registration of the deed of conveyance, but since the contract was for selling of the Flat No.3 on the 1 Floor, the Complainant took possession of the same on the date of registration i.e. on May 11, 2015 and put her padlock therein.
That during end of November, 2015 such mistake was first detected by the Opposite parties. A detailed negotiation took place between the Claimant and Opposite party no.1 and ultimately, the Claimant specifically assured the opposite party no.1 that since the mistake was unintentional, she will execute a deed of rectification/ deed of declaration clarifying that she purchased the Flat No.3 on the 1st Floor and not the Flat No.5 on the 2nd Floor. However, it was specifically agreed between them that since complaint was not at fault for such mistake, all necessary expenses shall be borne by the Opposite party no. 1.
That subsequently, the Complainant obtained separate electric connection in the said the Flat No.3 on the 1st Floor in her name and she paid the necessary expenses for the same.
That since more than 3 months passed on such negotiation and Bengali month of Chaitra came in the meantime and at the end of such negotiation it was agreed between the parties that a Deed of Rectification/ Deed of Declaration would be executed by the parties n the Bengali month of Baishakh (starting from April 14, 2016).
In the aforesaid background, the opposite parties were surprised to receive a letter dated April 04, 2016 from the learned advocate of the Complainant asking for negotiation in the matter. The Opposite parties by their common learned advocate's letter dated 18.04.2016 replied the same. The answering Opposite parties crave reference to the same to ascertain its true meaning and effect.
In this context it is very much necessary to state here that until the aforesaid letter the complainant never wrote any letter to the opposite parties regarding her claim and was always agreeable to execute the deed of rectification to rectify the said defects. Not only that the Flat No.5 in the Second floor was sold to the third party 17, 2015 and he is possession thereof. So, the case is liable to be dismissed.
Issues/points for consideration
On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?
Evidence on record
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.
The answering opposite parties filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.
Argument highlighted by the ld. Lawyers of the parties
Complainant and opposite parties filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.
Argument as advanced by the ld. Advocates of the complainant and the opposite parties heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.
DECISIONS WITH REASONS
The first three points of considerations which have been framed on the ground of maintainability, jurisdiction issue and cause of action issue and whether the complainant is a consumer in the eye of law are very vital points of considerations and so these three points of considerations are clubbed together and taken up for discussion jointly at first.
For the purpose of arriving at just and proper decision in respect of the above noted three points of considerations and to determine the fate of this complaint case, there is urgent necessity of making scrutiny of the materials of this case record and there is also urgency for scanning the evidence of record.
In this regard this District Commission after going through the material of this case record and cause title of the complaint petition finds that the complainant is a resident of flat no.204 of Biswakarma Colony, Pahaladpur, M.B.Road New Delhi-110044 and she is a permanent resident of Hatpukur College More, Memari, P.O. & P.S. – Memari Dist-Burdwan PIN-713146. This matter is clearly reflecting that the complainant is not a resident under the District of Hooghly. In this connection this District Commission after going through the material of this case record finds that OP-1 Smt. Malati Maity w/o Biswabrata Maity residing at Arunabha Sarani North Ghosh Para P.O-Ghoshpara P.S-Bally Dist-Howrah PIN-711227 and OP-2 Biswabrata Maity is also residing at the above noted address under the District of Howrah. Thus it is crystal clear that both the complainant and Ops are not the residents of the District of Hooghly. In view of such position, this District Commission has no jurisdiction to try this case. According to section 11 of the Consumer Protection Act 1986 this District Commission has no jurisdiction to try this case. In this regard this is important to note that at the time of filing of this case or at the time of admission hearing the complainant side had not obtained any permission from this District Commission in the matter of filing this case in this District Forum/Commission by assigning any special reason.
So it is crystal clear that this District Commission has no territorial jurisdiction to try this case. As a result of which this case is not maintainable in the eye of law.
As the case is not maintainable and as this District Commission has no jurisdiction to try this case, this District Forum/Commission is of the view that there is no further necessity of making discussion of remaining points of considerations.
In the result it is accordingly
ordered
that the complaint case being no. 64 of 2016 be and the same is dismissed on contest as this District Commission has no jurisdiction to try this case.
Let the complaint petition be returned to the complainant for presenting the same before the appropriate Forum.
No order is passed as to cost.
Parties are entitled to get three copies of this judgment as early as possible.
Let this judgment be uploaded in the official Website of this District Commission immediately.
