Order No.11

            Today is fixed for hearing of the MA 54/2020 and 55/2020. MA 54 has been filed by Opposite Party No. 1-4 for addition of Rathindra Nath Choudhury as a party  and M.A. No 55 has been filed by Rathindra for being a party. Both the applications bear reference to  a registered sale deed dated 21.10.2009 purporting to be executed by all the Opposite parties in favour of Rathindra in respect to a flat measuring  382 Sq.Ft. in the ground floor of premises No. 45/1 Pran Krisna Saha Lane , Braanagar, Kolkata 36 (which  will hereinafter be called as the 'said flat'). As per development agreement of 2016 the said flat was a part of developers allocation.  Opposite Party No. 5 & 6 are the developers and OP 1 to 4 are the land owners.

            The Ld. Advocates on both sides are heard at length for and against the MA 54/2020 and 55/2020. We have also perused those applications, written objections and other material on record.

            The the applicants of both the Miscellaneous Applications have claimed that  Rathindranath Chowdhury who has purchased the said flat dt. 21.10.2019 should be added as a party to this case. The Ld Advocate appearing for land owners (O.P. No. 1 - 4)  and also for Rathindra Choudhury has contended that the presence of Rathindra is essentially required for effective adjudication of this Case. The move is opposed by the Ld. Advocate of the complainant who submits that the present case is based upon the Agreements dated  07/07/2017 & 19/07/2017 which came into being in between Op 5 and 6 on one hand and the complainant on the other.

            Needless to say that the agreements dated 07/07/2017 & 19/07/2017 are blessed with the signature of the complainant, Op 5 and OP-6. The said Ops agreed to sell the flat to the complainant at Rs. 7,64000/- and complainant has paid Rs. 5,50,000/- out of the same.

            It is submitted by the Ld. Advocate of the Complainant that his client got the possession during pendency of the case. Para 15 of the written version filed by the Op appear to be consistent with such contention.  It is clearly stated in para 15 that the complainant entered into the flat  forcibly.

            Here in this case we are to decide whether Op 5 and 6 - who accepted part of the consideration money from the complainant and parted with possession - have indulged in unlawful trade practice or are guilty of deficiency in service or not.

            It is quite clear that the developers (i.e. Opposite party No. 5 & 6)  have received money twice for the same flat. They did not have the right to deal with the flat in any manner as on 21.10.2019. The flat was also not then free from any encumbrances. The sale dated 21.10.2019 was not accompanied by delivery of possession.

            In view of Order 1 Rule 10(2) of Civil Procedure Code it is obligatory for us to see whether the presence of Rathindranath Chowdhury is necessary for effective and complete  adjudication of the question involved in this case. The case is chiefly based upon the agreements as stated above. The complainant has sough for direction to the Ops for execution and registration of the Sale Deed upon accepting the balance amount and also for other reliefs. In the absence of Rathindranath Chowdhury, in our view, all the questions arising out of the aforesaid agreements can be decided effectively and completely. In such a situation we don’t think that for proper adjudication of this case the presence of Rathindranath Chowdhury is necessary. So, both the MA 54/2020 and MA 55/2020 calls for no action. Therefore, the MA 54/2020 and MA 55/2020 stands rejected.