Order No. -21 Dt. 05/08/2014
Today is fixed for final order of this case.
Complainant’s case in a nut-shell is that the O.P. and her husband took Rs.60,000/- from the complainant on 15/09/11 towards advance for sale of their flat on condition that the complainant shall reside in that flat as his tenant at a monthly rental of Rs.500/- which will be adjusted with the principal amount of the flat at the time of registration of that flat.On 02/11/11 the O.P. Handed over the possession of the flat to the complainant. Since then the complainant has been residing in the said flat taking electric connection. On 28/12/11 the husband of the O.P. Died. The complainant requested the O.P. Several times to register the flat in his name but the O.P. refused. Hence this case.
The O.P. Has contested this case by filing Written Version denying and disputing the allegations levelled against her and her husband with prayer for dismissal of the case with cost. The specific stand of the O.P. Is that the complainant is not a consumer within the meaning and ambit of C.P.Act and has no locus standi to file this case and that in the year 2004 the O.P. and her husband wanted to purchase a flat for residential purpose. They approached deep construction, who are the promoters of the locality, for the flat.The promoters agreed to sell a flat of the building styled as “Bashundhara Apartment “to the O.P. and her husband measuring 790 sq.ft.for valuable consideration and a written agreement was executed between the said parties on 12/09/14 but the promoters after receiving full payment of the consideration money of the flat from the O.P. Willfully neglected the terms of the agreement by participating Unfair Trade Practice and they have not yet executed proper “Sale Deed” in favour of the O.Ps. till date. The O.P. and her husband during his life time never executed any document in favour of the complainant for transfer of the flat in question. As the O.P. Is not the owner of the flat in question, so she cannot provide any service to the complainant as claimed.
POINTS FOR CONSIDERATION
- Is the case maintainable?
- Is the complainant a consumer as per provision of Consumer Protection Act.1986?
- Is O.P. guilty for deficiency in service as alleged?
- Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
All four points are taken up together for consideration and decision. Seen and perused the pleadings of the parties, documents filed by the parties and the written argument filed by the complainant.
Now after due consideration of arguments of Ld.Lawyers of both sides and the materials on record we find that admittedly admittedly, the O.P.filed consumer Case no.-45/12 against the promoters wherein she has obtained an award against the O.Ps. 4 to 7 of that Consumer Case and that direction was given to those O.Ps. To execute and register “Sale Deed” in favour of the complainant(O.P.) of this case within one month failing which liberty was given to execute the order by a separate proceeding against O.Ps. 4 to 7 of that Consumer Case as per provision of law.
Admittedly those O.Ps. 4 to 7 didn’t register and execute “Sale Deed”in relation to the flat in question in favour of the O.p.(complainant of CC 45/12) till date. So it is clear that the O.P.has not yet become the owner of the flat in question.
Admittedly the present complainant has instituted title suit no. 139/13 against the O.P. Smt. Sunita Sonar for declaration, confirmation of possession and for injunction in the court of Ld.Civil Judge, Senior Division at Jalpaiguri and that suit is still pending. Furthermore from the copy of the alleged agreement filed by the complainant we find that this was executed by Sri. Shyam Sonar , husband of the O.P. As per this document the status of the complainant is nothing but a monthly tenant. It was argued by the side of the O.P. that Shyam Sonar didn’t execute this agreement voluntarily as he was then suffering from liver cancer and died on 28/12/11 leaving behind his widow(the O.P.) and their two minor sons. So whether the O.P. Alone has acquired exclusive right to transfer the flat in question to the complainant is the most vital point and that matter can only be solved by a competent Civil Court of Law. We are fully in agreement with the above submission of the Ld.Lawyer for the O.P. It was argued by the Ld.Lawyer for the complainant that the complainant has disposed in CC 45/12. If that be so, then what prevented the complainant to apply before the Forum for making him as a party in CC 45/12 to ventilate his grievance if at all he had any interest in the flat in question.
Aforesaid discussions led us to hold that the complainant cannot be treated to be a consumer as per terms of provisions of the C.P.Act 1986 even on a stretch of imagination as the O>P. Has not yet become owner of the flat in question.Furthermore all points involved in this case can only be determined/ solved by a competent Civil Court of Law in regular trial. Therefore question of deficiency in service on the part of the O.P. as alleged by the complainant doesn’t and cannot arise at all. In this view of the matter we find and hold that the complainant is not entitled to get any relief and although all these are well known to the complainant yet he has filed the instant case to harass the O.P and to create pressure on her. Thus we have reason to believe that the petition of complaint filed by the complainant is found to be frivolous and/or vexatious.
In the result the case/application fails.
Hence, it is
O R D E R E D
that the case stands dismissed on contest with cost of Rs.5000/-. The complainant is hereby directed to pay said cost of Rs.5000/- to the O.P. within one month from this day failing which the O.P. shall be at liberty to realize the same by putting this order into execution in accordance with law.
Let copy of this final order be supplied to the parties free of cost forthwith in terms of Sec.5(10) of West Bengal Consumer Protection Rules 1987.