ORDER NO. 1 DT. 12.11.10
HON’BLE JUSTICE MR. P.K.SAMANTA, PRESIDENT
Appellant is present through Mr. U.Jha, Ld. Advocate. Heard him. Order is passed as under :-
This is an application by the Applicant for a leave to prefer an Appeal against the judgement and order dt. 26.6.09 passed by the North 24 Parganas District Consumer Forum at Barasat in the Complaint Case being C.C. Case No. 258(s)/2008. The said complaint case was filed by one Mr. Arabinda Roy against the sole OP namely Mr. Pravash Ghosh. It was alleged in the complaint that the complainant was one of the owners in respect of the property as described in the schedule to the complaint. The said complainant entered into an agreement with the said OP on 03.09.01 for construction of a multi-storied building on the said property on condition that the said OP/Developer will deliver three flats measuring 850 Sq. ft. each to the complainant. The said OP in breach of the aforesaid agreement delivered two incomplete flats in the middle part of 2006 to the complainant and in spite of repeated requests by him the said OP/Developer failed to deliver the other flat to him in terms of the aforesaid agreement. The said complaint case was accordingly filed.
The aforesaid OP/Developer contested the said complaint case by filing written version by denying and disputing all the allegations as made by the complainant. It was the specific case of the OP that another co-owner of the said property has filed a Title Suit being TS No. 62 of 2005 before the 4th Court of Civil Judge, Junior Division, Sealdah against him and has obtained an order of injunction in the form of status quo in respect of the flats constructed by him. Accordingly the OP had not been able to deliver possession of the flat to the complainant. The aforesaid complaint case has accordingly been disposed of by the Forum below with a direction upon the OP/Developer to deliver the possession of one flat measuring 850 Sq. ft. to the complainant with further direction to pay a sum of Rs. 10,000/- by way of compensation and Rs. 2,000/- towards cost to the complainant.
The applicant in the above application upon disclosure of an alleged agreement dt. 29.9.05 entered into by and between the applicant and Mr. Pravash Ghosh, the OP/Developer to the aforesaid complaint case, has contended that he was entitled to a flat measuring 825 Sq. ft. super-built area being Flat No. D-825 on the 5th Floor of the building called Aditya Apartment and, therefore, he should be allowed to prefer an Appeal against the order of disposal of the above complaint case.
Upon reading of the aforesaid petition it is evident that the applicant has no locus standi to file an Appeal against the judgement as aforesaid passed in the aforementioned complaint case because the alleged agreement as entered into by and between the present Applicant and said Mr. Pravash Ghosh was not the subject matter of the above complaint case. If there be any agreement in between the present applicant and said Mr. Pravash Ghosh, as alleged in the instant application, then that will give rise to a separate cause of action for the breach, if any thereof between the parties to the said agreement. In this Appeal the question as raised by the present applicant cannot be decided without a fresh trial of the issues that may be raised in between the applicant and said Mr. Pravash Ghosh, for the alleged breach of the terms of the distinct and separate agreement as above entered into by and between them. The leave to prefer an Appeal against the aforesaid judgement passed in Consumer Complaint No. 258(s)/2008 is, therefore, refused. The Appeal petition is therefore rejected without being admitted.
