Minakshi Chakraborty,  Presiding Member.

Brief facts of the case:   This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainant that the opposite party no. 1 made an agreement for sale with the complainant on 25^th October, 2009 and he duly signed therein by the dint of a general power of attorney, executed in favour of opposite party no. 1 by landowners wherein said “indrapuri apartment” is situated and also by an agreement with them and opposite party no. 1 agreed to give possession to the complainant  in a shop room of said  “indrapuri apartment” by executing a registered sale deed in favour of the complainant with  a consideration of Rs. 50,000/- in which opposite party no. 1 duly received Rs. 25,000/- in two equal parts, first on 19.10.2009 vide receipt no. 041 and lastly on 27.1.2011 vide receipt no. 367 in the letterhead of “Ganesh Enclave” which is just beside the “indrapuri apartment” and after receiving the part amount of the consideration money 2^nd time the opposite party no. 1 gave possession to the complainant in the shop room  and on and from 27.1.2011 the complainant enjoying his possession thereat and running his business of shoe shop under the name and style of “Laltu Shoe Centre” therein and after paying the second part of consideration money the complainant requested the opposite party no. 1 to receive the rest amount and to execute the sale deed in favour of him by way of registration but the opposite party no. 1 did not pay any heed to the request of the complainant and after receiving a legal notice dt. 19.6.2018 it has cleared to the complainant on 20.8.2018 that in connivance with the opposite party no. 1, the opposite party no. 2 claimed him as the owner of the alleged shop room and then naturally the complainant send the rejoinder against his claim on 27.8.2018 but the opposite parties refused to accept the same and thereafter the opposite party no. 2 told the complainant to vacate the alleged shop room.

            Complainant filed the complaint petition praying direction upon the opposite parties for adjudication of malpractice of the opposite parties after receiving part of the consideration money and giving possession thereat and to execute the registered deed of the said property in favour of the complainant and to leave the illegal claim of the opposite party no. 2 to run his business thereat and to pay sum of Rs. 7,00,000/- along with accrued interest for value of the services and to pay sum of Rs. 3,00,000/- as compensation and to pay the cost of the case and to give any other relief/ reliefs as deed fit and proper.

Defense Case:     In a nutshell the opposite party No. 1 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and submits that in front of the entire property (i.e. on the foot frank of the road side) there was many unauthorized “gumti” and the complainant was one of the occupier of one unauthorized “gumti” and to smooth going of constructional work and the opposite party no. 1 decided to rehabilitate to every “gumti” owner in his newly constructed building “indrapuri apartment” and also agreed to take Rs. 50,000/- from every “gumti” owner as the constructional cost and by this was the opposite party no. 1 handed over every “gumti” owner to his newly shopping complex in the “indrapuri apartment” and the opposite party no. 1 allotted the complainant shop room measuring about 60sq.ft covered are more or less and all the shop rooms were allotted to the “gumti” owner by lottery and opposite party no. 1 handed over every “gumti” owner along with the complainant but the complainant suddenly forcibly entered into the schedule shop room but the opposite party no. 1 along with other owners sold the said shop room to the opposite party no. 2. The shop room in question mentioned in the schedule hereunder is different shop room and it’s measurement is different and the shop room which is written in the sale agreement is still in vacant condition and is lying in the shopping complex of “indrapuri apartment” and the complainant forcibly occupying the shop room of the opposite party no. 2. So, the instant case is liable to be dismissed.

            In a nutshell the opposite party No. 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and submits that the landowners and the opposite party no. 1 executed a deed of sale on 26.4.2017 in which the opposite party no. 2 was the purchaser and thereby made sale of the property being the shop room and the opposite party no. 2 during the time of purchase and before execution of the above mentioned deed of sale being no. 1100 of 2017 of A.D.S.R. Uttarpara, Hooghly have handed over the total consideration amount of Rs. 4,00,000/- for purchasing the property and the land owners and the opposite party no. 1 acknowledged receipt of the same and the opposite party no. 1 also did not provide the electric connection as promised by the opposite party no. 1 and though the deed of sale for the shop room was executed and registered the sale in totality was not completed and possession of the shop room was never handed over to the opposite party no. 2 simultaneously with the execution of the above mentioned deed of sale nr later and letter of possession and a copy of the completion certificate with respect to the property were never handed over to the opposite party no. 2 by the opposite party no. 1. On the other hand possession of the shop room was handed over by the opposite party no. 1 and the landowners to complainant after about a week from the date of registration of the above mentioned deed of sale and the complainant presently carry on a business from the shop room and so, the complainant is a rank trespasser in relation to the opposite party no. 2. So, the opposite party no. 1, the land owners and the complainant are liable to handover free and vacant possession to the opposite party no. 2. On 3.11.2018 the opposite party no. 2 had send a demand notice to the opposite party no. 1, the landowners and the complainant through his ld. Advocate asking the opposite party no. 1, the land owners and the complainant to hand over free and vacant possession of the property and on 12.11.2018 the complainant replied though his ld. Advocate. So, the instant case is liable to be dismissed.

            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 so it is needless to discuss.

            Complainant and opposite parties filed written notes of argument. The evidence on affidavit and written notes of argument of both sides are taken into consideration for passing final order.

            Argument advanced by the advocates of both h sides heard at length.

            From the discussion hereinabove, we find the following issues/points for consideration.

Issues/points for consideration

1. Whether the complainant is the consumer?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain the instant case?
3. Whether there is any deficiency of service on the part of the opposite parties?
4. Whether the complainant is entitled to get any relief?

DECISIONS WITH REASONS

Issue No: 1

In the light of the discussion hereinabove and from the materials on record it transpires that the complainant is a Consumer as provided in Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986.

Issue No: 2

Both the complainant and the opposite party are residents and having the office of the O.P within the district of Hooghly. Considering the claim amount of complainant as per prayer of the petition of complainant it appears that the same does not exceed Rs.20,00,000/-. In view of above this Forum has territorial and pecuniary jurisdiction to entertain the instant proceeding.

Issue Nos: 3 & 4

Both these issues are taken up together for the sake of convenience.

Admittedly the petitioner entered into an agreement dated 25.10.2009 with OP-1 Nilotpal Ghosh where from it appears that part payment of the consideration money through two receipts dated 19.10. 2009 and 27.01.2011 has been made in favour of the OP-1 by the petitioner/complainant.

It is also an admitted fact that with payment of the rest of the consideration money being Rs. 25,000/- to the OP-1, OP-1 shall transfer and/or arrange for sale by a registered deed the 2^nd schedule property as per the agreement in force and/or entered into the parties now in question in favour of the petitioner.

After minutely scanning and scrutinizing the evidence on record and comparing the same with the documents found in the record including the certificate being KM/472 dated 06.09.2018 of the Municipal Commissioner it appears that the present petitioner/complainant has been running his business named and style under ‘Laltu Shoe Centre’ at 82 S.C. Chatterjee Street ‘Indrapuri Apartment’ from the year 2011 while in the light of evidence from the sale deed dated 26.11.2017 it is found that by way of one registered sale deed one shop room of 100 Sq. ft. superbuilt up area with covered area of 83 Sq. ft.has been purchased by OP-2 from the OP1. Thus it cannot be denied that before and after such sale of the said shop room and even during registration of the said sale deed regarding said shop room, the complainant was in possession of the said shop room which is supposed to be purchased by him in force of the agreement made between the OP1 and the petitioner himself and the said agreement is still in force.

In view of the discussion hereinabove considering all the aspects as come out in the instant case, the commissioner’s certificate being KM/472 dated 06.09.2018 regarding possession in continuation of the shop room under the name and style ‘Laltu Shoe Centre’ uninterruptedly till date at 82 S.C. Chatterjee Street ‘Indrapuri Apartment’ from the year 2011 is a document proved irresistible.

Both the issues are thus disposed of.

Hence,

Ordered

That the complaint case no. 157/2018 be and the same is allowed on contest with cost.

The OP-1 do execute a registered sale deed of the said shop room on receipt of the rest of the consideration money by the complainant within 45 days from the date of receipt of rest of the consideration money, in default, complainant is given liberty to take recourse to law.

The OP-1 also do pay Rs. 30,000/- as cost and compensation towards the mental agony and harassment within 45 days from this day.

The OP no. 1 is further directed to pay Rs. 6000/- in the Consumer Legal Aid Account for the aid of poor litigant.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

The Final Order will be available in the following website www.confonet.nic.in.

Dictated and corrected by me.