West Bengal

Paschim Midnapore

CC/41/2013

Dr. Abhijit Chaudhuri - Complainant(s)

Versus

Sri Samaresh Ganguli - Opp.Party(s)

12 Feb 2014

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

 

 Complaint case No.41/2013                                                         Date of disposal: 12/02/2014                               

 BEFORE : THE HON’BLE PRESIDENT :  Mr.Sujit Kumar Das.

                                                      MEMBER :  Mrs. Debi Sengupta.

                                                      MEMBER :  xxxxxxxxxxxxx

   

    For the Complainant/Petitioner/Plaintiff : Mr. S. Bhattacharya. Advocate.

    For the Defendant/O.P.S.                           : Mr. M. Chowdhury Advocate.

          

1) Dr. Abhijit Chaudhuri, S/o-Timir Baran Chaudhuri, (2) Sm. Irani  Chaudhuri W/o-Dr. Abhijit Chaudhuri  At Flat No.F3, 1^st floor, Mangalam Tower, Raghunathpur, P.O. &  P.S.-Jhargram, Dist-Paschim Medinipur… …………Complainants.

                                                              Vs.

1. Sri Samaresh Ganguli S/o-Late Ajit Kr. Ganguli
2. Sri Soubarna Ganguli S/o- Sri Samaresh Ganguli At 6/1, Ramesh Mitra Road, Kolkata-700025
3. Sri Subhas Ch. Das
4. Sri Sujit Das S/o-late Sasanka Mohan Das At Raghunathpur, P.O. &  P.S.-Jhargram, Dist-Paschim Medinipur………………………….Ops.

                

                      The case of the complainant, Dr. Abhijit Chaudhuri and Smt. Irani Chaudhuri, in short, is that they purchased a flat measuring 890 sq. ft. as mentioned in the schedule of the petition of complaint at a consideration of  Rs.6,65,300/- (Six lakhs sixty five thousand three hundred) only in terms of unregistered agreement dated 28/07/2004 with the Ops.  The delivery of vacant possession of the said flat was handed over to the complainants on 08/10/2006 with an assurance that registration of sale deed will be executed within a very short period.  In spite of making payment of entire consideration money and other dues together with registration cost, the OP refused the registration with threatening to dispossess by using force if further amount of Rs.4,40,000/- (four lakhs forty thousand) only as per their demand is not paid by the complainant. Stating the allegation the complainants moved before this Forum with the prayer for necessary direction upon the Ops to execute a sale deed in their favour in respect of the aforesaid flat and for

Contd……………..P/2

 

                                                                                                        -( 2 )-

payment of compensation of Rs.50,000/- (Fifty thousand) only and litigation cost of  Rs.20,000/- (Twenty thousand) only.

                       In this connection some documents namely unregistered deed of agreement dated 28/07/2004, payment receipt dated 07/02/2013, other documents showing the payments time to time, letter dated 31/12/12 and tax receipt dated 14/05/2009 were submitted by the complainants.  All the documents hereof are in Xerox copies.

                       There is no effective steps challenging or admitting the claim of the complainant is found to have taken from the end of the Op.

                      Considering the case of the complainant, their oral submission and the available information on record, it appears that instant proceedings of this case runs ex parte against OP Nos. 1, 2, & 3 vide previous order No.5 dated 18/06/2013.  Upon prayer of the complainants appropriate steps was to be taken against Op No.4  and accordingly a verified petition under Section 151 CPC has been submitted by the complainants on 08/08/2013 with a prayer for amendment of their petition of complaint as per schedule mentioned therein exposing that the Op. No.4 is lead. But it is surprising to us that as to why no appropriate steps have been taken from the end of the complainants in terms of the provisions under Order (XXII) Rules 2 & 4 of the Code of Civil Procedure in such case of death of Op enabling us to cause entry to that effect to be made on record and the case shall proceed at the instance of surviving Op.  In absence of surviving Ops, if any against the alleged deceased Op-No.4 the enforcement of the order if passed in favour of the complaints would stand infructuous.  In this context, there is no whisper made by the complainants within statuary period. Under the fact and circumstances it is not permissible for us to proceed against a deceased Op. 

                         Admittedly the property is owned by Op Nos.3 & deceased Op 4 and order for execution of deed of conveyance in favour of the complainants if passed, would be infructuous and unexecutable.  Thus, we do not find any valid ground to grant even an order of ex parte against the Op Nos.1, 2 & 3 excluding legal representative of the deceased Op No.4.

                            Hence

                                      It is ordered

                                                           that the case be and the same is dismissed with liberty to the complainants for filing fresh petition of complaint in proper manner.

Dic. & Corrected by me

              

         President                                             Member                                                President

                                                                                                                              District Forum

                                                                                                                         Paschim Medinipur.