This petition of complaint is filed u/s 12 of the C. P. Act, 1986, by Amitava Sen and his niece, Smt. Angira Sen, alleging deficiency in service in relation to housing construction on the part of Samrat Chakraborty, the OP No. 1, Developer as well as the OP Nos. 2 to 6 – Landowners.

The crux of the case is that the Complainants, being attracted to an advertisement published in a newspaper which was as “670 sq. ft. marble finished flat is available with A.C., Kitchen chimney, inverter and video door phone at Kolkata, Bidhanpally, 5 to 7 minutes from Gitanjali Metro @ Rs. 2,200/- per sq. ft.”, they entered into an Agreement for Sale on 31-12-2010 with the OP no. 1 developer, who was empowered for the same by virtue of a Development Agreement dated 10-07-2007 and a power of attorney registered on 01-07-2008 executed by the Landowner in favour of the OP developer for construction of a multistoried building within the premises measuring about 3 Cottahs 14 Chittaks 13 sq. ft., lying and situated in Plot No. 204 (S.P. No. 278), 204A (S.P. No. 278/2) and 204B (S.P. No. 278) in C.S. Dag No. 127 (P) in Mouza Kamdahari, J.L. No. 49, P.S. Regent Park, within the limits of the Kolkata Municipal Corporation, Borough No. XI, Ward No. 112, Premises No. 551, 270 & 554, Bidhan Pally, respectively, Garia, Kolkata 700 084, District South 24 Parganas, and to enter into the Agreement for Sale with the intending purchaser in respect of Developer’s allocation.  The agreed consideration amount of the flat was Rs. 14,74,000/-, out of which the Complainant had paid Rs. 12,65,263/- by six cheques out of which, first five cheques issued between 23-09-2010 to 31-01-2011 and for the last, i.e., the sixth issued cheque, Complainant did not mention the date of the same.  The Complainants have further stated though they performed all obligations on their part as intending purchasers of the said flat, the developer had shown utter reluctance to deliver the possession of the said flat as well as execution and registration of the Deed of Conveyance in favour of them.  The Complainants have further stated that in spite of verbal as well as written requests made from the end of the Complainants to the OP developer to deliver possession and to register the Deed of Conveyance in favour of the Complainants, the OP Developer paid no heed at all.  Subsequently, the OP No. 1 issued three cheques for a total sum of Rs. 14,00,000/- in favour of the Complainants towards refund of the deposited amount, but two of the said cheques were dishonoured by the bank due to “insufficient fund” for which the Complainants filed a case u/s 138 of the N.I. Act which was registered as Case No. 2866/2013 before the Ld. Chief Judicial Magistrate, Alipore, which is still pending.  Having no other alternative, the Complainants have filed this petition of complaint praying for direction upon them to execute and register the Deed of Conveyance in favour of the Complainants in respect of the flat in question, to pay a sum of Rs. 2,50,000/- as compensation for the harassment and mental agony and Rs. 50,000/- as litigation cost.

The OPs did not turn up although notices have been duly served upon them.  Hence, the complaint case is proceeded against them ex parte.

In support of the contention of petition of complaint, the Complainants have adduced evidence on affidavit annexing copies of letter dated 04-02-2016 from the Complainant No. 1 to the Developer, Agreement for Sale dated 31-12-2010, money receipts issued by the OP No. 1, copy of Case No. 2866/2013, filed before the Court of the Ld. Chief Judicial Magistrate, Alipore, photocopies of two cheques bearing nos. 624576 and 624575 dated 20-01-2013 and 20-12-2012, respectively.

On oral submission, authorized representative of the Complainants have submitted that the Complainants had paid consideration amount to the OP developer for availing housing construction service and thus, became consumer under him and since the OP developer, in spite of receiving consideration amount, did not execute and register the Deed of Conveyance, the cause of action is continuing.  In support of her contention, the authorized representative for the Complainants have relied upon the decision of the Hon’ble National Commission reported in 2016 (1) CPR 136, wherein the Hon’ble Commission held that the cause of action is continuous where Complainant has paid required amount.

Decision with reasons

Evidently the Complainants entered into an agreement for sale with the OP developer on 31-12-2010 in respect of a flat for a consideration of Rs. 14,74,000/-.  The Complainants claimed to have paid Rs. 12,65.263/- to the OP developer.  The Complainants claimed to have been denied delivery of possession as well as getting the flat registered in favour of them.

However, it is noteworthy that Complainant has initiated a case before the Court of the Ld. Chief Judicial Magistrate,  Alipore u/s 138 of the N. I. Act (Case No. 2866/2013) prior to initiation of the present complaint case and the matter is still pending. Insofar as the primary relief sought for by the Complainants is to get refund of the amount deposited with the OP in lieu of execution and registration of the schedule flat, it appears, both the cases are running on self same cause of action which is not viable under the law, lest the same may result in passing conflicting orders and/or make an adverse impact on the other proceedings initiated before commencement of the present case. 

Against such facts and circumstances, it would not be prudent on our part to pass any order at this stage.

Hence,

O R D E R E D

that CC/227/2016 is dismissed without cost.