Date of filing : 11.11.2016
Judgment : Dt.17.12.2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of the C.P.Act, 1986 by Goutam Shee alleging deficiency in service on the part of the opposite parties namely (1) Shyamal Chakraborty, (2) Gita Chakraborty and (3) Basudev Halder.
Case of the Complainant, in brief, is that the Complainant entered into an Agreement on 18.12.2003 with the opposite parties (referred as OP hereinafter) in respect of a flat being No.S-1 measuring about 760 sq.ft. on the second floor East-West-South side along with a garage to be constructed at premises No.241A, Diamond Harbour Road at a consideration of Rs.8,25,000/- and paid Rs.1,00,000/- on 18.12.2003 to which one Ranjit Majumder (one of the developers since deceased) issued money receipt
The Complainant has stated that the said Ranjit Majumder being constituted Attorney of OP No.1 & 2 as well as one of the Developers entered into the Agreement with the Complainant.
It is further stated by the Complainant that he applied for House Loan to the ICICI Bank and the said Bank being satisfied with the declaration of the Developers sanctioned home loan in favour of the Complainant and issued an A/C Payee Cheque dt.3.1.2004 amounting Rs.5,76,000/- in favour of the Majumder Traders and, thereafter, the Complainant further paid Rs.25,000/- by cash to the Developers against which money receipt was issued by the Developers but they did not execute and register the Deed of Conveyance in respect of the flat in question in favour of the Complainant. Finding no other alternative the Complainant by filing the instant Consumer Complaint prayed for direction upon the OP to register the Deed of Conveyance in favour of the Complainant and handover possession to the Complainant, to pay Rs.1,00,000/- towards mental agony and Rs.50,000/- for cost of litigation.
The Complainant annexed copy of Agreement dt.18.12.2003, money receipt dt.18.12.2003, 3.1.2004, letter dt.9.1.2007 issued by Ranjit Majumder to the Manager ICICI Home Finance Company Ltd.
The OP Nos.1 & 2 entered appearance but did not file written version so the case was fixed for ex-parte hearing vide order No.24 dt.31.1.2018.
The Complainant adduced evidence by filing affidavit-in-chief.
Decision with reasons
The Complainant claimed to have entered into an Agreement in respect of a flat measuring about 760 sq.ft. on the 2nd floor East-West-South side of a building to be constructed at premises No.241A Diamond Harbour Road and paid Rs.1,00,000/- by cash on the date of execution of the Agreement i.e. on 18.12.2003 and Rs.25,000/- by cash on 3.1.2004 and an amount of Rs.5,76,000/- was sanctioned and deposited by ICICI Bank towards the consideration amount to the Developers account by A/C Payee Cheque.
On perusal of copy of Agreement dt.18.12.2003 it appears that the said Agreement was executed between the Complainant and Shyamal Chakraborty (OP No.1 herein), Gita Chakraborty (OP No.2 herein), one Ranjit Majumder (since deceased) and Basudev Halder. It further appears from the said Agreement for sale that one Ranjit Majumder (since deceased) being the constituted Attorney of the OP Nos.1 & 2 entered into the Agreement. However, no copy of Development Agreement or Power of Attorney, executed in favour of said Ranjit Majumder has been brought before this Forum.
It appears from money receipts dt.18.12.2003, 3.1.2004 that the Complainant paid Rs.1,00,000/- and 25,000/- respectively and the same were received by Ranjit Majumder proprietor.
On perusal of agreement dt.18.12.2003 it appears that the said Ranjit Majumder is sole proprietor of Majumder Traders. On further perusal of Para No.2 of Page No.3, it appears that a Deed of Agreement dt.13.3.2002 was executed by and between the land owners (OP Nos.1 & 2 herein) and Ranjit Majumder and the said land owners executed a power of Attorney in favour of said Ranjit Majumder. On perusal of Para 4 & 6 of page No.6 of the said Agreement, it reveals that said Ranjit Majumder was supposed to complete construction of proposed building within stipulated time as mentioned therein i.d. the purchasers were entitled to deduct 25% of total amount.
On perusal of para Nos.10, 11 of page No.8 of the said agreement it appears that said Ranjit Majumder undertook to make arrangements for installation of electric meter, water connection. It is, therefore, evident that the said Ranjit Majumder promised to provide housing construction service to the Complainant.
Moreover, from the money receipts filed by the Complainant, it is evident that the amount deposited towards consideration was received by Ranjit Majumder.
On scrutiny of record, it appears that the instant Consumer Complaint was initiated against Shyamal Chakraborty, Gita Chakraborty, Ranjit Majumder and Basudev Halder and in course of the proceeding a copy of plaint in title suit being No.308 of 2014 pending before the Ld. 5th Civil Judge (Jr. Divn.), Alipore, was filed to show that the title suit has been filed by wife of said Ranjit Majumder who after demise of her husband initiated the same and, thereafter, a petition was also filed by the instant Complainant for expunging the name of Ranjit Majumder, which was allowed. But the Complainant took no initiative to bring the legal heirs of Ranjit Majumder on record by impleading them as party. The legal heirs of Ranjit Majumder were necessary parties in this case.
In order to pass an effective order, Complainant ought to have impleaded the legal heirs of the Ranjit Majumdar as parties to the instant case by way of substitution. But, no initiative has been taken by the Complainant to that effect.
Therefore, in absence of necessary party the instant complaint suffers from non-joinder of necessary parties.
In the result, the Consumer Complainant does not succeed.
Hence,
ordered,
That CC/525/2016 is dismissed for non-joinder of necessary party.
