IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/176/2017.
Date of Filing: Date of Admission: Date of Disposal:
31.10.17 07.11.17 10.07.19
Complainant: Banshi Chandra Dutta
S/O- Late Mangal Chandra Dutta,
38/C Dinabandhu Sanyal Lane,
PO- Khagra, PS- Berhampore,
Pin- 742103
-Vs-
Opposite Party: 1. Sri Sri Raghunath Deb Thakur
Represented by the Sebait
2. Raghunath Charan Roy S/o Sri Bhabani Charan Roy
No 1 Ambika Babu Lane,
PO- Khagra, PS- Berhampore,
Pin- 742103
3. Chandan Charan Roy, S/o Sri Bhabani Charan Roy
No 1 Ambika Babu Lane,
PO- Khagra, PS- Berhampore,
Pin- 742103
4. Dipankar Dutta, S/o Late Mangal Chandra Dutta
No 10/1 Ambika Babu Lane,
PO- Khagra, PS- Berhampore,
Pin- 742103
5. Uttam Saha, S/o late chanchal Kumar Saha,
No 27 Ambika Babu Lane,
PO- Khagra, PS- Berhampore,
Pin- 742103
Agent/Advocate for the Complainant : Sri. Sambarta Mukherjee.
Agent/Advocate for the Opposite Party Nos. 2&3 : Sri. Pranab Kr.Das.
Agent/Advocate for the Opposite Party Nos. 4&5 : Sri. Dibyendu Chatterjee.
Present: Sri Asish Kumar Senapati………………….......President.
Smt. Aloka Bandyopadhyay……………………..Member.
FINAL ORDER
Asish Kumar Senapati, Presiding Member.
This is a complaint under section 12 of the CP Act, 1986.
One Banshi Chandra Dutta (here in after referred to as the Complainant) filed the case against Sri Sri Raghunath Deb Thakur Represented by the sebait and Others (here in after referred to as the OPs) praying for compensation alleging deficiency in service.
The sum and substance of the complaint case is as follows:-
The Complainant is a tenant under OP No.1 and he was running a business of silver ornaments in his rented premises and OP Nos. 2 and 3 uses to collect rent. There is an agreement between the OPs and the Complainant for re-construction of the shop room and the OP Nos. 4 and 5 received a sum of Rs.20,000/- and it was agreed that the construction would be completed within March,2013. After expiry of March,2013, the reconstruction had not been completed. Ultimately, the Complainant sent a lawyer’s notice dated 15.06.17 and the OP Nos. 4 and 5 agreed to deliver the said shop room within one month but of no effect. Hence, the Complainant has filed the case praying for a direction upon the OPs to deliver the possession of the shop room and to pay a sum of Rs.1,00,000/- as compensation.
The OP Nos. 1 and 2 contested the case by filing written version on 08.05.18, contending that the case is not maintainable. It is the case of the OPs that the Complainant was never a tenant under the OP Nos. 1,2 and 3 and the OP No.2 never executed any deed of agreement as stated by the Complainant. It is a specific case of the OP Nos. 1,2 and 3 that a title suit being No. 53 of 2017 is still pending before the Ld. Civil Judge, Junior Division, 2nd Court at Berhampore. During the pendency of the suit the Complainant on 04.08.10 claimed himself as tenant of the suit property and ultimately, the Complainant joined as defendant No.6 of the suit. The Ld. Forum has no jurisdiction to entertain the matter as a civil suit is pending. The present case is also barred by law of limitation. The OP Nos. 1 and 2 pray for dismissal of the complaint.
The OP Nos. 4 and 5 contested the case by filing written version on 13.06.18 contending that the case is not maintainable. The OP Nos. 4 and 5 admitted the fact of execution of agreement between the Complainant and the OPs and the fact of receiving Rs.20,000/- from the Complainant for reconstruction of the shop room. The OP Nos. 4 and 5 are ready and willing to deliver the shop room t the Complainant but due to pendency of a civil suit and also for an order of injunction, the OP Nos. 4 and 5 could not reconstruct the old shop for delivery to the Complainant. The OP Nos. 4 and 5 have no intention to violate the terms and conditions of the agreement. The OP Nos. 4 and 5 pray for rejection of the complaint.
On the basis of the above versions following points are framed for proper adjudication of the case :
Points for decision
- Is the Complainant a consumer under the provision of the CP Act, 1986?
- Has this Forum jurisdiction to entertain the complaint?
- Is there any deficiency in service on the part of the OP, as alleged?
- Is the Complainant entitled to get any relief, as prayed for?
Point no.1
The Ld. Advocate for the Complainant submits that the Complainant is a consumer as she hired services of the OP for consideration.
On going through the complaint, written version and other materials on record and on a careful consideration over the submission of both sides, we find that the Complainant is a consumer in terms of section 2 (I )(d) (ii) of the C.P.Act, 1986.
Point No.2
The Ld. Advocate for the Complainant submits that the cause of action arose within the territorial jurisdiction of this Forum and the claimed amount is also within pecuniary limit of the District Forum.
On a careful consideration over the materials on record, we find that the cause of action arose within the territorial jurisdiction of this Forum and this Forum has pecuniary jurisdiction to entertain the complaint. Both the points are thus disposed of.
Point Nos.3&4
The Ld. Advocate for the Complainant submits that the Ops executed an agreement and the OP Nos. 4 and 5 received a sum of Rs.20,000/- for restriction and agreed to deliver possession of the shop room by March’13. He argues that the OPs have violated the terms and conditions of the agreement and so the OPs may be directed to deliver possession of the shop room after restriction.
It is urged that the OPs have deficiency in service and the Complainant is entitled to get compensation against the OPs.
In reply, the Ld. Advocate for the OP Nos.1,2 and 3 submits that the Complainant was never a tenant in respect of so called shop room. It is contended that a civil Suit is pending long before filing of this case and the Complainant had been incorporated as Defdt. No. 6in 2010. He argues that the an order of injunction over the disputed property is still in force and the O.P. No. 2 never executed any agreement with the Complainant.
We have gone through the materials onrecord and considered the submission of both sides. Admittedly, the case is related with a shop room and T.S. No. 53 of 2007 is pending before the Ld. Civil Judge, JuniorDiv., 2nd Court, Berhampore and an order of status quo is still pending. The Complainant is Defdt No.6in T.S. No. 53 of 2007.
The O.P. No. 2 had denied execution of the alleged agreement. T. S. no. 53 of 2007 is pendingand the Complainant has scope to ventilate his grievance before the Ld. Civil Court against the O.P. Nos.1,2 and 3.
The O.P. Nos. 4 and 5 received Rs.20,000/- from the Complainant on assurance to reconstruct the shop room by March,2013 but they have stated their inability due to injunction order. The O.P. Nos. 4 and 5 sent lawyer’s notice dated 22.06.17 requesting the complainant to wait for one month but they could not keep their words.
In our considered view, the O.P. Nos. 4 and 5 have deficiency in service and the complainant is entitled to get refund of Rs. 20,000/- along with interest @ 8% p.a. from the date of filing of this case till realization and compensation of Rs. 5,000/-.
We think that the Complainant cannot get any relief in this case as a Civil suit over the disputed property is pending where the Complainant may get adequate relief. We find it unreasonable to pass any order againstthe O.P. Nos. 1,2 and 3 specially when a civil suit is pending and an order of status quo is in force.
Reasons for delay
The Case was filed on 31.10.17 and admitted on 07.11.17. This Forum tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day orders.
In the result, the Consumer case succeeds in part .
Fees paid are correct. Hence, it is
Ordered
that theC.C No 176/2017 be and the same is dismissed on contest against the O.P. Nos. 1,2 and 3 without cost and allowed on contest against the O.P. Nos. 4 and 5 with cost of Rs.1,000/-
The O.P. Nos. 4 and 5 are directed to refund Rs. 20,000/- along with interest @ 8% p.a. from the date of filing of this case till realization to the Complainant by sixty days from the date of this order. The O.P. Nos. 4 and 5 are also directed to pay compensation of Rs. 5,000/- and litigation cost of Rs. 1,000/- to the complainant by sixty days from the date of this order.
Let plain copy of this order be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand /by post under proper acknowledgment as per rules, for information and necessary action.
The Final Order will also be available in the following Website:
confonet.nic.in
Dictated & corrected by me.
President
Member President.
