Date of filing :17.11.2017
Judgment : Dt.7.11.2019
Mrs. Balaka Chatterjee, Hon’ble Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sri Pradip Chakraborty alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Sri Suman Biswas, (2) Sri Rajkumar Dhar, (3) Sri Manik Sen, (4) Sri Somnath Roy and (5) Sri Debu Roy.
Facts in brief are that one Narayan Chandra Roy was original owner of a piece of land measuring more or less 1 cottah 10 chittacks 11 sq.ft. lying and situated in E.P.No.295, S.P.No.216, C.S. Plot No.633(P) in Mouza-Shibpur, J.L.No.42, P.S.-Jadavpur, Dist.-South 24-Parganas, being premises No.140/1/43 N.S.C.Bose Road, locally known as 2/81 Azadgarh, P.S.-Jadavpur, Kolkata-700 040.The Complainants have stated that said Narayan Chandra Roy entered into a Development Agreement on 4.7.2007 with the OP Nos.1, 2 & 3 for development of said property by constructing a multistoried building and also executed a General Power of Attorney in favour of the OP Nos.1, 2 & 3. The Complainants have further stated that they approached the OP Developers for availing housing construction service in respect of a flat measuring about 210 sq.ft. on the ground floor of the said multistoried building and an Agreement for Sale was executed by and between the Complainant, Landowner and the Developers on 16.2.2008 and as per said Agreement for Sale, the Complainant paid entire consideration amount of Rs.1,90,000/- and received possession of the flat in question from the OP Nos.1, 2 & 3 vide possession letter dt.4.6.2008, issued by the OPs but Deed of Conveyance had not been executed and registered in respect of the said flat though the same was to have been executed by the Landowner as agreed by the parties. It is stated by the Complainants that on several occasions they requested the OP Nos.1, 2 & 3 to execute and register the Deed but the OP Nos.1, 2 & 3 paid no heed to that request. Subsequently, said Narayan Chandra Roy, owner of the property died leaving behind his three sons and two daughters as his legal heirs out of whom two sons of said owners have been made parties to the instant case.
It is further stated by the Complainant that he has sent legal notice dt.17.8.2017 to the OPs and on receiving said notice the OP No.1 has sent reply dt.31.8.2017 but other OPs have remained silent, and as a result, Deed of Conveyance has not been executed and registered yet, which causes loss, suffering and, therefore, the Complainant by filing the instant Consumer Complaint has prayed for direction upon the OPs to execute and register the Deed of Conveyance in favour of the Complainant, to pay Rs.40,000/- for monetary loss, Rs.1,00,000/- towards compensation, another amount of Rs.1,00,000/- for further compensation and Rs.30,000/- for cost of litigation.
The Complainant annexed copies of property tax bill, Agreement dt.4.7.2007, General Power of Attorney dt.13.07.2007, Agreement for Sale dt.16.2.2008, letter dt.17.8.2017 issued from the end of the Complainant to OP No.1, Consignment Track report, letter issued by OP No.1 on 31.8.2017.
The OP No.1 contested the case by filing written version denying and disputing all the allegations made out in the petition of complaint stating inter alia that after completion of construction of the building developers handed over owners’ allocation to the owner Narayan Chandra Roy and, thereafter, to meet up their urgent need of money sold off the ground floor flat to the Complainant and handed over possession also. It is stated by the OP No.1 that he requested the Complainant on several occasions to take necessary step to ensure the presence of owner for registration of the Deed of Conveyance as owner is the confirming party to the process of registration but the Complainant did not take any step and due to such act of the Complainant, Deed of Conveyance could not be executed and prayed for dismissal of the case.
The OP Nos.4 & 5 by filing written version has stated that General Power of Attorney executed by Narayan Chandra Roy in favour of the Developer not for selling the flats and the Developers were not empowered to sell the flats and further OP Nos.4 & 5 were not aware about payment of consideration amount as claimed by the Complainant. It is specifically stated by the OP Nos.4 & 5 that they are not the only legal heirs of deceased Narayan Chandra Roy and, therefore, they were no way liable for any deficiency and accordingly prayed for dismissal of the case against them.
The Complainant and the OP No.1 and OP Nos.4 & 5 filed affidavit-in-chief followed by questionnaire and reply thereto.
In course of argument Ld. Advocate for the OP No.1 files BNA and specifically submits that the instant case has been filed by the Complainant against the Developer and two legal heirs out of six legal heirs of the owner Narayan Chandra Roy.
Points for determination
- Whether the case is maintainable
- Whether there is any deficiency in providing service on the part of the OP
- Whether the Complainant is entitled to the reliefs as prayed for
Decision with reasons
Point No.1 -
Admittedly, the Complainant entered into an Agreement for Sale in respect of a ground floor flat constructed by the Developers i.e. OP Nos.1, 2&3 on a piece of land owned by one Narayan Chandra Roy, landowner (Since deceased) and paid entire consideration amount. It is also admitted fact that a Development Agreement was executed by and between the landowner Narayan Chandra Roy (since deceased) and Developers (OP Nos.1, 2 & 3 herein) and a General Power of Attorney was also executed by the landowner Narayan Chandra Roy (since deceased) in favour of the Developer and by virtue of these documents the Developers were empowered to construct the building and to sell off their allocation to the intending purchaser.
It is stated by the Complainant in paragraph No.9 of the petition of complaint that subsequently the landowner Narayan Chandra Roy died leaving behind his three sons and two daughters as his legal heirs and OP Nos.4 & 5 both are sons of said landowner Narayan Chandra Roy have also stated in Paragraph No.11 of their written versions that ‘they are not only the legal representatives of deceased Narayan Chandra Roy’, which reveals that the Complainant while filing the Consumer Complaint has failed to bring all the legal heirs of the deceased landowner on record.
It is well settled that after demise of a person his legal heirs are entitled to get their equal share in the property. In the instant case, the Complainant for the reason best known to him, has made only two legal heirs as opposite parties and other three legal heirs have not been brought on the record. Therefore, the case suffers from non-joinder of necessary party.
Since the facts about the other legal heirs was very much in the knowledge of the complainant but he did not implead them inspite of OP also pointing out the same in the written version, no further opportunity is given and thus complaint being not maintainable is liable to be dismissed.
Point No.1 is decided accordingly.
Point Nos.2& 3: - Since Point No.1 is decided negative, there is no scope to go into the merit of the case.
In the result, the Consumer Complainant does not succeed.
Hence,
ordered
That CC/658/2017 is dismissed being not maintainable.
