Dt. of filing- 30/06/2017
Dt. of Judgement- 18/02/2019
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint filed by the complainant namely Sri Meghnad Sardar under Section 12 read with Section 13 of the Consumer protection Act against the Opposite Parties namely (1) Sushanta Chowdhury (2) Shri Pijush Kanti Ghosh (3) Sri Meghnad Ghosh (4) Shri Biswanath Ghosh (5) Smt. Bobita Ghosh and (6) Smt. Krishna Dutta alleging deficiency in rendering service on their part.
Brief fact of the complainant’s case is that the OP No.1 being the proprietor of Chowdhury Construction entered into a development agreement with the owner being OP Nos. 2 to 6 to construct a multi-storied building situated at Mouza – Royapur, J. L. No. 23 comprising C.C. Plot No. 119 (P), E.P. No. 262, S.P. No. 286 under Jadavpur Police Station. Complainant entered into an agreement of sale with the OP No.1 dated 11.05.2012, to purchase a flat on the ground floor of the building described in the schedule of the complaint petition at a total consideration price of Rs. 7,00,000/-. Complainant has already paid Rs. 2,15,000/- out of the said total consideration of Rs. 7,00,000/- at the time of entering into the agreement for the sale. The developer /OP No.1 agreed to handover possession of the flat within two years of the date of agreement of sale but inspite of the several requests made, OP have failed to handover the possession. A notice has also been sent by the complainant but of no use. Thus , the present complaint has been filed for directing the OPs to execute and register the deed of conveyance in favour of the complainant in respect of the schedule flat, to pay compensation of Rs. 2,30,000/- and litigation cost of Rs. 15,000/- and also directing the OP to provide Completion Certificate of the building.
OP Nos. 5 and 6 have contested the case by filing W.V. Denying material allegations made in the complaint petition. It has been contended by the OPs that a development agreement dated 04.05.2012 was executed between OP Nos.2 to 6 and the OP No.1. But the same was subsequently revoked by the OP Nos. 2 to 6 on 29.11.2014. It is further stated that one Shyamal Sardar on the basis of forged and manufactured sale agreement, obtained an order from the Ld. District Forum on 26.03.2015 in CC/419/2014 and subsequent to the said order the flat in question is in possession of the said Shyamal Sardar and deed has also been executed in his favour through the machinery of the Ld. District Forum. A Title Suit has been filed by the OP Nos. 2 to 6 against the said Shyamal Sardar to recover the Khash possession and mandatory injunction. So the present case is not maintainable and thus OPs have prayed for dismissal of the complaint petition.
On perusal of the record it appears in spite of the service of notices, other OPs did not take any step and thus the case proceeded exparte against the other OPs.
Complainant has annexed with the complaint petition. Copy of the agreement for sale dated 11th May 2012, money receipts, copy of notice and copy of the complaint lodged by the complainant before the Jadavpur Police Station.
In course of the evidence, complainant and the OP Nos 5 & 6 filed their respective evidence followed by the questionnaire and reply thereto and ultimately argument has been advanced by both the parties.
So the following points require determination:-
(1)Whether the present case is maintainable in its present form and in law?
(2)Whether the complainant is entitled to the relief as prayed for ?
Decision with reasons :
Point Nos. (1 )and( 2) :
Both these points are taken up together for discussion for the sake of convenience and also in order to avoid repetition. At the very outset it may be pertinent to point out that the contesting OPs have filed certain documents which includes the copy of the order passed by the Ld. D.C.D.R.F. dated 26.03.2015 in CC/419/2014. On perusal of those documents it appears that one Shyamal Sardar had filed a consumer complaint in respect of the same flat as described in the schedule of the present complaint petition and by judgement dated 26.03.2015 Ld. District Forum directed all the OPs to handover the possession of the flat and to pay the compensation and also directed to execute and register the deed of conveyance. OPs in the said case being CC/419/2014 were the present OPs as in this case. It appears further from the order passed in the said consumer complaint that the deed has already been executed by the machinery of the Forum and the said Shymal Sardar has also got the possession of the schedule flat. So it is apparent from the order passed in the said CC/419/2014 that consequent to the direction and order of the Consumer Forum, deed has already been executed and the possession has also been handed over to one Shyamal Sardar in respect of the subject flat . If that be so, when the judgement has been passed by the competent Forum and the order has reached its finality, there is no scope for this Forum to pass an order directing to handover the possession and execute the deed in respect of the same flat in favour of the present complainant. It may also be pertinent to point out that admittedly said Shyamal Sardar and the present complaint namely Meghnad Sardar are relative. The argument of the Ld. Advocate appearing for the complainant that the agreement executed in favour of the present complaint was prior in time merits no consideration, in view of the finality of the judgement passed on 26.03.2015 in CC/419/2014. Moreover, the documents filed by the OPs annexed with the W.V. also discloses that the agreement in favour of Shyamal Sardar the complainant in CC/419/2014 was also executed in the same day i.e. on 11.05.2012. So in view of the discussions as highlighted above, present case is not maintainable and thus liable to be dismissed. These points are thus answered accordingly.
Hence,
ordered
CC/355/2017 is dismissed on contest against OP Nos. 5 and 6 and exparte against the other OPs.
