w w w . L a w y e r S e r v i c e s . i n



Monotosh Saha v/s Sanjit Thakurata & Others


Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

    First Appeal No. A/920/2017

    Decided On, 17 January 2020

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SAMARESH PRASAD CHOWDHURY
    By, PRESIDING MEMBER & THE HONOURABLE MRS. DIPA SEN (MAITY)
    By, MEMBER

    For the Appellant: Saikat Chatterjee, Advocate. For the Respondents: Prasanta Banerjee, Debesh Halder, Soumen Sekhar Ghosh, Advocates.



Judgment Text


Samaresh Prasad Chowdhury, Presiding Member

The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of complainant to impeach the final order/ Judgment being order No. 56 dated 18.08.2017 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-I (in short, ‘Ld. District Forum’) in Consumer complaint No. 249 of 2010 whereby the complaint lodged by the appellant under Section 12 of the Act was dismissed on contest without any order as to costs.

The appellant herein being complainant lodged the complaint before the Ld. District Forum stating that on 31.10.2004 he entered into an agreement with one Juthika Roy Chowdhury (since deceased), mother of OP No. 2 and the developer (OP No. 1) to purchase of a shop room measuring about 125 sq. ft. carpet area in the extreme south corner of the ground floor in G+4 storied building lying and situated at premises No. 23/A, Diamond Harbour Road, P.S.- New Alipore, Kolkata- 700053, Dist- South 24 Parganas within the local limits of Ward No. 81 of Kolkata Municipal Corporation at a total consideration of Rs. 1,60,000/-. The complainant has stated that she has paid Rs. 30,000/- to the developer as advance payment against the said total consideration amount. As per terms of the agreement the OPs were under obligation to complete the construction and handover the shop room within 16 months from the date of execution of agreement for sale. The complainant gradually made payment of Rs. 1,00,000/- to the OP No. 1 and thereby paid a total sum of Rs. 1,30,000/- against the total consideration of Rs. 1,60,000/-. After construction of the shop room, the complainant requested the OPs to deliver the possession and to execute the sale deed but the OPs have failed to do so. The complainants have alleged that the OPs are now trying to transfer the same to a 3rd party for which he lodged a written complaint against the OPs with the police on 11.07.2010. Thereafter, the complainant sent a legal notice on 20.07.2020 which has been duly received by OP No. 2 on 21.07.2010 and immediately thereafter sent a letter on 20.07.2010 accompanied an account payee cheque for Rs. 1,30,000/- cancelling the agreement dated 31.10.2004. The complainant immediately sent back the cheque to the sender through his Ld. Advocate. The complainant has stated that he has made several requests to the OPs to take the balance consideration money of Rs. 30,000/- for delivering the possession of the subject shop room and registration of the deed of conveyance in his favour but the same was turned a deaf ear. Hence, the appellant approached the Ld. District Forum with prayer for several reliefs, viz.- (a) to direct the OPs to hand over the shop room as mentioned in the 3rd schedule to the petition of complaint after receipt of balance consideration amount of Rs. 30,000/-; (b) to direct the OPs to execute and register the deed of conveyance in respect of the property as mentioned in the 3rd schedule; (c) to direct the OPs to pay Rs. 6,35,500/- towards the compensation; (d) to direct the OPs to pay Rs. 25,000/- as litigation costs etc.

The respondent No. 1/OP No. 1 by filing a written version has admitted that on 31.10.2004 the complainant had entered into an agreement and paid Rs. 30,000/- as earnest money and subsequently, did not pay any amount till 2009 and all on a sudden paid Rs. 1,00,000/- in 2009 without any consent and permission the OP No. 1. The OP No. 1 has also stated that considering the conduct of the complainant, the amount of Rs. 1,30,000/- was returned on cancellation of the said agreement. The OP No. 1 has stated that the complainant is well acquainted with each other and considering the relation the complainant paid a loan of Rs. 30,000/- in the year of 2004 in the business and to secure such loan the complainant insisted OP No. 1 to prepare an agreement for sale but unfortunately with some mala fide intention after lapse of 5 year he paid another sum of Rs. 1,00,000/-. The OP No. 1 has stated that the complainant is not entitled to any relief as he has already cancelled the agreement due to default on the part of complainant and also for transfer of the said shop room to a 3rd party i.e. Goyel Infotech Pvt. Ltd.

The respondent No. 2/OP No. 2 (landowner) by filing a written version has stated that the intention to purchase of the said room was for business and/or commercial purpose and as such the dispute does not come under the purview of the Act.

The respondent No. 3/OP No. 3 by filing a separate written version has stated that he entered into an agreement for sale with the OP Nos. 1 and 2 on 08.02.2010 to purchase of a shop room measuring about 420 sq. ft. to be the same and little more or less on the ground floor on the said premises at a total consideration of Rs. 21,50,000/-. Accordingly, they paid Rs. 10,00,000/- on 08.02.2010 i.e. on the date of agreement for sale and subsequently, on payment of entire consideration amount the OP Nos. 1 and 2 delivered the possession to them on 10.02.2010 and since then they have been in possession of the shop room. Therefore, the complaint should be dismissed.

The parties have tendered evidence through affidavit. They have also given reply against the questionnaire set forth by their adversaries. The parties have relied upon several documents. After assessing the materials on record, the Ld. District Forum by the impugned order dismissed the complaint, which prompted the complainant to come up in this commission with the present appeal.

Mr. Barun Prasad, Ld. Advocate appearing with Mr. Saikat Chatterjee, Ld. Advocate for the appellant has submitted that the Ld. District Forum has erred in law to hold that during existence of the agreement for sale of the appellant, the respondent Nos. 1 and 2 has any scope to enter into another agreement with respondent No. 3. He has further submitted that the Ld. District Forum has failed to understand and evaluate the evidence including the agreement for sale, letters and other documents filed by the appellant while passing the impugned order. At the time of advancing argument, Ld. Advocate for the appellant has placed before the Bench a Possession Letter dated 04.02.2019 issued by respondent No. 1/developer wherefrom it would reveal that on 04.02.2019 the developer has handed over delivery of vacant and peaceful possession of shop room measuring about 125 sq. ft. in the premises in question in terms of the agreement for sale dated 31.10,2004. Therefore, the impugned order should be set aside and the complaint should be allowed and the reliefs sought for by the appellant may be granted.

Mr. Prasanta Banerjee, Ld. Advocate for the respondent No. 1, on the other hand, has submitted that in accordance with the agreement for sale dated 31.10.2014, the appellant is entitled to a shop room measuring about 125 sq. ft. being carpet area out of developers allocation. Therefore, the vacant and peaceful possession of the aforesaid shop room was delivered to the appellant on 04.02.2019 in terms of the agreement for sale dated 31.10.2004.

Mr Alok Mukhopadhay, Ld. Advocate for the respondent No. 2 submits that having no fault on the part of respondent No. 2 he has been facing one after another case in different courts in respect of the property in question.

Mr. S.S. Ghosh, Ld. Advocate for respondent No. 3 has contended that OP No. 3 was not aware about the agreement for sale between the appellant and respondent Nos. 1 and 2 dated 31.10.2004. They have entered into an agreement for sale on 08.02.2010 with the developer to purchase of a shop room measuring about 420 sq. ft. approximately super built up area on the ground floor of the premises in question at a total consideration of Rs. 21,50,000/-. On the date of agreement for sale the respondent No. 1 has paid Rs. 10,00,000/- by cheque drawn on ICICI Bank. Subsequently, on 10.07.2010 the payment of entire consideration amount of Rs. 21,50,000/- the developer handed over the possession to the respondent No. 3 and since then the respondent No. 3 is in possession of the same. Therefore, when the respondent No. 2 being landowner had cancelled the agreement with the appellant, the appellant is not entitled to any relief.

We have given due consideration to the submission made by the Ld. Advocate appearing for the parties and seen the materials on record.

The overwhelming evidence on record make it quite clear that one Juthika Roy Chowdhury was the owner of a piece of land measuring about 2 cottahs 6 chittaks more or less lying and situated at premises No. 23A, Diamond Harbour Road, P.S.- New Alipore, Kolkata- 700053, Dist- South 24 Parganas within the local limits of Ward No. 81 of Kolkata Municipal Corporation. The said Juthika Roy Chowdhury, since deceased, (mother of respondent No. 2) had entered into an agreement with the OP No. 1 (developer) for raising a construction of a G+4 storied building over the said property. On 31.10.2004 the appellant had entered into an agreement with the respondent Nos. 1 and 2 whereby the developer has agreed to sale and the purchaser has agreed to purchase one shop room measuring about 125 sq. ft. more or less being the carpet area on the North East corner in the ground floor of the said premises at a total consideration of Rs. 1,60,000/-. It also transpires that on the date of agreement for sale the appellant has paid Rs. 30,000/- as earnest money and the developer has duly received the same. As per terms of the agreement the developer was under obligation to complete the construction and to handover the same and execute the sale deed in favour of the appellant within 16 months from the date of execution of agreement for sale.

Surprisingly enough, the parties kept silent for about long 5 years and only in the year 2009 after the lapse of 5 years the appellant has paid another sum of Rs. 1,00,000/- to the respondent No. 1 (developer) and thereby the appellant has paid a total sum of Rs. 1,30,000/- out of total consideration of Rs. 1,60,000/-.

The evidence on record also speaks that on 08.02.2010 the developer had entered into an agreement for sale with the respondent No. 3 to sell a shop room measuring about 420 sq. ft. super built up area on the ground floor of the premises in question at a total consideration of Rs. 21,50,000/-. Evidently, the respondent No. 3 has paid the entire consideration amount of Rs. 21,50,000/-. On payment of entire consideration amount the developer issued a possession letter in favour of the respondent No. 3 on 10.07.2010 and since then respondent No. 3 is in possession of the shop room on the ground floor.

The appellant has filed a possession certificate by surprise only at the time of hearing of the appeal which speaks that on 04.02.2019 the respondent No. 1/developer has delivered the vacant and peaceful possession of a shop room measuring about 125 sq. ft. in favour of the appellant in terms of agreement for sale dated 31.10.2004 and submits that after the said Possession Letter he has obtained Trade License from the Kolkata Municipal Corporation and going on paying electric bills to the Kolkata Electric Supply Corporation.

Another aspect of the matter is important that it has been stated that Juthika Roy Chowdhury during her life time executed a will in favour of her son i.e. respondent No. 2. However, no evidence has been adduced by the parties whether the probate was obtained in respect of the said will. If the will is not probated, the right of the testator will not confer exclusively upon respondent No. 2 and in that event the other legal heirs of the deceased Juthika Roy Chowdhury will become the co-sharer along with respondent No. 2. It has also come to surface that on scrutiny the Ld. District Forum found that respondent No. 3 is in possession of the shop room measuring about 420 sq. ft.

From the evidence on record it is transpired that in the year of filing of the complaint, the respondent No. 3 has instituted a suit for declaration an injunction being TS No. 3454 of 2010 in the court of Ld. Civil Judge (Junior Division), 2nd Court at Alipore.

It is well settled law that in an appropriate case where there is an acute dispute of facts necessarily the Tribunal has to refer the parties to original Civil Court established under the Civil Procedure Code or appropriate State Law to have the claims decided between the parties. The Ld. District Forum has observed:

“From the materials on record it appears that that complicated question of Civil dispute arose between the parties regarding the claim made by the complainant as well as the plea taken by the OP No. 1 that he took the amount from the complainant as loan. It is also admitted fact that a third party is in possession of the said shop room in question by occupying more than the carpet area as alleged by the complainant which the complainant wanted to purchase from the OP NO. 1. In order to give proper relief to the complainant the complainant ought to have filed

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the case before a Civil Court with a prayer for filed declaration and mandatory injunction. The dispute raised by the parties to this case is complex issues of civil nature and issues involved in this proceeding such a question also has to be decided by a Civil Court in regular proceedings and not by consumer proceedings......” After giving thoughtful consideration to the submission advanced by the Ld. Advocate appearing for the parties and on going through the materials on record vis-a-vis the impugned order we do not find any reason to differ with the view of the Ld. District Forum. In other words, since the dispute involves complicated question of facts and law and further respondent No. 3/OP No. 3 has already taken shelter of a competent Civil Court, we think the Ld. District Forum was quite justified in dismissing the complaint. In view of the above, the appeal is dismissed on contest. No order as to costs. However, this order will not debar the appellant/complainant to approach the appropriate Forum/Competent Civil Court in accordance with law and in order to overcome the hurdle of limitation, he may seek assistance of the decision of Hon’ble Supreme Court reported in (1995) 3 SCC 583 (Laxmi Engineering Works –vs- PSG Industrial Institute). The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-I for information.
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