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

Sujit Kumar Sarkar & Another v/s M/s. Goal Park Construction & Others

    First Appeal No. A/1272/2017

    Decided On, 03 January 2019

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, MEMBER

    For the Appellant: Chapal Kumar Shome, Advocate. For the Respondents: Alok Kumar Ghoshal, K.M.G. Rahaman, Advocates.

Judgment Text

Samaresh Prasad Chowdhury, Presiding Member

All the three appeals being A/1272/2017, A/368/2018 & A/74/2018 have been filed by the Decree Holder under Section 27A of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) to assail the Order No. 17 dated 09.11.2017 passed in MA/219/2017, Order No.16 dated 17.10.2017 and Order No.20 dated 28.12.2017 passed in MA/340/2017 and all these orders had been passed in connection with EA/62/2015 arising out of CC/288/2014 passed by the District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (for short, Ld. District Forum). Since the all the three appeals have arisen out of orders from a same record being EA/62/2015, the judgement/final order passed in this appeal will govern the other two appeals.

The Appellants herein being Complainants lodged a complaint under Section 12 of the Act before the Ld. District Forum on 03.06.2014 and the said complaint was allowed on 14.01.2015 with the following directions –

“OP Nos. 1, 2 & 3 are directed to deliver the physical possession of the garage space in favour of the complainants according to 2nd Schedule of the Agreement dated 01.09.2000 within one month from the date of this order.

OP Nos. 1, 2 & 3 are also directed to pay compensation of Rs.5,000/- and Rs.3,000/- as litigation cost to the complainants within one month from the date of the order, failing which the OPs shall have to pay a sum of Rs.100/- per day from the date of the order till its realisation, as punitive damages, which shall be deposited by the OPs in the State Consumer Welfare Fund”.

To assail the said order, the OP No.1 Construction Firm and its partners preferred an appeal in this Commission being FA/181/2015 and the said appeal was dismissed on contest with cost of Rs.5,000/- by a final order/judgement dated 11.08.2016. The developer did not prefer any revision petition in the Hon’ble National Commission. Therefore, the order passed by the Ld. District Forum has attained finality.

By filing an application being MA/219/2017, which has been rejected on 09.11.2017 against which FA/1272/2017 has been filed, the appellants/decree holders pray for a direction upon the judgement debtor nos. 2 & 3 to comply with the basic order dated 14.01.2015 passed in CC/288/2014 by providing car parking space as per sketch plan and as per WB Municipal (Building) Rules 2007 which provides that car parking space should be 8 ft. and to provide revised sanctioned plan. By application being MA/340/2017 which was disposed of on 28.12.2017 against which FA/74/2018 has been preferred by which the application filed by the J.Drs. whereby they have made a prayer for disposal of execution application was allowed with an observation that as it has been intimated that an appeal has been preferred by the D.Hr. before this Commission being A/1272/2017, the execution application cannot be disposed of. The FA/368/2018 stems from an order being Order No.62 dated 17.10.2017 where it has been observed by the Ld. District Forum that neither the complainants nor the OPs raised any objection against the report of Engineer Commissioner by filing questionnaire. Hence, the report of Engineer Commissioner being unchallenged is accepted.

In this backdrop, let us first see the description of the property required to be executed. The schedule property is 1/9th share of car parking space measuring 582 sq. ft. i.e. 64.66 sq. ft. car parking space together with proportionate share or interest in the property lying and situated at Premises No.141, R.N. Guha Road, P.S.- Dum Dum, Kolkata – 700028, Dist- North 24 Parganas within the local limits of South Dum Dum Municipality. For the purpose of effective execution of the order, one Mr. Surajit Mitra, one Engineer Commissioner was appointed and after inspection of the property, the Ld. Engineer Commissioner has submitted a report on 03.04.2017 and to the effect that – (1) the demarcated part of the garage space on north-east direction (marked as No.1) in the name of complainant no.1/D.Hr. No.1 was measured and found to be 3” x 21.7” = 64.75 sq. ft. and (2) the demarcated part of the garage space on south-east direction (marked as No.8) in the name of complainant no.2/D.Hr. No.2 was measured and found to be 3” x 21.7” = 64.75 sq. ft. The Ld. Engineer Commissioner has finally observed that the measured demarcated portions of the garage space in favour of the complainants/D.Hrs. are according to the 2nd schedule of the agreement/registered Deed of Sale on 01.09.2000 provided to the complainants/D.Hrs.

Ld. Advocate for the D.Hrs. has submitted that challenging the said report, they have filed an application on 13.04.2017 before the Ld. District Forum and stated that there are several discrepancies and mistakes committed by the Ld. Engineer Commissioner for which the report cannot be accepted. We are astonished to see that in their written objection, the D.Hrs./appellants have stated that as per WB Municipal Building Rules, the width of a car parking space should be 8ft. for a 4 wheeler but the Engineer Commissioner did not follow the WB Municipal (Building) Rules, 2007.

Ld. Advocate for the Appellants has also drawn our attention to the Notification of Calcutta Gazette to appraise the rules regarding the buildings or car parking spaces within CMDA (now KMDA) area including the South Dum Dum Municipality where the property is situated.

Needless to say, a Consumer Forum is primarily meant for disposal of a complaint in a summary way for a limited purpose. In a landmark decision reported in AIR 1996 SC 2508 [Bharati Knitting Company –vs. – DHL Worldwide Express Courier Division of Airfreight Ltd.] the Hon’ble Supreme Court has observed – “where there is an acute dispute of facts necessarily the Tribunal has to refer the parties to original Civil Court established under the CPC or appropriate State law to have the claims decided between the parties”.

The Ld. Advocate for the appellants, virtually, has challenged the authenticity or legality of the Agreement because as per terms of the Agreement, the complainants/D.Hrs./appellants are entitled to two car parking spaces of 64.66 sq. ft. each and not more than that. Either of the parties or even a Court of law has no authority to rewrite the Agreement between the parties. Therefore, a Forum constituted under the Act will not enter into intricate questions of fact and law to determine as to whether the developer had any authority to enter into any agreement with the appellants by violating the provisions of West Bengal Municipal Building Rules etc.

Ld. Advocate for the Appellants has tried to establish a case by referring paragraph 18 of a decision of Hon’ble Supreme Court contained reported in (2018) 4 WBLR (SC) 401 [Meenakshi Saxena & Anr. – Vs. – ECGC Ltd.]. In the said decision, the Hon’ble Supreme Court has observed thus –

“18. The whole purpose of Execution proceeding is to enforce the verdict of the Court. Executing Court while executing the decree is only concerned with the execution part of it but nothing else. The Court has to take the judgement in its face value. It is settled law that Executing Court cannot go beyond the decree. But the difficulty arises when there is ambiguity in the decree with regard to the material aspects. Then it becomes the bounden duty of the Court to interpret the decree in the process of giving a true effect to the decree. At that juncture, the Executing Court has to be very cautious in supplementing its interpretation and conscious of the fact that it cannot draw a new decree. The Executing Court shall strike a fine balance between the two while exercising this jurisdiction in the process of giving effect to the decree”.

In the instant case, we do not find any ambiguity to execute the decree after taking the judgement in its face value. Therefore, the referred decision has no manner of application in the facts and circumstances of the present case.

The Ld. Advocate for the appellants has tried his level best to impress that the Ld. Engineer Commissioner after measurement found the total garage space as 572.56 sq. ft. though as per Agreement, it should have been 582 sq. ft. It is not the case of the appellants that they have filed the complaint in a representative capacity in accordance with the provisions of Section 12(1)(c) of the Act and, therefore, when there are other six car parking spaces and none of the owners of those six car parking spaces have come up to raise the dispute with the tune of the appellants, the submission made by the Ld. Advocate for the appellants has lost its force.

Considering the entire facts and circumstances, when it appears that the execution case is virtually ended with

Please Login To View The Full Judgment!

full satisfaction and the Ld. District Forum has rightly observed to that effect in Order No.20 dated 28.12.2017 while disposing of application of J.Drs. being MA/340/2017 there is nothing left open for consideration in the execution case. Therefore, after giving due consideration to the submission advanced by the Ld. advocates of the parties and on going through materials on record, we do not find any reason to interfere with the orders impugned. In other words, the impugned orders do not suffer from any infirmity and as such it should be upheld. As a result, all the appeals are liable to be dismissed. Consequently, the above mentioned three appeals are dismissed on contest. However, there will be no order as to costs. The impugned orders are hereby affirmed. The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat for information.