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Tapas Dey v/s Aronjit Saha & Another


Company & Directors' Information:- DEY ' S COLD STORAGE PRIVATE LIMITED [Active] CIN = U63022AS2001PTC006453

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

Company & Directors' Information:- B DEY (INDIA) PVT LTD [Active] CIN = U50300WB1951PTC020173

Company & Directors' Information:- S C DEY & CO PVT LTD [Active] CIN = U15209WB1989PTC047623

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

Company & Directors' Information:- B L DEY PVT LTD [Active] CIN = U51909WB1943PTC011302

Company & Directors' Information:- DEY & CO PVT LTD [Strike Off] CIN = U27209WB1948PTC017442

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

Company & Directors' Information:- DEY & CO LTD [Strike Off] CIN = U51900WB1948PLC020916

    First Appeal No. A/188/2018

    Decided On, 27 March 2019

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. JUSTICE ISHAN CHANDRA DAS
    By, PRESIDENT
    By, THE HONOURABLE MRS. SAMIKSHA BHATTACHARYA
    By, MEMBER & THE HONOURABLE MR. SHYAMAL KUMAR GHOSH
    By, MEMBER

    For the Appellant: Subrata Mondal, Advocate. For the Respondent: None appears.



Judgment Text

Samiksha Bhattacharya, Member

This Appeal u/s 15 of the C.P. Act, 1986 has been filed by Appellant / Complainant challenging the order dated 08.11.17 passed by Ld. DCDRF, Kolkata Unit –III ( South) , in MA/ 77/2017 connected with the Complainant case No. CC/350/17 , where the complaint case was dismissed for being not maintainable.

Aggrieved by and dissatisfied with the order of Ld. DCDRF, the Complainant filed the instant Appeal.

Brief facts of the case are that the Respondent No.2 /OP No. 2 being the owner made an Agreement with the Developer /OP No.1 / Respondent No.1 to develop and construct a residential building on his said plot of land at 5/24 Ajad Garh , P.S.Jadavpur, Kolkata -700040 , District – 24 Parganas (South) KMC premises No. 26/132A /5 , Graham Road , District – 24 Parganas ( South), on 24.11.2011 . The owner /OP No.2 / Respondent No.2 had made an agreement to sell his portion i.e., entire ground floor of 400 sqft area with undivided proportionate share of land and common passage with the purchaser /Complainant at a total consideration of Rs. 5,00,000/- on 12.05.2012 . Complainant paid a sum of Rs. 75,000/- as per memo of consideration on the first phase and thereafter , he paid Rs. 4,61,000/- by installments through cheques and cash to the Developer . Thus the Complainant/Appellant paid Rs. 5,36,000/- in total . The Developer /OP No.1 / Respondent No.1 had agreed to complete the building and give possession within 18 months as per Agreement with the owner /OP No. 2/ Respondent No. 2 . The Respondent No. 1 also gave his declaration that he would give possession within 4 months from the date 11.03.15 in presence of witness and have taken Rs. 40,000/- by cheques. Complainant requested Respondent No.1 by his letters dated 15.03.16 , 26.12.16 , 20.02.17 , 24.03.17 to hand over and give possession of ground floor flat measuring about 400 sqft. at 5/24 Azad Garh, P.S. Jadavpur, Kolkata -700 024. But no reply came to the Complainant . Hence, the complaint case was filed before DCDRF, Unit –III, Kolkata (South) praying for a direction to handover the purchaser’s allocation and give possession including common passage as mentioned in the schedule B along with compensation of Rs. 1,00,000/- for delay, harassment and mental agony , cost of Rs. 6.40 lakh for monetory loss and bank interest @9% p.a. compounded till realization , litigation cost of Rs. 70,000/-.

After appearing before Ld. DCDRF OP No.1 / Respondent No.1 filed the petition vide MA No. MA./77/2017 challenging the complaint on the ground of maintainability . Ld. Forum has observed that Complainant entered into the Agreement with the OP No.2 and not with the developer . Ld. Advocate for OP No.1 submitted before DCDRF, that the purchase was a sale simpliciter and the Agreement does not reveal that there was any kind of service . So, the Ld. Forum holds that the Forum has no jurisdiction over any simpliciter sale.

The Ld. Forum has also observed that Agreement for Sale was in the year 2012 and the complaint was filed after about 5 years . The Agreement was in between OP No.2 and Complainant . Nowhere there is signature of the developer . No development agreement has been filed . Therefore, the Forum holds that the complaint case is not maintenable since deficiency in service does not arise.

On the date of hearing only Ld. Counsel on behalf of Appellant / Complainant appeared before this Commission. Ld. Counsel for the Complainant submitted that in the Agreement for Sale between OP No.2 and Complainant, Ld. Counsel also drew our attention by showing that in that Agreement, it was mentioned in para- 5 that if the ‘owner / vendor did not complete the said flat during the period , in that case the purchaser shall claim interest at the bank rate which amount paid by second part.’ Therefore, it is obvious that building was under construction so the question of sale simpliciter does not arise. In para -6 of general power of attorney dated 24.11.11 it was also mentioned that ‘ to negotiate on terms for and to agree and to sell of the said flats/space of proportionate and/or flat/flats, infrastructures to be lying or situated with common spaces and car parking space/share etc. except the portion of our allocations and by complying with the covenants as mentioned in the said agreement in the said premises to any purchaser or purchasers either for space, proportionate share of and/ or flat/ flats or space and to receive advance from the Buyer/ Buyers and liable to deposit the same in my Bank Account.’ (running page -24) .

In the Agreement for Sale it was stated that the developer has agreed with the proposal of the the owner to construct a building on the said plot at postal premises No. 5/24 Ajad Garh , P.S.Jadavpur, Kolkata -700040 , District – 24 Parganas (South). The owner had approached the developer i.e., OP No.1 to construct the building on the said plot and for that purpose the owner / OP No.2 entered into an agreement with the developer. The Complainant intended to purchase a flat from the owner’s allocation and part consideration was paid to the developer . Therefore, the Complainant is a consumer. Till date Complainant is not in possession of the flat , so there is continuous cause of action. Therefore, the case is not barred by limitation.

But on perusal of materials on Record and on careful reading of the complaint petition we have observed that there are latches in the drafting of complaint petition. Some points are missing in the said petition and for that reason Complainant cannot corroborate his claim supporting the documents.

Therefore, we are in the view that for the principle of natural justice and to give better service to the consumer, Complainant is at liberty to amend the complaint petition .

As per above discussion we set aside the order being No. 8 dt. 08.11.2017 passed by Ld. Forum and Appellant/ Complainant is at liberty to file amended version of complaint petition before the concerned Forum after serving the notice to the O.Ps. along with the amended version of complaint petition.

Thus the instant Appeal is allowed ex parte and impugned order is set

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aside. The complaint case is being remanded to the Ld. District Forum to decide the case afresh and the Ld. Forum will proceed with the case as per law . In view of the aforesaid conclusion we refrain ourselves from passing any opinion on other issues involved in the case. Both the parties are directed to appear before the Ld. DCDRF, Kolkata Unit –III(South) on 08.05.19. Complainant is directed to file amended version of the complaint before the Ld. Forum on the date fixed . The Appeal is thus disposed of. The Registrar of the Commission is directed to send a copy of the order to Ld. DCDRF, Kolkata Unit III ( South ) for information.
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