Dt. of filing - 08/03/2018
Dt. of Judgement – 21/01/2019
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed under Section 12 of the Consumer Protection Act by the Complainant namely Sri Rabindra Nath Das against the Opposite Parties namely 1) Smt. Sovona Ghosh 2) Smt. Sefali Guha Roy 3) Smt. Putul Pal 4) Sri Debraj Pal 5) Sri Debasish Pal and 6) Sri Malay Chatterjee, proprietor of M/s. Metromech Construction alleging deficiency in rendering services on their part.
Complainant’s case in brief is that a development agreement dated 19/04/2004 was entered into between Opposite Party No.6 and the owner of the land namely Renuka Bala Dasi alias RenukaPal who was the predecessor-in-interest of OP No.1 to 5 to raise multi-storied building on the land measuring 6 cottah 15 chitacks 42 sq ft at premises no.93, R.N.Das Road, Dhuria, P.S. Garfa, Kolkata 31. As per the said development agreement some flats and shop rooms of the said multi-storied building under construction fell under developer’s allocation. So by an agreement for sale dated 24/06/2005, OP No.6 agreed to sell one shop room to the Complainant being no.5 measuring an area of 120 sq ft on the ground floor inside portion in the said newly constructed building at a total consideration price of Rs.6,25,000/- Complainant has paid the entire amount. Developer/OP No.6 instead of going for registration of the deed had put the Complainant to the possession of the shop room. Although Complainant has been running his business in the shop room but he has not been recorded as owner of the shop room due to non-registration of the deed. Complainant has learnt that said Renuka Bala died intestate in 2009 and as such Power of attorney in favour of the developer OP has become inoperative. Complainant sent notice to OP No.1 to 5 the legal heirs of the deceased Renuka Pal and to OP No.6 for execution and registration of the Deed of Conveyance but all in vein and thus present complaint has been filed by the Complainant praying for directing the Opposite Parties to execute and register the Deed of Conveyance in respect of the subject shop room and to pay Rs.50,000/- towards harassment.
On perusal of record it appears that the OP No.6 did not take any step inspite of service of notice and thus case proceeded ex-parte against him.
OP No.1 to 5 contested the case by filing the written version contending inter alia that Renuka Pal did not die in 2009 but she died on 3/08/2008. It is further stated that at the time of execution of agreement by OP No.6, Power of attorney had become invalid and inoperative. However OPs being gentle persons are ready to execute the Deed of Conveyance but on production of original copy of agreement for sale. It is further stated by the OP No.1 to 5 that they being senior citizens are suffering from artharities and thus step should be taken by the Complainant for execution and registration in their home.
Complainant has annexed copy of agreement dated 24/06/2005, money receipts, legal notice sent to the Opposite Parties, copy of partnership deed and copy of dissolution of partnership.
So the following points require to be determined:-
- Whether there has been any deficiency in service in providing service by the OPs?
- Whether the Complainant is entitled to the reliefs as prayed for?
Decision with reasons
Point No. 1 & 2
Both these points are taken up for comprehensive discussion.
It is claimed by the Complainant that the agreement was entered into between him and OP No.6 in order to purchase the schedule shop room as stated in the complaint petition. A copy of the agreement has been filed and its original has also been produced wherefrom it appears that the agreement in effect was executed on 24/06/2005 between the OP No.6 in one part and three persons namely Smt. Rekha Biswas, Sri Rabindra Nath Das and Sri Ratan Das on the other part. So the agreement for sale on the basis of which the Complainant is claiming deficiency in services on the part of the Opposite Parties, was executed by three persons of which present Complainant is one of the purchaser in the said agreement. Even though some documents showing dissolution of partnership has been filed by the Complainant indicating that the said three purchasers as stated in the agreement dated 24/06/2005 were in effect had entered into a partnership and so being partners they entered into said agreement with the OP No.6 on 24/06/2005. Two documents which appears to be dissolution of partnership has been filed. One is dated 27/01/2017 i.e. dissolution of partnership between present Complainant Rabindra Nath Das & Ratan Das. Another dissolution of partnership is dated 26/12/2017 dissolving the partnership between Rekha Biswas, Ratan Das and Rabindra Nath Das dated 26/12/2007. From this dissolution of partnership, Rekha Biswas retired from the partnership. One deed of partnership is also filed which is dated 17/04/2010 wherefrom the name of Ratan Das and Rabindra Nath Das only appears. No document has been filed with regard to partnership in the name of Rekha Biswas appearing in the agreement for sale dated 24/06/2005. By filing these documents Complainant intends to state that subject shop room was actually purchased by the M/s. Astha Pharmacy by three partners namely Rekha Biswas , Ranindra Nath Das & Ratan Das. But for the reason best known to Complainant, there is no reflection in the agreement dated 24/6/2005 about said M/s. Astha Parmacy. Agreement for sale only indicates the said three persons entered into the agreement for purchase of the shop room in their respective individual capacity and not being partners of the said M/s. Astha Pharmacy. If Complainant and others had purchased the subject shop room as partners of Astha Pharmacy, there should have specific reflection to this effect in the agreement. So agreement dated 24/6/2005 which is the basis of filing this case by the Complainant alleging deficiency in services cannot be related to partnership as sought to be placed by the Complainant before this Forum. Moreover, the petition of complaint is also totally silent about those three persons including the Complainant, entered into agreement as partners and subsequently about dissolution of partnership. Furthermore even though the document relating to dissolution of partnership with Rekha Biswas is filed but no partnership deed is filed by the Complainant to show that the said Rekha Biswas was actually a partner with the present Complainant and Ratan Das. I have already highlighted above that the deed of partnership dated 17/4/2010 is only in the name of Rabindra Nath Das and Ratan Das.
The documents filed in this case by the Complainant also includes 1) CESC Bill which stands in the name of Astha Pharmacy indicating that the said Astha Pharmacy is the purchaser and occupant of the said shop room. But the present complaint has been filed by Rabindra Nath Das in his individual capacity and not proprietor of the said Astha Pharmacy. So in view of the discussion as highlighted above, as the agreement is in the name of three persons but there is no reflection about the Astha Pharmacy, same cannot be related with the case as made out by the Complainant in this complaint petition. More so, as the said Astha Pharmacy has not been made as a party, complaint is liable to be dismissed. These points are answered accordingly.
Hence,
ORDERED
CC/113/2018 is dismissed ex-parte against OP No.6 and on contest against OP Nos.1 to 5.
