The instant appeal under Section 15 of the Consumer Protection Act, 1986 (for brevity, the) is at the instance of an aggrieved person (not a party to the original complaint case) to impeach the judgment/final order dated 20th June, 2014 passed by the District Consumer Disputes Redressal Forum, South 24 Parganas at Alipore (in short Ld. District Forum) in Consumer Complaint No. 87 of 2014. By the impugned order, the Ld. District Forum allowed the complaint lodged by respondent nos. 1 & 2 ex-parte with a direction upon the respondent nos. 3 & 4 i.e. developer as well as landowner respectively to execute and register the Deed of Conveyance in favour of respondent nos. 1 & 2 within one month on receipt of balance consideration money by respondent no. 3/developer, with a further direction upon respondent no. 3/developer to pay compensation of Rs. 50,000/- and litigation cost of Rs. 5,000/- aggregating Rs. 55,000/- in favour of respondent nos. 1 & 2/purchasers otherwise the amount shall carry interest @ 9% p.a. till its realisation.

The respondent nos. 1 & 2 herein being complainants lodged the complaint before the Ld. District Forum asserting that on 20.07.2000 they entered into an agreement for sale with the respondent nos. 3 & 4 to purchase of a flat measuring about 1200 sq. ft. on the 2nd Floor at Premises No. 81, Rajdanga Main Road, P.S.- Kasba, Kolkata 700107, Dist.- South 24 Parganas within the local limits of Kolkata Municipal Corporation at a total consideration of Rs. 15,00,000/-. The respondent nos. 1 & 2 have paid Rs. 13,91,000/- on diverse dates as part consideration amount and it was agreed that the balance amount of Rs. 1,09,000/- will be paid at the time of execution and registration of the Deed. After receipt of Rs. 13,91,000/-, at the intervention of police authority, the respondent nos. 1 & 2 was given possession by respondent nos. 3/developer on 23.11.2002 and since then respondent nos. 1 & 2 were in possession of the flat and mutated their name in the Assessment Register of the Kolkata Municipal Corporation. Sometimes in May, 2013, the complainant had been to USA to spend few months with their daughters and taking advantage of the situation, respondent nos. 3 & 4 broke open the lock and took possession of the flat. Finding no other alternative, the respondent nos. 1 & 2 have filed the complaint against respondent no. 3/developer and respondent no. 4/landowner on the allegation of deficiency in services on the part of them with prayer for several reliefs, viz.- (a) a direction upon the respondent nos. 3 & 4 to execute the Deed of Conveyance in respect of the flat in question; (b) to direct the respondent nos. 3 & 4 to pay Rs. 3,00,000/- as compensation; (c) Rs. 50,000/- as litigation cost etc.

The respondent no. 3/opposite party no. 1/developer did not appear to contest. The respondent no. 4/opposite party no. 2/landowner appeared but ultimately did not contest. Under compulsion, the complaint was heard and allowed by the Ld. District Forum with certain directions upon the respondent nos. 3 & 4/opposite party nos. 1 & 2, as indicated above.

Challenging the said order, the opposite party nos. 1 & 2 did not prefer any appeal. However, the aggrieved person M/s Mandira Associates, a partnership firm, represented through its partner Smt Mandira Das has preferred this appeal stating that one Tushar Kanti Ghosh filed a suit for realisation of money being MS No. 29 of 2006 against respondent nos. 3 & 4 before the Ld. 5th Civil Judge (Senior Division) at Alipore and the said suit was decreed ex-parte. Thereafter, the said Tushar Kanti Ghosh filed a Money Execution case being M. Ex. Case No. 2 of 2011 before the Ld. Executing Court to put the decree in execution for recovery of money. In the said execution case, for realisation of money, the subject flat was put on auction sale. The appellant being highest bidder purchased the said flat and depositing the money. Thereafter, Deed of Conveyance executed and registered by the Ld. 5th Civil Judge (Senior Division) at Alipore in favour of the appellant on 23.12.2010 and accordingly, a Sale Certificate was duly issued confirming the sale.

Smt. Mousumi Chakroborty, Ld. Advocate for the appellant has submitted that the respondent nos. 1 & 2 suppressing all the facts initiated the complaint case being CC/87/2014 before the Ld. District Forum against respondent nos. 3 & 4 without impleading the appellant as a party having sufficient knowledge regarding the possession of ownership accrued by the appellant by virtue of an auction sale and therefore, the impugned order should be set aside.

In order to substantiate her argument, the Ld. Advocate for the appellant has also drawn my attention to the fact that the respondent nos. 1 & 2 herein filed the Misc. Case being No. 21 of 2013 before the Ld. 5th Civil Judge (Senior Division), Dist.- South 24 Parganas at Alipore against sale under Order 21 Rule 95 of C.P. Code and the said Misc. Case was dismissed on contest. Challenging the said order, the respondent nos. 1 & 2 preferred a Misc. Appeal being No. 65 of 2014 and the said Misc. Appeal has been dismissed by the Ld. Additional District Judge, 5th Court at Alipore on 20.05.2014. Considering the above, the impugned order should be set aside.

Per contra, Mr. Abhik Kumar Das, Ld. Advocate for respondent nos. 1 & 2 has contended that the agreement for sale between the respondent nos. 1 & 2/purchasers and respondent nos. 3 & 4 was executed on 20.07.2000 and on the contrary the appellant is claiming their right by way of an agreement for sale dated 12.10.2001. He has further submitted that the amended provisions of Section 17 of Indian Registration Act has come into force w.e.f. 24.09.2001 and when the appellant is relying upon an agreement which is not a registered one after enactment of the provisions in Section 17(1A) of the Registration Act, the said agreement for sale purported to be executed by the respondent nos. 3 & 4 in favour of one Tushar Kanti Ghosh bears no evidentiary value and relying upon that agreement for sale no order can be passed. He has further submitted that the respondent nos. 1 & 2 had entered into an unregistered agreement for the purchase of the subject flat on 20.07.2008 and on the date of signing the agreement for sale, the Registration Act did not make registration of agreement mandatory. Thereafter, when on the basis of the agreement for sale, a Deed of Conveyance has already been executed by the registering authority under the direction of the Ld. District Forum in execution case being EA/219/2014, a consumer Forum has no jurisdiction to cancel a Deed and as such the appeal should be dismissed. He has also drawn my attention to the Prayer Clause of the Memorandum of Appeal and submitted that a Forum constituted under the has no jurisdiction to restore the possession of the appellant to the subject flat.

I have given due consideration to the submission advanced by the Ld. Advocates appearing for the parties and scrutinised the ma trials on record.

None appears for respondent nos. 3/developer or respondent no. 4/landowner at the time of hearing of the appeal.

Undisputedly, respondent no. 4 was the owner of a piece of land measuring about 6 cottahs at Premises No. 81, Rajdanga Main Road, P.S.- Kasba, Kolkata 700107, Dist.- South 24 Parganas within the local limits of Kolkata Municipal Corporation at a total consideration of Rs. 15,00,000/-. On 22.01.1997 the respondent no. 4/landowner had entered into an agreement with respondent no. 3/developer for raising a construction of the building over the said property.

By dint of power conferred upon respondent no. 3 had entered into an agreement with the respondent no. 1 & 2/a couple to sell a Flat measuring about 1200 sq. ft. being Flat No. E2 on the 2nd Floor in the said building at a total consideration of Rs. 15,00,000/-. Annexure-C speaks that upon receipt of Rs. 13,91,000/- the developer/respondent no. 3 handed over the possession of the subject flat to the respondent nos. 1 & 2 on 23.11.2002. After receiving possession, the respondent nos. 1 & 2 mutated their names in the Assessment Register of Kolkata Municipal Corporation. Thereafter, time and again respondent nos. 1 & 2 requested the respondent no. 3 to execute the Deed of conveyance after accepting the balance consideration amount but the respondent no. 3 on different pretexts did not fulfil his part of obligation. The respondent nos. 1 & 2 have made several correspondences with the Police and ultimately due to active assistance of Jadavpur P.S. the respondent nos. 1 & 2 could take possession.

However, after six months sometime in May, 2013 when the respondent nos. 1 & 2 had been to U.S.A to spend few months with their daughters, who were scientists by profession, taking advantage of the situation, the developer broke open the lock and took possession of the flat. Ultimately, the situation compelled the respondent nos. 1 & 2 to lodge the complaint before the Ld. District Forum being CC/87/2014 and the Ld. District Forum allowed the complaint but the said order was not adhered to by the respondent nos. 3 & 4 for which the respondent nos. 1 & 2 filed an Execution Case being EA/219/2014.

The fact remains that on the strength of order passed by the Ld. District Forum in execution case, a Deed of Conveyance has already been executed and registered in favour of respondent nos. 1 & 2/decree holders. By Order No. 16 dated 18.03.2016 the Ld. District Forum has observed that if any unknown person like Mandira Das if remained in possession of the subject flat, the same has happened due to developer i.e. respondent no. 3 and as such the Ld. District Forum issued warrant of arrest against Shri Dipak Guha Bakshi, Proprietor of Developer Firm/respondent no.3.

In the complaint case lodged by respondent nos. 1 and 2 there was hardly any scope to implead the appellant as a party as there was no privity of contract exists between the respondent nos. 1 & 2 and the appellant. A Consumer Forum is primarily meant for disposal of a complaint in a summary way for a limited purpose. When there was an agreement, the parties must follow the terms and conditions of the agreement. Since there was an agreement between respondent nos. 1 & 2 on the one hand and respondent nos. 3 & 4 on the other hand and in spite of receipt of bulk consideration amount when the respondent nos. 3 & 4 did not execute the Sale Deed in favour of respondent nos. 1 & 2, they had no other option but to approach the Ld. District Forum for redressal of their grievances.

The fact remains that the agreement for sale stands in the name of respondent nos. 1 & 2 is much earlier than the agreement for sale executed in favour of Tushar Kanti Ghosh through which the appellant claim her rights. At the time of agreement for sale by respondent nos. 3 & 4 in favour of respondent nos. 1 & 2, the agreement for sale was not compulsorily registered but at the time of execution of agreement for sale dated 12.10.2001 in favour of Tushar Kanti Ghosh it was compulsorily registrarable. In this regard, it would be pertinent to reproduce the amended provisions of Section 17 (1A) of the Indian Registration Act which came into force on 24.09.2001-

(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after commencement of the Registration and Other Related Laws (Amendment) Act, 2001 (48 of 2001) and if such documents are not registered on or after such commencement, then, they shall have no effect for the purpose of said Section 53A.

Therefore, relying upon the above provision, it can be very well be said that the agreement for sale dated 12.10.2001 purported to have been executed by the respondent nos. 3 & 4 in favour of one Shri Tushar Kanti Ghosh on the basis of which Money Suit no. 29 of 2006 has been instituted before the Ld. City Civil Judge (Senior Division) at Alipore is an impounded document under Section 35 of the Indian Stamp Act.

The fact remains that on the basis of order passed in Execution Case no. EA/219/2014 a Sale Deed has already been executed and registered through the machinery of Ld. District Forum. As per the legal protocol, the person who has first entered into an agreement will have the right over the property and the subsequent agreement will have no value unless and until the first agreement is cancelled with due process of law.

Therefore, after giving due consideration to the submissions made by the Ld. Advocate appearing for the parties and on perusal of materials on record, I have no hesitation to hold that the appal being devoid of merits is liable to be dismissed.

Consequently, the appeal is dismissed on contest. However, there will be no order as to costs.

The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Alipore (presently at Baruipur) for information.