HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. These are cross appeals against the impugned order dated 10.02.2021 of the District Consumer Disputes Redressal Commission, Kolkata, Unit – I ( in short, ‘the District Commission’) passed in connection with consumer complaint case No. CC/45/2021.

2. Sri Arpan Kumar Dey was the complainant before the District Commission. He was the absolute owner of 1/3^rd portion of southern part of the premises being No. 16, Mohun Bagan Lane with land and structure measuring about 1 katha, 6 chittaks and 10 sq. ft. by virtue of a probate case being No. 33 of 2010. Thereafter, he mutated his name in the Kolkata Municipal Corporation vide assessment No. 11-011-10-00815. One Bimala Bala Datta, opposite party No. 9, became an absolute owner by way of purchase of 2/3^rd share of the said premises No. 16, Mohun Bagan Lane, Kolkata – 700 004 being the demarcated northern portion, land and structure measuring 2 kathas, 25 sq. ft. having assessee No. 11-011-10-00177 under Kolkata Municipal Corporation vide sale deed No. 06623 for the year 2013. Thereafter, said Arpan Kumar Dey and Bimala Bala Datta amalgamated their respective share by donation of portion in favour of Bimala Bala Datta and vice versa by executing deeds of gift and both the deeds of gift were registered at the Office of the Addl. Registrar of Assurance - II, Kolkata in the year, 2014 and after amalgamation the Assessee No. is 11-011-10-00177. After amalgamation, the complainant Arpan Kumar Dey and Bimala Bala Datta entered into a development agreement with M/s J.N.D Construction and their partners for the purpose of construction of a multi storied building and executed a registered general power of attorney in favour of M/s. J.N.D. Construction. Initially, the developer would construct a three-storied building as per the development agreement. The 50% of floor area are allotted for Arpan Kumar Dey and 50% for the developer and complainant Arpan Kumar Dey would pay 50% cost for the construction of the building.

3. On 16.02.2016 M/s. J.N.D. Construction entered into a supplementary agreement to the effect that if the Kolkata Municipal Corporation allows M/s. J.N.D. Construction to raise further floor i.e. above 3-storied building, sanctioned floor area will be divided between Arpan Kr. Dey on the southern side according to supplementary building plan.

4.  Thereafter, M/s. J.N.D. Construction submitted a building plan for 5-storied building and the Kolkata Municipal Corporation sanctioned the said supplementary plan vide building permit No. 2017020024. Further condition that the 50% of the cost for construction according to additional sanction plan will be borne by the owner. It was further agreed that M/s. J.N.D. Construction made a refundable money of Rs.4,00,000/- to Arpan Kumar Dey which shall be adjusted or refunded only till or hand over the possession of the additional sanctioned plan.

5. After completion of construction of the above 3^rd floor M/s. J.N.D. Construction refused to hand over 50% of the newly constructed 3^rd floor.   Hence, Arpan Kumar Dey has filed a case before the Learned District Commission.

6. The case was contested by M/s. J.N.D. Construction and others by filing written version denying all the material averments of the petition of complaint as made by the complainant against them. The specific case of M/s. J.N.D. Construction is that Arpan Kumar Dey has no cause of action to file this case and is liable to be dismissed.

7. Both Arpan Kumar Dey and M/s. J.N.D. Construction filed evidence on affidavit, questionnaire and its reply thereto. Brief notes of arguments were also filed by both Arpan Kumar Dey and M/s. J.N.D. Construction and its partners the Learned District Commission below considered the evidence filed by the parties and heard the arguments of the parties.

8.  The Learned District Commission below was pleased to allow the case on contest against M/s. J.N.D. Construction, Navin Kr. Gupta, Jayanta Routh, Dilip  Sharma on contest and ex parte against Mrs. Sujata Saha Kangsabanik, Sri Narayan Chandra Pradhan, Mrs. Mina Ojha, Mrs. Sanchita Ghosh (Ojha) and Bimala Bala Datta.

9. The Learned District Commission directed the opposite party Nos. 1 to 4 to hand over the copy of occupancy certificate, completion certificate after procuring from KMC, copy of general power of attorney executed on 15.02.2016 and complainant has right to peruse the original documents as mentioned above if required within seven days.

10. The Learned District Commission further directed the opposite party Nos. 1 to 4 to pay jointly and severally compensation for non-completion of building within stipulated time and non delivery of possession as per development agreement @ Rs.2,00,000/- (Rupees Two Lakh only) in favour of the complainant within 1 (One) month from the date of this order.

11. The Learned District Commission further directed the opposite party Nos. 1 to 4 to pay jointly and severally compensation of Rs.30,000/- (Rupees Thirty Thousand only) for mental pain and agony and litigation cost of Rs.25,000/- (Rupees Twenty Five Thousand only) in favour of the complainant within 1 (one) month from the date of this order.

12. Being aggrieved by and dissatisfied with the order passed by the Learned District Commission dated 10.02.2021 both Arpan Kumar Dey and M/s. J.N.D Construction, Sri Navin Kr. Gupta and Mr. Jayanta Routh and Mr. Dilip Sharma have filed two separate appeals being Nos. F.A./190/2022 and F.A./213/2022 respectively.

13. The Learned Advocate appearing for Mr. Arpan Kumar Dey has urged that the Learned District Commission below wrongly incorporated the portion of the facts which are not relating to the facts and circumstances of the complaint case and relevant paragraphs (page No. 4 of the impugned judgment) are not at all the facts of the complaint case and, as such, the facts incorporated in the judgment are beyond the facts of the complaint case which is liable to be deleted from the impugned order.

14. He has further urged that Learned Commission below has erred to come to the proper findings in accordance with the provisions of the Consumer Protection Act, 2019 in favour of the complainant.

15. The Learned Advocate appearing for M/s. J.N.D. Construction, Mr. Navin Kr. Gupta, Mr. Jayanata Routh and Mr. Dilip Sharma has conceded the submission as made by the Learned Advocate appearing for Mr. Arpan Kumar Dey.

16. Having heard the Learned Advocate appearing for the parties and after careful perusal of the impugned judgment it is found that there are substance in the submission as made by the Learned Advocate appearing for Mr. Arpan Kumar Dey.  The Learned District Commission below wrongly incorporated the portion of the facts which are not at all relating to the facts and circumstances of the complaint case and the relevant paragraphs in page No. 4 of the impugned order are not the case of the complainant, Mr. Arpan Kumar Dey at all. The said facts have been incorporated by the Learned District Commission below in the impugned order beyond the facts of the complaint case.

17. In such a situation, it may be concluded that the Learned District Commission below has committed material irregularity in passing the impugned judgment.

18. In the result, I hold that the impugned order should be set aside.

19. In the result, I am of the considered view that this is a fit case where the matter should be remanded to the Learned District Commission below to decide the case afresh. Accordingly, the impugned order is set aside and the matter is remanded back to the Learned District Commission below to decide the matter afresh after giving the complainant opportunity of hearing the case afresh.

20. The Learned District Commission is directed to dispose of the complaint case according to law but preferably within a period of six months from the date of the order.

21. Parties are directed to appear before the Learned District Commission on 28.03.2024 for receiving further direction.

22. In the given circumstances, both the parties to bear their own costs.

23. In view of the above, the appeal being No. A/190/2022 filed by Mr. Arpan Kumar Dey stands allowed and the appeal being No. A/213/2022 filed by M/s. J.N.D. Construction and others stands allowed in the above terms.

24. Let a copy of this order be sent down to the Learned District Commission below at once for information.