Date of filing – 17.12.2013
Date of Hearing – 12.05.2017
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of the Opposite Party No.1/developer to impeach the Judgement/Final Order dated 26.11.2013 passed by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Alipore (for short, Ld. District Forum) in Consumer Complaint no.278/2013 which was heard along with CC Nos.276, 277 and 279 of 2013. By the impugned Judgement/Final Order, the complaint lodged by the Respondent nos.1 & 1A/purchasers under Section 12 of the Act was allowed with a direction upon the Appellant to handover the completion certificate and to pay cost of Rs.5,000/-.
The Respondent nos.1 & 1A herein being Complainants initiated the complaint asserting that on 14.12.2011 the OP no.1 executed a Deed of Conveyance in favour of the complainants in respect of a self-contained flat being No.4B, on the 4th floor measuring about 550 sq. ft. together a car parking space measuring 120 sq. ft. on the ground floor at Premises No.2040, Nayabad, P.S.- Purba Jadavpur, Kolkata – 700099, Dist- South 24 Parganas within the local limits of Ward No.109 of Kolkata Municipal Corporation at a consideration of Rs.11,50,000/-. After purchase, the complainants took possession and have been enjoying the subject flat without any interruption from elsewhere including the right of user of roof but the OP no.1/developer did not handover the possession of car parking space on the ground floor. Moreover, the opposite party no.1 has failed to handover the completion certificate. Hence, the Respondent nos. 1 & 1A approached the Ld. District Forum with prayer for certain reliefs including a direction upon the OP no.1 to hand over the car parking space or alternatively to refund Rs.1,50,000/- with Rs.11,000/- for cost of registration for car parking space, handing over completion certificate etc.
The Appellant/developer being OP no.1 did not contest.
The Respondent no.2/landowner being OP no.2 by filing a written version has stated that the developer is bound to construct caretaker booth, to remove the deficiency in lift services and also to provide completion certificates etc.
After assessing the materials on record, the Ld. District Forum by the impugned Judgement/Final Order allowed the complaint in part on contest against OP no.2 and ex parte against OP no.1 with cost of Rs.5,000/- to be paid by the OP no.1 with certain directions as indicated above. Being dissatisfied with the impugned order, the OP no.1/developer has come up in this Commission with the present appeal.
During hearing, none appears for the Respondent nos. 1 & 1A or Respondent no.2. I have heard Mr. Sankar Mukhopadhyay, Ld. Advocate for the Appellant/developer and scrutinised the materials on record.
Having heard the Ld. Advocate for the Appellant and on going through the impugned Judgement, it reveals that the Ld. District Forum disposed of the complaint without appreciating any evidence. In other words, the Respondent nos. 1 & 1A being complainants did not file any evidence on affidavit in support of their case.
Ld. Advocate for the Appellant has submitted that the Ld. District Forum disposed of the complaint simply on pleadings without directing the parties to file evidence by way of affidavits and as such the impugned order is not sustainable in the eye of law. I have found force in the contention of the Ld. Advocate of Appellant. Section 13(2)(b)(i) of the Act provides –
“(2) The District Forum shall, if the complaint admitted by it under Section 12 relates to goods in respect of which the procedure specified in sub-Section (1) cannot be followed, or if the complaint relates to any services, -
- Refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum;
- where the opposite party, on receipt of a copy of the complaint, referred to him under clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dispute, -
- on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint, or
- ex-parte on the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case within the time given by the Forum”.
It is not in dispute that the Ld. District Forum before disposing of the complaint did not ask or direct the parties to file evidence on affidavit in support of their case. Therefore, in view of the decision reported in 2008 (1) CPR 1 (NC) (Mathura Mohan Mahato Mistry – vs. – Dr. Bindeshwar Jha & Anr.) and the provisions of Section 13(2)(a) and (b) of the Act, the Ld. District Forum has proceeded with the complaint wrongly without appreciating evidence of the parties and as such the impugned order is not sustainable in the eye of law. Consequently, the impugned Judgement/Final Order is liable to be set aside.
In view of the above, the appeal is allowed on contest. There will be no order as to costs.
The impugned Judgement/Final Order is hereby set aside.
The case is remitted back on remand with the direction upon the parties to appear before the Ld. District Forum on 08.06.2017 positively and on that date the Appellant/developer being OP no.1 must file written version and on filing of the same, the Ld. District Forum will proceed to dispose of the case in accordance with law after accepting the evidence to be led by the parties.
The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Alipore (now at Baruipur) for information.
