Judgement on : Thursday, the 26th day of May, 2016.

HON’BLE MR. SAMARESH PRASAD CHOWDHURY,PRESIDING MEMBER

Judgement

        The instant appeal u/s. 15 of the Consumer Protection Act, 1986 (hereinafter referred to  as “ the Act “ ) is at the behest of the Complainant to impeach the judgement dated 08.01.2015 passed by the Ld. District Consumer Disputes Redressal Forum, South 24-Parganas at Alipore (  for short, Ld. District Forum ) in consumer complaint no. 452 /2014. The Appeal No. 294/2015 has been filed at the instance of Opposite Parties also to challenge the said judgement. Since both the appeals have arisen out from a common judgement, both the appeals will be governed by this order.

        The Appellant being Complainant lodged the complaint alleging that on 01.09.2009 he has entered into an agreement with the Respondent/developer to purchase a piece of land measuring about 2160 sq. ft. with all other common facilities in the master plan of Bidyut Nagar lying and situated at  Plot No. 1643, Khatian No. 2867 under Mouza Jaykrishnapurchiary under P. S. Sonarpur within district South 24-Parganas at a total consideration of Rs.1,53,000/- including development cost. In the agreement it was stipulated that within 3/5 years from the date of execution of agreement for sale the developer will hand over the possession and  execute the Deed of Conveyance on payment of  entire consideration amount. The Complainant has alleged that he has paid the entire consideration amount and an excess amount of Rs. 5010/- beyond the agreed consideration and also paid Rs.15,300/- as registration fees  on 05.05.2010 but till date delivery of possession and registration has not been done. In this regard, the requests and reminders and even legal notice dated 07.09.2014 could not alter the situation. Hence, the complaint on the allegation of deficiency in services on the part of the developer for non-fulfilment of their obligations.

        The Opposite Party Nos. 1 to 3  i.e. Developer, its Managing  Director and Authorised person of the Developer respectively did not contest. The O. P. No. 1 /Developer appeared but failed to submit written version within the stipulated period as prescribed in Section 13 (2)(a) of the Act and as such the case was heard and decided exparte.

        The Ld. District Forum after assessing the materials on record allowed the consumer complaint exparte against the Opposite Parties with a cost of Rs.4000/- with direction to execute and  register Deed of Conveyance and to deliver possession in respect of the property within one month from the date, to deposit Rs. 20,000/- to the State Consumer Welfare Fund as penalty, to pay compensation of Rs. 50,000/-.

        The Complainant has filed FA/108/2015 on the ground that the amount of Rs. 5010/- paid by the Complainant in excess to the consideration amount and the amount of Rs. 15300/- received by the Developer as registration fees totalling Rs.20,310/- has not been ordered by the Ld. District Forum.

        The Opposite Parties have preferred FA/294/2015 on the ground that  they should have given time to file written version in order to contest the case and in this regard the provision of Section 13(2)(a) of the Act  is not  mandatory but a directory one.

         We have scrutinised the materials on  record and considered the submission advanced by the Ld. Advocates appearing for the parties.

        Admittedly, 01.09.2009 an agreement for sale was entered into by and between the parties and as per terms of the agreement the Opposite Parties / Developers agreed to sale a piece of land  of 2160 sq. ft. with all other common facilities under Plot No. 1643, Khatian No,2867 under Mouza Joykrishnapurchiary, P. S. Sonarpur, District South 24-Parganas at a consideration of Rs. 91,800/- and Rs. 61,200/- towards the development cost of the said land totalling Rs. 1,53,000/-. It was agreed that the Complainant / Purchaser will make payment of Rs.2975/- p. m. in 36 equal instalments. In the agreement it was stipulated that within 3/5 years from the date of execution of the agreement, the developer will hand over  the vacant peaceful possession and execute the deed in favour of the purchaser subject to payment of entire amount. It is also not in dispute that the Complainant has paid not only the entire consideration amount and development charges but paid an excess amount of Rs.5010/-. The receipt dated 05.05.2010 indicates that the Complainant /purchaser has not only paid excess amount of Rs.5010/- but also paid Rs.15,300/- for the purpose of registration charges in accordance with Clause (8 ) of the terms of agreement. Surprisingly enough the letters and requests and even the legal notice dated 07.09.2014 issued by the Complainant / Purchaser remain unattended. This clearly shows deficiency in service on the part of the Opposite Parties / Developer to fulfil their part of obligations.

        The Ld. District Forum did not pass any order to that effect and simply directed the Opposite Parties to execute and register the deed but when the Complainant/Purchaser has paid an excess amount of Rs.5010/-and further paid Rs. 15,300/- towards registration charges without any hesitation it can be said that the Complainant being Appellant in FA/108 of 2015 is entitled to the same.

        Mr. Chandrasekhar Mukherjee, Ld. Advocate appearing for the developers drawing our attention to the orders passed by the Ld. District Forum has submitted that the Ld. District Forum hurriedly passed the order without giving them any opportunity to contest the case. The order sheet reveals that after entering appearance on  20.10.2014 the Opposite Parties took time and on the following date i.e. on 21.11.2014 filed an application challenging the maintainability of the proceeding and the said application was rejected on contest by Order No. 7 dated 23.12.2014. The Ld. District Forum noticed that statutory period for filing of written version was over and as such the case was slated for exparte evidence on 06.01.2015. Astonishing to note,  on the following day i.e. on 06.01.2015 the Opposite Party by filing a petition prayed for setting aside the order of exparte hearing  and to give them an opportunity to file written version. Needless to say, under the scheme of the Act, a District Forum has got no authority to review its own order. Even the Opposite Parties did not take any pain to file written version on that date. Ultimately, the case was heard and decided exparte.

        The Ld. Advocate for the appellant has submitted that the provisions of Section 13(2)(a) of the Act is not mandatory in nature and as such the Ld. District Forum had opportunity to give the Opposite Parties to file written version. To fortify his contention, Ld. Advocate for the Respondent has placed reliance to a decision of Three Judges Bench of Hon’ble Supreme Court of India reported in (2016) 1 Supreme 319  (New India Assurance Co. Ltd. – vs. – Hilli Multipurpose Cold Storage Pvt. Ltd. ). The referred decision does not come to any help  of the Opposite Parties because such an observation was made by the Apex Court in Top Line Shoes Ltd. – vs. – Corporation Bank reported in ( 2002) 6 SCC 33. But in paragraph Nos. 16 and 17 of the referred decision the Hon’ble Apex Court has observed –

“ 16. Upon hearing the concerned counsel and upon perusal of both the judgements referred to hereinabove, which pertain to extension of time for the purpose of filing written statement, we are of the opinion that the view expressed by the three – Judge Bench of this Court in Dr. J.J. Merchant ( supra ) should prevail”.

17. In the case of Dr. J.J. Merchant (supra), which is on the same subject, this Court observed as under :

“13. The National Commission or the State Commission is empowered to follow the said procedure. From the aforesaid section it is apparent that on receipt of the complaint, the opposite party is required to be given notice directing him to give his version of the case within a period of 30 days or such extended period not exceeding 15 days as may be granted by the District Forum or the Commission. For having speedy trial, this legislative mandate of not giving more than 45 days in submitting the written statement or the version of the case is required to be adhered to. If this is not adhered to, the legislative mandate of disposing of the cases within three or five months would be defeated “.

        The Hon’ble Apex Court, thereafter, proceeded to observe that the law laid down in Dr. J. J. Merchant’s case should prevail. In that perspective, the Opposite Parties were under obligation to file written version within  45 days positively and as they did not adhere to the mandate of the legislature coupled with the observation of the Highest Court of the land, the Ld. District Forum has rightly heard and decided the case exparte. The Opposite Parties adopted dilly – delaying tactics and as such filed an application challenging the maintainability in spite of having notice and knowledge that over the same issue they preferred a revision petition before this Commission and the same was dismissed by order dated 28.11.2014 in RP/52/2014 and   as such we have no mercy or pity for the Opposite Parties. The law may be harsh but it is the law and unless it is followed, a person cannot expect any relief from any judicial or quasi – judicial authority.

        Therefore, after giving due consideration to the submission advanced on the behalf of the parties we have no hesitation to hold that the FA NO. 108/2015 should be allowed in part and modified to the extent that the Complainant of the case would get Rs.20,310/- from the Respondents/Developer.  However, the FA No. 294/2015 being devoid of merit should be dismissed and we do so.

        Consequently, the FA No. 108/2015 is allowed  on contest in part with a modification of the order to the extent that in addition to the order passed by the Ld. District Forum the Appellant/Complainant would get Rs. 20310/- from the Respondents/Developer. The amount must be paid within  30 days otherwise it shall carry interest @9% p.a. from date till its full realisation.

        The FA No. 294/2014 stands dismissed on contest. Considering the facts and circumstances of the case, however, we do not make any order as to costs in these appeals.