1. Heard Mr. Vishal Gera, Advocate, for the petitioners. 2. Above revision has been filed against the order of West Bengal State Consumer Disputes Redressal Commission, Kolkata, dated 31.05.2023, passed in First Appeal No.A-283 of 2022 (arising from the order of District Consumer Disputes Redressal Commission, South 24 Paraganas, dated 10.08.2022 (corrected on 02.09.2022) passed in CC/2/2022), whereby District Commission has allowed the complaint with cost of Rs.30000/- and directed the petitioners to start and complete the construction work as per Development Agreement dated 22.11.2018, pay charges of alternate accommodation @Rs.6000/- per month from March, 2019 till handing over possession of reconstructed units and Rs.300000/- as compensation for mental agony with default clause and State Commission has dismissed the appeal. 3. Smt. Namita Chakraborty, Sudipta Chakraborty and Prasanta Chankraborty (the respondents) filed CC/2/2022 for directing the petitioners to pay (i) alternate accommodation charge @Rs.6000/- per month from March, 2019 till December, 2021; (ii) Rs.500000/- with interest @12% per annum, from March, 2019 till December, 2021; (iii) Rs.1000000/-, as compensation for mental agony and harassment; (iv) compensation for loss of rent @Rs.14000/- per month; (v) to start construction work as per Development Agreement dated 22.11.2018, complete it as per sanctioned layout plan and handover possession of it; (vi) Rs.50000/- as the litigation costs; and (vii) any other relief, which is deemed fit and proper in the fact of the case. The complainants stated that they were owner of the structure situated at J.L. No.35, Mouza Kodalia, Survey No.146, Tuzi No.120, R.S. Dag No.382, corresponding to L.R. Dag No. 471, under R.S. Khatian-347 and L.R. Khatian No.7313, 7316 and 7352, being portion of holding No.325, presently within the limit of Ward No.20, Rajpur Sonarpur Municipality, P.S. Sonarpur, district South 24 Parganas. The opposite parties were doing business of development and construction of the multi-storied buildings. The complainants entered into a registered Development Agreement for Construction with Power of Attorney dated 22.11.2018, with the opposite parties for demolition of their old structure and construction of multi-storied building on it. The opposite parties paid Rs.150000/- on 15.10.2018 and Rs.699999/- on 22.11.2018. As per development agreement, the complainants had to vacate the premises within 21 days, from the date of intimation after sanction of layout plan and the opposite parties had to complete construction within 36 months, with grace period of six months, thereafter. As per intimation of the opposite parties, the complainants vacated the premises in beginning of March, 2019. The opposite parties demolished old structure and sold salvage but they did not start new construction, although 32 months have expired. The opposite parties had to pay Rs.500000/- as ‘non-refundable money’ and rent @Rs.6000/- per month for alternate accommodation, on the date of handing over vacant possession, as per development agreement, which were not paid. In spite of repeated request, the opposite parties were not paying any heed to fulfil their obligation under development agreement. The complainants were paying rent of rented accommodation and suffering loss of rent from new building. The complainants gave a legal notice dated 30.11.2021 to the opposite parties. In spite of service of the notice, they did not reply. On these allegations, the complaint was filed on 03.01.2022. 4. The notices of the complaint were served upon the petitioners on 24.02.2022 but they did not appear. District Commission, vide order dated 16.03.2022, proceeded ex-parte against the petitioners. The complainants filed Affidavit of Evidence of Prasanta Chakraborty on 20.04.2022 and documentary evidence. 5. District Commission, by judgment dated 10.08.2022 (corrected on 02.09.2022), allowed the complaint directed as mentioned above. The petitioners filed First Appeal No.A-283 of 2022, from the order of District Commission, with an application for condonation of delay of 53 days in filing the appeal. State Commission, by its judgment dated 31.05.2023, found that in delay condonation application, no explanation of delay has been mentioned and delay condonation application was rejected and the appeal was dismissed as time barred. Hence this revision has been filed. 6. The counsel for the petitioners submitted that the address of the petitioners had been changed to 33/1, N.S. Road, Marshal House, 5th Floor, Room No.557, Kolkata-700006, due to matrimonial dispute between the Pankaj Gupta and his wife. Due to which, the petitioners never came to know about legal notice issued by the complainant and the notice issued in the complaint or its pendency. The complainants sent copy of the judgment dated 10.08.2022 (as corrected on 02.09.2022) passed in CC/2/2022 on 21.09.2022. Then for the first time, petitioner-2 came to know about the order of District Commission. The petitioner then found out an advocate for his consultation, who after examining the order, advised to collect the papers for filing the appeal. The petitioners then collected papers, arranged for statutory deposits and filed the appeal on 16.11.2022. There was only 11 days delay in filing the appeal, from the date of knowledge of exp-parte judgment. The delay was caused as the petitioners did not have any papers and had to find an advocate for collecting papers, for filing appeal and arranging for statutory deposits. The appellate commission would have condoned the delay and decide the appeal on merit. But the appellate commission has failed to exercise its discretion under the law. The complaint was pre-mature as the period of 36 months + 6 months had not expired on 03.01.2022. The complaint ought to have been dismissed as pre-mature. The orders of the fora below are illegal and liable to be set aside. He relied upon judgment of Supreme Court in S. Ganesharaju Vs.Narasamma, (2013) 11 SCC 341, in which, it has been held that the term “sufficient cause” has to be given liberal construction so as to advance substantial justice. 7. I have considered the arguments of the counsel for the petitioners and examined the record. I propose to examine the merit of the case and also heard arguments in this respect. Under Clause-9(ii), of Article-I of the registered Development Agreement for Construction with Power of Attorney dated 22.11.2018, the developer had to pay Rs.15/- lacs as “non-refundable advance”, out of which, Rs.5/- lacs was payable on sanction of layout plan. Under same clause, the developer had to provide alternate accommodation to the owners @Rs.6000/- per month till handing over possession of the owner’s allocations in new construction. Clause-2 under the heading “Miscellaneous-Characteristics” of the development agreement provides that the owner will vacate the said premises within 21 days from the date of intimation of getting the plan sanctioned from Rajpur Sonarpur Municipality, which may be made verbally/writing. Clause-2(b) under the heading “Articles- Procedure” and “Building-Criteria” of the development agreement provides that the developer/second party shall construct the entire building within 36 months from the date of sanction plan and if the developer could not complete the building after giving his all efforts even within the grace period of 6 months, in that event owner and developer will mutually decide the time to be taken by the developer to complete the project. 8. Development Agreement for Construction with Power of Attorney was executed on 22.11.2018. The complainants have stated that on intimation of the petitioners, they had vacated old premises in beginning of March, 2019. The petitioners have not disclosed the date of sanction of building plan. Cause of action for Rs.5/- lacs as “non-refundable advance” and rent for alternate accommodation arose in March, 2019. From March, 2019, 36 months period expired in February, 2022. The complainants have stated that till filing of the complainant, the petitioners had not started construction of new building although old structure was demolished and its salvage had been sold by the petitioners in March, 2019. In the facts of the case, the complaint cannot be said as pre-mature. In any case, on the date of order dated judgment dated 10.08.2022 (as corrected on 02.09.2022), 36 months period and 6 months grace period both have expired. As such direction of District Commission to fulfil the obligation under the development agreement dated 22.11.2018, does not suffer from any illegality. The orders of Fora below do not call for any interference by this Commission, in exercise of revisional jurisdiction. O R D E R In view of the aforesaid discussion, the revision petition has no merit and is dismissed. |
