No. 5/23.10.2009.

HON’BLE JUSTICE SRI A. CHAKRABARTI, PRESIDENT.

Appellant in person and Respondent through Mollah Asraful Jamal, the Ld. Advocate are present.  Heard.  The impugned order has been challenged on a contention that Forum should have considered the addition of vendor as a party and in such case the vendor could have produced the agreement between the vendor and the developers.  A prayer has been made for remand on the aforesaid ground.  We have considered the materials on record and the impugned order.  The impugned order shows that the complaint has been dismissed on the ground that the Complainant could not show any paper that the O.P., Phalguni Das is the constituted attorney of the vendor under the clauses mentioned in the agreement.  At the time of argument also the Appellant admitted the said position stating that he does not posses any copy of the said agreement but the developers should produce the same for deciding the matter on merit.  As we are convinced that it is for the Complainant to prove his case and the O.P. cannot be compelled to produce document to prove the case of the Complainant, we do not find any ground to interfere with the findings of the Forum below.

The Appellant advances an alternative argument that even if the purchase of the flat cannot be directed the payment made by him for purchase of the flat under his agreement with the O.P. should be refunded.  The Appellant is unable to show that in the complaint the said aspect has been highlighted.   No prayer has been made towards the same. 

Therefore, we are of the opinion that in present appeal there is no ground for interference with the impugned judgement and the appeal is liable to be dismissed.  But we are of the opinion as regards the claim of the Appellant for refund of the amount and for other relief this proceeding does not covered the said aspects and our decision does not decide such claims of the Appellant.  Accordingly the Appellant is at liberty to initiate any appropriate proceeding in accordance with law for making such claim if so advised and this judgement will not govern the same in any manner.  The appeal is dismissed with the above observation.