This appeal is directed against the Final Order delivered by Ld. D.C.D.R.F., Malda dated 09.12.2020 in DFC No 67 of 2016. The fact of the case in nutshell is that one Sangita Misra a widow of English Bazar P.S registered a Consumer Complaint to the effect that to construct a building at her own land through promoter for which the promoting company M/S Kiran Enterprise through its one of the partners of the said firm Pratip Kumar Jha (O.P No. 2) approached to the Complainant and gave a proposal to the Complainant for construction of permanent building on her plot and the said proposal was agreed upon by the Complainant Sangita Misra and entered into an agreement of promoting dated 17.01.2011. An article of agreement for development was prepared by O.P No. 2 and signed in agreement as witness and as per agreement the Complainant was supposed to receive sum of Rs. 46,44,344/- from the promoter building firm and to get the entire first floor, one flat on the third floor and one shop room and one garage in the said proposed premises and in this regard a general power of attorney was executed by the Complainant on 28.04.2011 by which M/S Kiran Enterprise was empowered to complete the construction and to sale out the flats to other purchasers and it was agreed upon that the construction work would be completed within 24 months. But the promoter firm could not complete the process of construction work within the stipulated period. The Complainant has not got the completion certificate of her flat, shop room and garage and the entire first floor and other connected work was not completed by the firm and for that reason due to deficiency of service on the part of the constructing firm and its partners the instant case was registered against the firm M/S Kiran Enterprise as O.P No. 1 and its partners that is Chandranath Jha, Ramanath Jha, Laxmi Jha and Pratip Kumar Jha. The said Consumer Complaint was admitted in due process and notice was sent to the address of the Opposite Parties whereas the Opposite Party No. 1 M/S Kiran Enterprise Opposite Party No. 1(a) Chandranath Jha, O.P No. 1(a)(c) Laxmi Jha, O.P No. 2 Pratip Kumar Jha have refused the notice of Consumer Complaint only O.P No. 1(b) Ramanath Jha received the copy of Consumer Complaint and he filed the Written Version and contested the case. In respect of the rest O.Ps was heard Ex-parte. Ramanath Jha filed the W.V denied all the material allegations levelled against the construction firm and its partners and contended inter-alia that the case of the Complainant was false, frivolous, motivated and nothing but a manufactured story and such Consumer Complaint was liable to be dismissed. Ld. Forum after recording evidence of Complainant and the contesting O.P No. 1(b) has adjudicated the dispute by delivering the impugned judgement and the Consumer Complaint was allowed on contest against the O.P No. 1 M/S Kiran Enterprise represented through its one of the partners Ramanath Jha and Ex-parte against Chandranath Jha and Laxmi Jha and the case against O.P No. 2 was dismissed. Ld. Forum has observed that the Complainant has proved her case beyond any doubt and she was entitled to get the relief as sought for and accordingly the O.P No. 1 through its partners were directed to complete the floor work of entire first floor along with other connected works within three months and allowed an award for compensation to the tune of Rs. 1 Lakh for mental pain and agony Rs. 15,000/- as litigation cost and also awarded Rs. 1,50,000/- as compensation for not getting to utilize about 4,000 sq. ft on the first floor for nearly about seven years. The O.P No: 1(a) and O.P No. 1(c) against whom Ex-parte order was passed has preferred this appeal on the ground that the finding of the observation of the Ld. Forum in the Judgement was full of error, misconception of fact etc. The positive case of the appellant is that since last six years there was no existence of M/S Kiran Enterprise and the said partnership firm had been dissolved among these partners which became a strange relation in between the appellants and respondent No. 3 Pratip Kumar Jha. The respondent No. 1 who happens to be the original Consumer Complainant Sangita Misra in collusion with respondent No. 3 Pratip Kumar Jha have instituted the instant Consumer Complaint case without serving any notice to the proper address of the appellants in the Consumer Case and for that reason the appellants could not get any opportunity to know about the case. On 23.12.2020 they came to know from some well wishers that the instant Consumer Complaint was disposed of in favour of the Complainant and then they collected the certified copy and came to this Commission with this appeal with a prayer for set aside the Final Order of the Ld. Forum and to get an opportunity to contest the instant Consumer Case. The appeal was registered on 08.01.2021 and it was admitted on 20.01.2021 and notice was issued against the respondent Sangita Misra, Ramanath Jha and Pratip Kumar Jha. The notice was sent to the address of the respondents and the Postal Track Consignment Report shows that they have received the notice of appeal on 25.01.2021, 29.01.2021 and 12.04.2021. In spite of receiving the notice the respondents never came to contest the case. Several opportunities were provided to the respondents to contest the appeal but they neve intended to contest the appeal. So, the appeal was heard against the respondents Ex-parte. Ld. Advocate Mr. D. Banerjee conducted the hearing of the appeal on behalf of the appellants.

Decision with reasons

Having heard the Ld. Advocate of the appellant it appears that the instant Consumer Complaint bearing No 67 of 2016 was disposed of Ex-parte against the appellants on 09.12.2020 before the Ld. D.C.D.R.F., Malda. The Postal acknowledgement report in the said DFC Case shows that the Postal Authority has remarked that the appellants intentionally refused to accept the notice. So, the case was run Ex-parte against the appellants Chandranath Jha and Laxmi Jha in that case. The notice against Pratip Kumar Jha who happened to be the O.P No. 2 of the DFC Case was out of India and notice could not be served upon him. According to the, case of the Complainant the entire matter for promoting the land of the Complainant and to construct the building etc was initiated at the instance of said O.P No. 2 Pratip Kumar Jha who entered into an agreement with the Complainant and by virtue of such agreement the M/S Kiran Enterprise was entrusted to promote the land of the Complainant and to construct a building thereon. The article of development of agreement was executed by the partners of M/S Kiran Enterprise. Now, the appellants contends that for the last six years M/S Kiran Enterprise has no existence and the said partnership firm was dissolved at the instance of partners for internal quarrel but O.P No. 2 that is respondent No. 3 of this appeal Pratip Kumar Jha in collaboration with the Complainant has registered the instant Consumer Complaint only to make some money and to make harassment of the appellants who was not aware about the existence of the said Consumer Case and keeping them in dark they have procured an award from the Ld. Forum which was bad in law and not tenable one. After, going through the entire order sheets of the case DFC Case No 67 of 2016 it appears that notice against the O.P No. 1(a) and 1(c) that is the appellants was returned unserved with Postal Endorsement refused. Sometimes we know the Postal Authority do not perform their obligations in proper manner and the Postal peons by the influence or otherwise intentionally returned back summons and notices by putting the endorsement refusal. In a Consumer Case both parties should be given sufficient opportunity to go on with their respective cases before the adjudicating authority so that purposeful order can be delivered. But here in this case the appellants raised allegations that in collusion with the Postal Authority the Complainant and respondent No. 3 in collusion obtained a decree Ex-parte against the appellants and the opportunity of natural justice of the appellants was withheld as they were unheard. After, hearing the Ld. Advocate of the appellant the Commission thinks it fit to give opportunity to the appellants to contest the case so that they may bring their case before the Ld. Forum in a proper way so that the Ld. Forum may adjudicate the dispute in a sound manner. So, the appeal should be allowed otherwise the doctrine of natural justice could not be upheld.

Hence, it’s ordered

That the appeal be and the same is allowed on merit without any cost. The Judgement and Final Order delivered dated 09.12.2020 in DFC No 67 of 2017 of Ld. D.C.D.R.F., Malda in respect of O.P No. 1(a) and 1(c) that is the appellants of this appeal case should be set aside. In respect of O.P No. 1 and O.P No. 1(b) the Judgement/Final Order of Ld. Forum should be intact.

The appellants that is the O.P No. 1(a) and 1(c) of instant Consumer Complaint Case are permitted to contest the Consumer dispute by filing the W.V within 45 days from this day and if, they file the said W.V within 45 days the Ld. Forum shall accept the same and give sufficient opportunity to both sides to adduce further evidence or fresh evidence and to adjudicate the dispute in presence of both sides.

Let a copy of this order be supplied to the parties free of cost and the same to be communicated to the Ld. D.C.D.R.F., Malda for doing the needful.