BEFORE:

HON’BLE MR. SUBHASH CHANDRA, PRESIDING MEMBER

HON’BLE DR. SADHNA SHANKER, MEMBER

For the Appellant                Mr Vikash Nautiyal Advocate for Mr Srijan

                                       Nayar, Advocate  

For the Respondents           Mr Sanjoy Kumar Ghosh and Ms Rupali S

                                       Ghosh, Advocates for R 1

                                       Ex parte on 08.12.2023 for R 2, 3 and 5

                                       Ex parte on 08.08.2018 for R 4

ORDER

PER SUBHASH CHANDRA

1.      This appeal under Section 19 the Consumer Protection Act, 1986 (in short, the “Act”) challenges order dated 31.10.2017 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata in Consumer Complaint no. 200 of 2016 allowing the complaint.

2.     We have heard the learned counsel for the parties and perused the records.

3.     The relevant facts of the case, in brief, are that Appellant’s partnership firm, Happy Regency, had entered into an unregistered Agreement for Sale (“Agreement”) with the Respondent on 31.08.2011 to construct and hand over Flat No. 4C, 70, Deshpran Sasmal Road, Municipal Ward No. 24, Howrah, Kolkata admeasuring 1175 sq ft for a sale consideration of Rs 20,00,000/-. Possession was assured within January, 2012. The Agreement recorded that as per Development Agreement dated 02.12.2008, the owners (respondents 2,3 and 4 herein) had necessary rights over the land in question and a General Power of Attorney (GPA) was executed on 05.12.2008 in favour of Happy Regency followed by another GPA dated 07.08.2009 in favour of the Appellant, Sunit Das and Subhrojit Ghosh. Rs.19,00,000/- was paid through instalments by the Respondent 1 to the Appellant. However, possession as promised was not handed over by the Appellant. Respondent No. 1 therefore, filed Consumer Case No. 225 of 2013 before the District Forum, Howrah which was set aside vide order dated 10.07.2013 as not maintainable on grounds of pecuniary jurisdiction. Appeal No. 102 of 2014 before the State Commission was disposed of on 12.04.2016 with directions to file a complaint. Complaint No. 200 of 2016 was then filed by the Respondent No. 1 before the State Commission which allowed it ex parte and directed the Appellant herein to (a) hand over possession of the flat in question on receipt of the balance outstanding amount of Rs 1,00,000/- and to execute and register the Deed of Conveyance; (b) issue a Completion Certificate to enable mutation of name before the appropriate authority; and (c) pay Rs 10,000/- as litigation costs and Rs 10,000/- as compensation for harassment and agony within 60 days of the order. This order is impugned before us.

4.      Appellant contended that the impugned order was without notice to him and was flawed in not providing him the opportunity of presenting his case. It was also contended that the order was liable to be set aside as it did not set out any reasons for the findings and was contrary to Order XX Rule 5 as held in M/s Meenakshisundaram Textiles Vs. M/s Valliammal Textiles Ltd., dated 07.03.2011, CMA 3700/2010 of the Hon’ble Madras High Court.

5.      Per contra, the contention of Respondent No. 1 is that the order of the State Commission was based on the Agreement dated 31.08.2011 under which Rs 19,00,000/- was received by the Appellant in various instalments towards the flat in question as per receipts on the record that were issued by the Appellant. The Appellant was duly served in the Consumer Complaint and had entered appearance as recorded by the State Commission vide its order dated 07.12.2016. Appellant was placed ex parte due to non-appearance on which date the other Respondents were permitted to be served through publication by way of substituted service. It had also failed to file any written version or evidence to counter the averments of the respondent and therefore the State Commission had rightly held the same as admitted and to have pronounced the impugned order.

6.      The short issue in the instant case is whether the impugned order was without notice to the Appellant and whether it was a speaking order.

7.      From the record it is manifest that the State Commission’s daily order sheet dated 07.12.2016 records the presence of the Appellant through a Counsel. Thus, it is apparent that the Appellant was represented and therefore his contention of not being served by way of notice is without basis and cannot be considered. As for the merits of the order, it is manifest that it clearly records the reason of facts being admitted in view of the same not being contested. Therefore, the contention that the order was not in accordance with Order XX Rule 5 does not sustain.

8.      The impugned order is based on the Agreement dated 31.08.2011 between the parties which is not denied by the Appellant. It is also not denied that the consideration of Rs 19,00,000/- as per evidence filed by the respondent No. 1 was not received. No reasons have been advanced to either deny or explain the delay in the handing over of the flat as per the Agreement. The contentions that the order was unjustified in view the Appellant not having been noticed or the impugned order not setting out reason for the findings and directions cannot be sustained in view of the discussion above. 

9.      In view of the foregoing, this first appeal dismissed as without merits and the order of the State Commission is confirmed.

 10.   Pending IAs, if any, stand disposed of with this order.