SAMIKSHA BHATTACHARYA, MEMBER

The instant appeal has been directed by the appellant / OPs against the final order / judgment dated 23.12.2019 passed by Learned DCDRC, Kolkata, Unit-III (South) in CC 153 of 2017.

The facts of the case in brief are that the respondent / complainant (hereinafter referred to as ‘Complainant’) filed a complaint case before the Learned District Commission, Kolkata, Unit-III against the OPs / appellants (hereinafter referred to as ‘OPs’) alleging deficiency in service. The complainant along with his family members used to reside in rented accommodation and to settle in a owned house to stay comfortably complainant was in search of a suitable accommodation within his financial limits.  By the end of 2012 the complainant came in contact with OP No. 2 who introduced himself to be a promoter and developer of real estate. OP No. 2 also represented himself that he was associated with his brother Sri Pradip Saha, the OP No. 1, who is the proprietor of a construction company namely Sushovon Construction. After such introduction the complainant along with his father met with the OPs at the office of the Sushovon Construction. The OPs offered the complainant to purchase a flat at their proposed site at Purba Putiary. The complainant along with his father visited the proposed site where the mentioned premises in the erstwhile structure in that premises has already been demolished and preparation of new construction was about to start at the site situated at the adjacent west plot of Bablu Kar’s house appertaining to khatian no. 763/779, R.S No. 275, Babu Para, Kolkata – 700 093 which happens to be the property of Sri Prem Shankar Bose and Priti Shankar Bose, both sons of Molina Bose. On further query of the complainant the OPs asserted that the said land had no persisting litigations and / or encumbrances in any manner. In February, 2013 the OPs informed the complainant that the construction is likely to be completed within a maximum period of 15 months.   The OPs asked for a token earnest amount as advance for booking of one flat measuring about 700 sq. ft. in the mentioned project for a total consideration of Rs.11,00,000/-. The complainant paid Rs.10,000/- on 3.3.2013 in cash, Rs. 1,25,000/- on 11.03.2013 through cheque being No. 275856, another amount of Rs.1,25,000/-, vide cheque No. 275857 dated 11.03.2013, Rs.2,50,000/- vide cheque No. 275854 on 13.03.2013 totalling an amount of Rs.5,10,000/- . The complainant stated in his petition that the said cheques were encashed in favour of OPs but the flat in question had not been completed within the agreed period of time. Complainant requested several times for delivery of possession of the said flat but the OPs only gave verbal assurance but that too had not been translated into reality. Ultimately the OPs agreed to refund Rs.2,00,000/- on or about last week of February, 2013 and refunded the same by two post dated cheques. But both the cheques were dishonoured on the ground of insufficient fund. OP No.1 submitted before Learned ACJM Alipore that he would hand over the possession of the flat within 60 days by swearing an affidavit on 24.07.2015 but it went into vain. Finding no other alternative complainant filed the complaint before the concerned District Commission praying for direction upon the OPs to deliver the possession of the flat or to refund Rs.5,10,000/- along with consequential relief as punitive damage since complainant has suffered irreparable loss for non delivery of the flat as committed by OPs 1 & 2.

Though the notice was served upon the OPs they did not turn up before the District Commission. So, the case was proceeded ex parte against the OPs.

The District Commission allowed the complaint case ex parte against the OPs. The OPs were directed to refund Rs.5,10,000/- along with interest  @ 10% p.a. from the date of last payment i.e. 11.03.2013 till realization within 3 months from the date of order. The OPs were further directed to pay Rs.50,000/ towards compensation and Rs.6,600/- towards litigation cost within the abovementioned period.

Being aggrieved by and dissatisfied with the aforesaid order the OPs filed the instant appeal. 

On the date of hearing only the appellants were present through their Learned Advocate. None appeared on behalf of the respondent / complainant. So, the appeal was heard           ex parte.

In course of argument Learned Counsel for the appellant has submitted before this Commission that there is no cause of action in the complaint case and the judgment was passed ex parte. In the four corners of the petition of complaint complainant has not stated any schedule of the flat which he was going to purchase from the OPs. Moreover, there was no agreement for sale. No oral or written agreement for sale has been made or entered in between the complainants and OPs to purchase any flat of any area of schedule property. The impugned order dated 23.12.2019 is misconceived, erroneous and contrary to law and Learned District Commission has failed to exercise its jurisdiction vested by law and has acted with material irregularity and / or illegality. The Learned District Commission should have considered that the instant complaint is not maintainable. The Learned District Commission admitted the valuation of the flat as assessed more than the jurisdiction of the Commission to adjudicate the same. The Learned Commission has not perused the documents at the time of admission hearing and there is no jurisdiction to adjudicate the complaint. Hence the appellants have prayed for dismissal of the complaint case and to stay the operation of the impugned final order dated 23.12.2019.

Learned Counsel for the appellant has stressed upon the point that no schedule of the flat has been mentioned in the petition of complaint. Surprisingly, this point has not been stated in the memo of appeal. Moreover, in the complaint petition we have found that the complainant has clearly stated in para 4 of his petition the position of the flat. It is true that no agreement for sale has been executed by and between the parties. But it was the obligatory duty of the OPs also to execute the agreement for sale with the complainant. The Learned Counsel for the appellant has not denied the payment made by the respondent / complainant. All money receipts have been annexed by the complainant with the petition of complaint which are mentioned in running page 8 of the complaint petition. Those payments have not been denied by the appellant.

Upon submission of the Learned Counsel of the appellant and on perusal of the materials on record there is no scope to deny that complainant booked a flat which would be constructed by the OPs for a total consideration of Rs.11,00,000/-. The value of the flat and amount of compensation prayed for is well within the jurisdiction of the District Commission as per C.P. Act, 1986. Therefore, the argument on behalf of the O.Ps/ Appellants that the valuation of the case exceeds the jurisdiction of District Commission is not sustainable.

The appellant, on the date of hearing, showed a trade licence in favour of appellant No. 1 namely Pradip Saha only that does not mean that both the appellants did not receive the amount from the complainant for the flat in question. When the appellants were asked to produce the money receipt they failed to produce so. Therefore, relying upon the trade licence of appellant 1 does not mean that appellant 2 did not receive the money from the complainant or issued the money receipt to that effect. There is no dispute that OPs received Rs. 5,10,000/- from the complainant for the flat in question but the delivery of the flat never comes into reality. Any person books a flat for a hope to reside there and for many persons it is a dream to become a flat owner. In the instant case complainant paid the amount expecting that he would get the flat in the specified period of time. Since the appellants deprived him, for that reason complainant has been suffering harassment and mental agony.

In view of above discussion, we find no infirmity or material irregularity or any impropriety in the judgment passed by the Learned DCDRC, Kolkata, Unit-III. There is no need to interfere in the impugned judgment invoking the appellate jurisdiction of this Commission.

Therefore, the order of the Learned District Commission concerned is hereby affirmed.

Thus the appeal is dismissed ex parte and disposed of accordingly.