Sri Subhra Sankar Bhatta, Presiding Member

The present appeal has been preferred under section 41 of the Consumer Protection Act, 2019 at the instance of 1) D. Con, a Proprietorship concern having its Office at Tegharia Main Road, Bindubasini Market Complex A/1, Ground Floor, Police Station Baguihati, Kolkata 700157, Dist. North 24 Parganas and 2) Shri Dipankar Mondol, son of Shri Achinta Mondol Proprietor of D. Con residing at TM5/1 Nishikanan, Tegharia, P.S. Hatiara, Baguihati, Kolkata 700157, Dist. North 24 Parganas assailing the judgment and order dated 16^th September, 2021 passed by the Additional Consumer Disputes Redressal Commission, Rajarhat, Newtown in connection with consumer complaint case no. RBT/CC/91/2020 whereby Ld. District Commission was pleased to allow the complaint case ex parte against the Opposite Parties with the following directions:-

“The OPs shall refund either jointly or severally an amount of Rs. 2,50,000/- to the Complainant along with interest @ 12% p.a. in the form of compensation on the said amount for the period from 26.05.2017 till the date of entire realisation of the amount within 45 days from the date of passing this judgment along with litigation cost of Rs. 15,000/- to the Complainant within 45 days from the date of passing this judgment in default the Complainant will be at liberty to put the entire decree in execution as per provision of law.”

The fact of the complaint case, in a nutshell, is that the Complainant is a Consumer within the meaning of Consumer Protection Act, 1986. The OP No. 1 (Appellant No. 1 herein) is the proprietorship concern represented by OP No. 2 Sri Dipankar Mondal (Appellant No. 2 herein). The OP No. 3 (Respondent No. 2 herein) is the absolute owner of the land in question.  Appellant Nos. 1 and 2 (OP Nos. 1 and 2) entered into a registered deed of development agreement with Respondent No. 2 (OP No. 3 of the complaint case) on 05.03.2013.  Accordingly, Respondent No. 2 Smt. Chayna Dey had executed a power of attorney with certain terms and conditions in order to construct a multi-storied building over the land in question as per sanctioned building plan of Rajarhat-Gopalpur Municipality or any other appropriate authority.  It is the further case of the Complainant that for the purpose of amalgamation of two plots separate development agreement was also executed on the self-same date by and between the OP Nos. 1, 2 and OP No. 3.   On 26.05.2015 the OP Nos. 1 and 2 had entered into an agreement for sale with the Complainant (Respondent No. 1 herein) in order to hand over a residential flat measuring about 425 sq. ft. including super built-up area being flat No. G/A on the Ground Floor in the Block-H/P in the said multi-storied building consisting of one bed room, one drawing cum dining, one kitchen, one toilet and one balcony along with proportionate share of the land including rights of user the common areas of the said building namely Heaven Plaza at a total consideration of Rs.10,20,000/-.  Out of the total consideration the Complainant paid a sum of Rs.1,00,000/- at the time of execution of the agreement for sale through cheque being No. 046319 Dated 26.05.2017.  It was categorically mentioned in the said agreement that the Complainant shall pay the balance consideration amount as per payment schedule described in the body of the agreement  but in the payment schedule it was not specifically mentioned as to when the balance will be paid to OP Nos. 1 and 2 by the Complainant.  It is also the case of the Complainant that OP Nos. 1 and 2 gave assurance to the Complainant to arrange the Bank Loan for the said Flat but as the land under schedule A and B is not a Vastu Land, the Bank was not agreed to allowBank loan for the said flat. It was specifically mentioned in the agreement for sale that the land has been classified as Vastu land.

Further case of the complainant is that knowing actual fact about the classification of the land the Complainant requested the Opposite Parties to refund the amount but the Opposite Parties requested the Complainant to purchase the said flat. It was settled by and between the Complainant and OP Nos. 1 and 2 that OP Nos. 1 and 2 would allow the Complainant at least five years time to purchase the said flat and in the meantime OP Nos. 1 and 2 shall convert the said land from Pukur to Vastu and as and when the Complainant will pay entire balance amount to OP Nos. 1 and 2 for the said flat, the OP Nos. 1 and 2 will hand over the peaceful possession of the said flat and also execute proper sale deed. Though there is no mention of the time for payment schedule, the Complainant paid a sum of Rs. 1,50,000/- and till 05.06.2017 the Complainant paid a total sum of Rs. 2,50,000/- out of the consideration money.

On 19.01.2018 OP Nos. 1 and 2 issued a letter upon the Complainant and demanded Rs. 5,00,000/- within a week otherwise  OP Nos. 1 and 2 will cancel the said agreement for sale. The OP Nos. 1 and 2 also directed the Complainant to meet at their office with original agreement, money receipts after giving prior intimation but they did not mention in the body of the said letter as to whether the land has been converted as per their commitment given earlier and there is also no whisper in the body of the letter regarding refund of the paid amount. According to the Complainant the OP Nos. 1 and 2 have no right to cancel the agreement in question unilaterally. Upon receipt of the said letter the Complainant went to the office of OP No. 1 and found the office in a closed condition. Ultimately, Complainant issued two letters to OP Nos. 1 and 2 but the same were returned to the Complainant. It has been alleged that OP Nos. 1 and 2 in collusion with each other intended to deprive the Complainant from his legitimate right despite receipt of the amount for the said flat without providing proper documents. It has been also alleged that the Opposite Parties also threatened the Complainant by uttering that the developers will cancel the said agreement for sale without refunding the money. It is the categorical version of the Complainant that he is always ready and willing to hand over the balance amount for the said flat if the Opposite Parties will hand over valid documents regarding the character of the land. In spite of such request the OP Nos. 1 and 2 flatly refused and turned down the request of the Complainant. It has been also alleged that the OPs are trying to sell out the said flat in question to the 3^rd party depriving the Complainant. It is the further case of the Complainant that he had invested his hard earned money for purchasing the said flat.  In spite of his diligent effort the Opposite Parties failed to comply the terms and conditions of the agreement for sale.

Further case of the Complainant, is that he tried his level best to settle the dispute by way of amicable settlement but failed. Finding no other alternative the Complainant was compelled to approach before the DCDRF, Barasat and filed the complaint case praying for certain directions upon the OPs as sought for in the prayer portion of the petition of complaint.

The case record goes to indicate that initially the present complaint case was instituted before the District Consumer Disputes Redressal Forum at Barasat and thereafter the said case was transferred to Additional Consumer Disputes Redressal Commission, Rajarhat, New Town.

Opposite Party Nos. 1, 2, 3 and 4 did not turn up to contest the complaint case despite receipt of the notice from the concerned Commission. As a consequence of which the Complaint Case was proceeded and heard ex parte. On 16^th September, 2021 the Consumer Complaint Case being no. RBT/CC/91/2020 was allowed ex parte against the OPs with certain directions.

Being aggrieved by and dissatisfied with the impugned judgment and order of the Ld. Commission below OP Nos. 1 and 2 as Appellants have preferred the present appeal on 3^rd November, 2021 on various grounds as highlighted in the body of the memorandum of appeal. It has been contended that the Ld. Commission below passed the ex parte judgment and order without applying judicial mind; that the Ld. Commission below erred both in law and facts by observing that the Appellants have committed unfair trade practises by not executing the deed of conveyance; that the Ld. Commission below failed to appreciate that the Respondent/Complainant claimed refund of the advance money by giving letter on 09.02.2019; that the Ld. Commission below further failed to appreciate that the Respondent/Complainant admitted the cancellation of the agreement for sale on 26.11.2018; that the Respondent/Complainant never raised any objection against such cancellation of agreement; that the  Ld. Commission below further failed to appreciate that the complaint petition was instituted beyond the stipulated period of limitation; that the Ld. Commission below erred in deciding the case in favour of the Respondent/Complainant; that the Ld. Commission below also failed to observe that no specific schedule towards the payment of balance consideration was there in the petition of complaint; that the impugned judgment and order is speculative and liable to be set aside; that the Ld. Commission below failed to hold that there was no deficiency of service or unfair trade practises from the end of the Appellants/OPs. On all such grounds the Appellants have prayed for allowing the present appeal after setting aside the impugned ex parte judgment and order.

POINTS FOR DETERMINATION

1. Whether the Ld. District Commission has committed any error or irregularity or illegality in passing the impugned judgment and order.

2. Whether the impugned judgment and order dated 16.09.2021 passed by the Additional Consumer Disputes Redressal Commission,            Rajarhat in Complaint Case no. RBT/CC/91/2020 can be sustained in the eye of law.

3. Whether the Ld. District Commission below was justified in arriving at the ultimate conclusion.

4. Whether the impugned Judgment deserves interference of this Appellate Authority.

DECISIONS WITH REASONS

All the above four points are taken up together for the brevity of discussion and in order to avoid unnecessary repetitions. Moreover, all the points are interrelated and interlinked with each other.

Ld. Counsel appearing for the Appellants has submitted that the impugned judgment and order was passed by the Ld. Commission below without applying judicial mind and without considering the materials available on record. It has been also submitted that the Respondent/Complainant obtained the impugned judgment and order by misleading and suppressing the actual fact. It has been further argued that there was no unfair trade practice or deficiency in service on the part of the Appellants at any point of time. Ld. Counsel has boldly urged that by dint of letter dated 09.02.2019 the Respondent/Complainant unequivocally admitted the cancellation of the agreement for sale on 26.11.2018 and the Respondent/Complainant did not challenge such cancellation before any authority. According to the Ld. Counsel the Petition of complaint was filed beyond the stipulated period of limitation and as such the complaint petition is liable to be rejected in limini. He has prayed for allowing the present appeal after setting aside the impugned ex parte judgment and order.

Respondent/Complainant, Somnath Samaddar has argued the present appeal in person. He has submitted that an agreement for sale was executed on 26^th day of May, 2015 between the land owners viz. Smt. Chayna Dey (Respondent No. 2) and Sri Sujit Kumar Saha (Respondent No. 3) through their lawful constituted Attorney Sri Dipankar Mondol by virtue of a registered general Power of Attorney dated 5^th March, 2013 and by that agreement the land owners agreed to sell the Complainant a residential flat in the multi storied building popularly known as Heaven Plaza (description of which has been given in the schedule to the agreement for sale) at a total consideration of Rs. 10,20,000/-. It has been also submitted that out of the said consideration he paid a sum of Rs. 1,00,000/- at the time of execution of the agreement for sale through cheque being no. 046319 dated 26.05.2017 and Rs. 1,50,000/- till 05.06.2017. Thus, he paid a total sum of Rs. 2,50,000/- out of the consideration money. It is the further submission of the Complainant/Respondent no.1 that on 19.01.2018 the OP Nos. 1 and 2 issued a letter and demanded Rs. 5,00,000/- within a week otherwise they will cancel the agreement for sale and also directed him to meet at their office with original agreement, money receipts. It has been further submitted that the character of the land as per ROR was ‘Pukur Par’ and the Opposite Parties gave assurance to convert the land from ‘Pukur Par’ to ‘Bastu’ before registration of the original deed but they did not keep such assurance. It has been alleged that subsequently the Complainant issued two letters but those were returned without service. It has been specifically alleged that OP Nos. 1 and 2 the present Appellants in collusion with each other intended to deprive the Complainant from his legitimate right. Under such compelling circumstances the Complainant/Respondent No. 1 instituted the complaint case praying for relief and redressal. Respondent/Complainant has prayed for outright dismissal of the appeal with compensatory costs.

We have meticulously perused the agreement for sale dated 26^th day of May, 2015 (Xerox copy of annexure A, Xerox copy of memo of consideration, Xerox copy of ROR ‘Annexure B’, Xerox copy money receipts dated 26.05.2017 ‘Annexure C’, Xerox copy letter dated 19.01.2018 ‘Annexure D’ sent by the D. Con Promoter and Developer to the Complainant and the Xerox copy of letter dated 19.01.2019 ‘Annexure E’ sent by D. Con Promoter and Developer to the Complainant).

At the very outset it is very much pertinent and relevant to mention that the OPs did not turn up to contest the complaint case despite service of notice and as a conseq          uence of which the complaint case was proceeded and heard ex parte.

Admittedly, Appellant no. 1 is the Proprietorship Concern represented by Appellant No. 2 the Proprietor of the said Proprietorship Concern. Respondent Nos. 2 and 3 are the absolute owners of the land in question. It is also an admitted fact that Appellant Nos. 1 and 2 entered into two registered agreement for development of the land in question with the land owner and executed two separate registered power of attorney with certain terms and conditions. It is also an admitted fact that on 26^th May of 2015 the Appellants entered into an agreement for sale with the Respondent/Complainant in order to sell a residential flat, description of which has been more particularly detailed in the schedule to the said agreement at a total consideration of Rs. 10,20,000/-. Undoubtedly, the Respondent/Complainant paid Rs. 1,00,000/- at the time of execution of the said agreement by way of a cheque being no. 046319 dated 26.05.2017 and Rs. 1,50,000/- on subsequent dates. There is no dispute that the Appellants have already received Rs. 2,50,000/- from the Respondent/Complainant out of the total consideration of Rs. 10,20,000/-.

Admittedly, Appellants have already cancelled the agreement for sale and after such cancellation the Respondent No. 1/Complainant instituted the complaint petition before the Ld. Commission below praying for redressal. Xerox copy of letter dated 19.01.2019 goes to prove that the Appellants/D. Con Promoter and Developer has already cancelled the booking of the flat in question. Such cancellation was made by the Appellants unilaterally and without giving any intimation to the Respondent/Complainant. Such performance on the part of the Appellants tantamounts to clear unfair trade practice and deficiency in service. In this context it is worthy to note that no document has come from the end of the Appellants to establish that the character of the land in question has already been converted from ‘Pukur Par’ to ‘Bastu’. Paragraph no. 20 of the petition of complaint goes to prove that the petition of complaint was filed well within the stipulated period of limitation.

Considering all aspects from all angles and keeping in mind the submissions of both sides and regard being had to the present position of law we have no option left but to hold that the present appeal instituted at the instance of the Appellants is liable to be dismissed. Practically, we find no error, irregularity or illegality in the impugned judgment and order of the Ld. Commission below rather it can be safely concluded that the Ld. Commission below was totally justified in the approach and ultimate conclusion. In our considered view the impugned judgment and order deserve to be sustained in the eye of law.

No interference is required.

All the above points are thus answered against the Appellants.

Thus, the present appeal fails.

Resultantly, the impugned judgment and order of the Ld. Commission below stand affirmed.

It is, therefore,

O R D E R E D

That the present appeal being no. 96/2021 be and the same is dismissed on contest against the Respondents but considering the circumstances without any order as to costs.

The judgment and order dated 16^th September, 2021 passed by the Ld. Additional Consumer Disputes Redressal Commission, Rajarhat (New Town) in connection with Complaint Case no. RBT/CC/91/2020 are hereby affirmed.

Let a copy of this order be transmitted to the Ld. Commission below forthwith for information and taking necessary action.

Let free copy of this judgment and order be handed over to the contesting parties forthwith.

Thus, the Appeal stands disposed of.

Interim order, if any, be vacated forthwith.

Note accordingly.