28.11.2014

MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER

            The instant Appeal has been filed challenging the judgment and order dated 16.1.2014 passed ex parte by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas, in C.C.Case No. 438 of 2013, directing the Appellants/Ops to execute and register the Deed of Conveyance together with delivery of possession of the land within one month from the date of order.

          The brief facts of the case are that the Respondent/Complainant entered into an Agreement dated 16.6.2002 with the Appellants/Ops for purchase of a piece of land of 2160 sq. ft. in Mouza Jhanjhragram, P.S. Bishnupur, Dist. South 24 Parganas, having Khatian No. 76 and Dag No. 50.  After the same being developed by the Appellants/Ops into a residential plot for a consideration of Rs. 1,00,000/-, accordingly, the Respondent/Complainant paid Rs. 10,000/- as booking money, vide an undated copy of certificate available on records.  After such agreement the Respondent/Complainant paid the full consideration within July, 2006 in instalments as per terms and conditions of the Agreement.  This payment apart, the Respondent/Complainant paid the registration charges of Rs. 10,000/- by cheque dated 25.8.2009.  Inspite of discharge by the Respondent/Complainant of the contractual obligations as per terms and conditions of the said Agreement, the Appellants/Ops not only failed to execute and register the Deed of Conveyance but also proposed by a letter dated 17.10.2012 for alteration of the location of the plot earmarked for the Respondent/Complainant, which proposal was turned down by the Respondent/Complainant by a letter dated 16.11.2012.  In this background, the Ld. District Forum passed the impugned judgment and order.  Aggrieved by such order the Appellants/OPs have preferred this Appeal.

          The Ld. Advocate for the Appellants/Ops submits that the Ld. District Forum erred in passing ex parte the impugned judgment and order without allowing the Appellants/Ops 30 days’ time for filing Written Version as required u/s 13(2)(a) of the Consumer Protection Act, 1986 and thus in a mechanical qua judicial manner as evident from the orders dated 28.11.2013, being the first date, 31.12.2013, being the next date, and 9.1.2014 being the date when final hearing was taken up.  It is further submitted by the Ld. Advocate that the location of the plot in question does not fall within the territorial jurisdiction of the Ld. District Forum.  Finally, the Ld. Advocate submits that in view of the above position of the case, the impugned judgment and order should be set aside.

          On the contrary, the Ld. Advocate for the Respondent/Complainant submits that the opportunity for filing Written Version on 31.12.2013 was allowed to the Appellants/Ops as evident from the order dated 28.11.2013, but none appeared on that date and then on the next date the final hearing was fixed and hence, the impugned judgment and order is not bad in law, rather sustainable in the eye of law.

          We have heard both the sides, considered their submissions and perused the materials on records.

          The Order No. 2 dated 28.11.2013, being the date of admission, reveals that the next date, i.e. 31.12.2013, was fixed for S/R and Written Version when none appeared on behalf of the Appellants/Ops.  Thereafter, the next date, i.e. 9.1.2014, was fixed for ex parte evidence and argument without allowing any further opportunity of filing the Written Version. Further, the next date, i.e. 15.1.2014 was fixed for judgment rejecting the Appellants’/Ops’ petition dated 9.1.2014 for vacating the ex parte order passed earlier on the same date.

          Conjoint reading of the orders dated 28.11.2013, being the first date, and 31.12.2013, being the immediately next date, demonstrates that the Appellants/Ops were not allowed sufficient opportunity to contest the case by filing Written Version for the sake of justice.

          For the reason stated above we are unable to sustain the impugned judgment and order.

          Consequently, the Appeal is allowed, the impugned judgment and order is set aside and the case is remitted to the Ld. District Forum below for deciding the same afresh after allowing the Appellants/Ops to file Written Version and both the sides to adduce their respective evidence and  in accordance with the provisions of law.  No order as to costs.