Sri Subhra Sankar Bhatta, Presiding Member
The instant appeal under Section 15 of the Consumer Protection Act, 1986 has been directed at the instance of the Appellant viz. Sri Dibyendu Dutta who was the Complainant before the District Consumer Disputes Redressal Commission, Kolkata Unit—III (hereinafter referred to as the ‘District Commission’ for short) assailing the impugned judgment and order dated 13.08.2018 passed by the District Commission in connection with Consumer Complaint Case no. CC/698/2017 wherein and whereby the Ld. District Commission was pleased to dismiss the complaint case of the Complainant ex parte being not maintainable in the present form.
Sri Dibyendu Dutta, the Appellant herein as Complainant instituted the petition of complaint under Section 12 of the Consumer Protection Act, 1986 on 14.12.2017 against the Opposite Parties before the District Commission praying for certain reliefs as detailed in the prayer portion of the said complaint.
Case of the Complainant, in a nut shell, is that Complainant being desirous of purchasing a self-contained flat approached the Opposite Parties for the same in respect of an area measuring 500 sq.ft more or less @ Rs. 2,800/- per sq.ft. on the first floor of the building situated at Municipal Premises no. 96, S.N Roy Road, P.S Behala, Kolkata—700038 appertaining to Ward no. 118 of the KMC.
Further case of the Complainant, is that the Opposite Party no. 1 is carrying on business of building construction work (dwelling units) in different projects under the name and style of “Bela Construction”. Opposite Party No. 3 being the owner of the said premises entered into a development agreement (duly notarised) with the developer i.e. OP Nos. 1 and 2 on 27.07.2012 for the purpose of development of the said property. Both the parties had agreed to develop the said property by way of under ratio of share to dispose of by their responsibility of booking for sale in respect of the property in question. On the self-same day a Registered General power of attorney was also executed between the parties.
Further case of the Complainant, is that, Opposite Parties entered into an agreement for sale on 28th day of October, 2015 with the intending purchaser i.e. the Complainant for sale of one flat having an area of 500 sq.ft. more or less @ Rs. 2,800 per sq.ft. super builtup area on the first floor of the said building more particularly described in B schedule of the agreement together with undivided proportionate share of right, title and interest in the property in question. The Opposite Parties/Developer mentioned in the development agreement dated 27.07.2012 executed by and between the owner/vendor and the developer that the said agreement will be irrevocable for specific purpose of agreement and the developer will have the absolute right to transfer the undivided share of the property in favour of the intending purchasers from his allocated share in the said building.
Further case of the Complainant, is that, the Opposite party No. 1/Developer received consideration money of Rs. 10,00,000/- (Ten Lakhs) out of total of Rs. 14,00,000/- and also issued two receipts dated 22.09.2015 and 28.10.2015 for Rs. 7,00,000/- and Rs. 3,00,000/- respectively from ‘Bela Construction’. It has been alleged that the said building has already been completed under the sanction plan no. 2013130294 dated 25.09.2013 and the construction work has been done in accordance with the said sanctioned plan. The Opposite party already received Rs. 10,00,000/- out of Rs.14,00,000/- in respect of the flat in question. It has been categorically alleged that despite repeated demand for delivery of the possession of the flat in question Opposite Party No. 1 did not bother to hand over the same. It has been also alleged that the OP failed and neglected to deliver the said flat in question within the stipulated period on several pretext. Under such circumstances the Complainant was compelled to send a demand notice to the Opposite Party for compliance of the terms and conditions of the agreement for sale dated 28.10.2015 through his Ld. Advocate. In spite of receiving the demand notice the Opposite Party did not do anything. Thereafter the complainant contacted with the Opposite Party on several occasions but nothing could be done. Under such circumstances and finding no other alternative the Complainant compelled to file the petition of complaint before the District Commission for redressal and relief.
On 31.08.2018 the Ld. District Commission was pleased to dismiss the petition of complaint on the ground of maintainability.
Being aggrieved by and dissatisfied with the above order of the Ld. District Commission the Appellant/Complainant has preferred the present appeal on various grounds as highlighted in the Memorandum of appeal. It has been contended in the Memorandum of appeal that the Ld. District Commission dealt with the facts of the complaint case without considering the materials on record; that the Ld. District Commission failed to appreciate that the Registered General Power of Attorney dated 27.07.2012 was not provided to the Appellant/Complainant at any point of time; that the Ld. District Commission failed to appreciate that Rs. 10,00,000/- were already paid by the Appellant/Complainant through his Bank account maintained with the Bank of India but the money receipts dated 22.09.2015 and 28.10.2015 were issued in the name of Tanushree Dutta, wife of the Appellant/Complainant; that the Ld. Commission below wrongly held that Tanushree Dutta ought to have been impleaded as a party to the said complaint case. On all such grounds the Appellant/Complainant has prayed for allowing the present appeal after setting aside the impugned order of the Ld. District Commission below.
I have meticulously gone through the entire materials on record including the brief notes of argument filed on behalf of the Appellant/Complainant. I have also perused the impugned ex parte order passed by the Ld. Commission below. Admittedly, Respondent no. 3 Smt. Kusum Majumdar was the actual owner of the property situated at premises no. 96 S.N Roy Road, Kolkata—700038 having an area of 3 Cottahs one Chittak 0 sq.ft. It is also an admitted fact that Respondent No. 1 was the constituted Power of Attorney holder of Respondent No. 3 by dint of Registered General Power of Attorney. The said power of attorney dated 27.07.2012 was not produced before the Ld. Commission below at the time of trial from the end of the Complainant/Appellant. The development agreement dated 27.07.2012 was not also produced before the Ld. Commission below. In the agreement for sale dated 28.10.2015 there is specific mention of that development agreement and notarised power of attorney. Non-production of such vital documents creates adverse presumption against the case of the Complainant/Appellant.
It is crystal clear from the receipts dated 22.09.2015 and 28.10.2015 that Bela Constructions issued both the money receipts in the name of Tanushree Dutta (Panja). It is the case of the Appellant/Complainant that the said money was paid from the account of the Appellant/Complainant but the money receipts were issued in the name of Tanushree Dutta as wife of the Complainant. Such submission of the Ld. Counsel for the Appellant/Complainant cannot be and should not be believed at all. Reasons best known to the Appellant/Complainant as to why those two money receipts were issued in the name of Tanushree Dutta by “Bela Construction”.
It reveals from the agreement for sale dated 28.10.2015 that said Tanushree Dutta executed the said agreement on behalf of Dibyendu Dutta, the Appellant/Complainant herein. Curious enough to note here that said Tanushree Dutta was not impleaded as a party in the petition of complaint. Undoubtedly, Tanushree Dutta is a necessary party in the present litigation. Her presence is urgently required for just and effective adjudication of the complaint case. In my considered opinion the case of the Appellant/Complainant is certainly not maintainable for non-joinder of necessary party.
Considering all aspects from all angles and keeping in mind the submission of the Ld. Counsel for the Appellant and regard being had to the proposition of law I come to an irresistible conclusion that the Complainant miserably failed to prove his case by adducing cogent and satisfactory evidence. I also hold that Tanushree Dutta is certainly a necessary party in the complaint case. Consequently, the Complaint case is not at all maintainable for non-joinder of necessary party. I further hold that the Complainant hopelessly failed to bring any iota of evidence to establish that he is a consumer under the Consumer Protection Act, 1986.
Practically, I do not find any error, irregularity or illegality in the impugned order of the Ld. Commission below.
The said order requires to be sustained in the eye of law.
Resultantly, the present appeal fails.
It is, therefore,
O R D E R E D
That the present Appeal being no. A/993/2018 be and the same is dismissed ex parte against the Respondents but considering the circumstances without any order as to costs.
The final order dated 31.08.2018 passed by the Ld. District Commission in connection with complaint case no. CC/698/2017 is hereby affirmed.
Let a copy of this order be transmitted to the Ld. Commission below forthwith for information and taking necessary action.
Interim order, if any, be vacated at once.
Thus, the Appeal stands disposed of.
Note accordingly.
