HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This revision petition has been filed against the order No. 5 dated 13/06/2024 passed by the Learned District Consumer Disputes Redressal Commission, Kolkata, Unit-I (North) (in short, ‘the District Commission’) in connection with Misc. Application No. M.A./358/2023 arising out of complaint case No. CC/99/2021 whereby the Learned District Commission was pleased to reject the maintainability application filed by the revisionists.

2. Having heard the Learned Advocate appearing for the revisionists / opposite parties and on perusal of the record it appears to me that the respondent Sandip Kumar Maji as complainant filed a consumer  complaint case being No. CC/99/2021 against the revisionists / petitioners praying for the following reliefs :-

“I) To register and execute the Deed of Conveyance of the flats mentioned in the Schedule A and Schedule B in favour of the Complainant;

II) To hand over the Completion Certificate and such other relevant documents in favour of the Complainant;

III) To complete the list of unfinished work as detailed in paragraphs 30 and 38 of the instant petition of complaint;

IV) To pay compensation to the Complainant as detailed in paragraph 39 hereinabove;

And

OR AS AN ALTERNATIVE

1. To refund the entire consideration amount of Rs.30,84,700/- along with compensation detailed in paragraph 39 of the instant petition of complaint AND to pay interest @ 18% per annum on the consideration amount till date of realisation of the amount paid.

2. And to pass further order or orders as Your Lordship may deem fit and proper.”

3. The revisionists / petitioners entered appearance in this case and filed written version. Thereafter, the complainant filed evidence in affidavit on 24/02/2022. The Learned District Commission was pleased to fix 25/04/2023 for filing questionnaire by the revisionists / petitioners. But the revisionists / petitioners filed an application challenging the maintainability of the complaint case. The Learned District Commission was pleased to dismiss the said application filed by the revisionists / petitioners, challenging the maintainability of the complaint case by the order impugned.

4. Being aggrieved by and dissatisfied with the said order the revisionists / petitioners have filed the present revision petition. Learned Counsel appearing for the revisionists / petitioners has argued that the Learned District Commission has admitted that the said maintainability application are the subject matter of the complaint case which are required to be adjudicated on the touchstone of evidence of both the parties at the time of final hearing. So, the maintainability application should be kept open and should be considered at the time of final hearing.

5. He has further argued that dismissal of the said maintainability petition practically served both of the revisionists / petitioners to re-adjudicate the same at the time of final hearing. So, the revisionists / petitioners have prayed for setting aside the impugned order.

6. Having heard the Learned Advocate appearing for the parties and on careful perusal of the materials available on record, it appears to me that the allegations raised by the revisionists / petitioners in the Misc. application are the subject matter of the complaint case. The questions as raised by the revisionists / petitioners are not a bare question of law but the question of facts. Since the mixed question of facts arise, I think that the maintainability application filed by the revisionists / petitioners should be kept open and it should be considered at the time of final hearing.

7. Under these facts and circumstances, I hold that the Learned District Commission has rightly held that there is no provision under the Consumer Protection Act, 2019 to deal with the question of maintainability of the case without taking evidence of the party after admission hearing under section 36(2) of the Consumer Protection Act, 2019. But I think that if the maintainability application filed by the revisionists / petitioners is rejected then the said maintainability petition practically shut the door of the opposite parties / revisionists to reagitate the same at the time of final hearing.

8. In the result, it is ordered that the maintainability application filed by the revisionists / petitioners be kept open and it should be disposed of at the time of final hearing. The costs as was imposed by the Learned District Commission amounting to Rs.5,000/- (Rupees five thousand only) remains unaltered  since the revisionists / petitioners have filed the instant application only to drag the present complaint case.

9. The revisionists / petitioners, therefore, shall pay costs of Rs.5,000/- (Rupees five thousand only) as was imposed by the Learned District Commission to the complainant before the Learned District Commission. The revisionists / petitioners shall appear before the Learned District Commission on 18/09/2024.

10. The revisional petition is, thus, disposed of accordingly.