Date of Hearing :14th day of July, 2015
Date of Judgement: Thursday, the 16th day of July, 2015
JUDGEMENT
The instant appeal u/s. 15 of the Consumer Protection Act, 1986 is at the behest of the Opposite Party to impeach judgement and final order dated 17.7.2014 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat in Complaint Case No.185 of 2014.
The Respondent herein being Complainant initiated the Complainant u/s.12 of the Consumer Protection Act, 1986 (herein after referred to as the Act) alleging that he paid a sum of Rs.15000/- only to the Opposite Party /Appellant who is an Advocate in profession on 20.8.2006 for the purpose of registration of Deed of Sale in respect of a flat lying at premises No.2/6, Baitaliki Apartment, situated at 14, I.C. Road, P.O.Rahara, P.S. Khardah, District North 24 Parganas. The Opposite Party had agreed and promised to complete the said registration work for which the Opposite Party issued a money receipt to the Complainant. But the Opposite Party deliberately failed to prepare the Deed of Sale and did not take any steps to execute the same in favour of the Complainant. As a result, the Complainant had to get Deed of Sale registered on 17.7.2013 by appointing another Advocate. The Complainant, thereafter, on several occasions requested the Opposite Party to refund the said money of Rs.15000/- only, but it yielded no result. On 20.3.2015 the Complainant sent a letter to the Opposite Party requesting him to refund the said amount. But the Opposite Party wilfully neglected to refund the sum which amounts to deficiencies in service on the part of the Opposite Party. Hence, the action.
In spite of service of notice Opposite Party did not appear before the Forum to refute the contention of the Complainant. Under compulsion, the case was heard exparte.
Relying upon the contents of the Affidavit of the Complainant and other documents placed before it and having heard the Complainant the Ld. DCDRF allowed the Complaint with a cost of Rs.3000/- and with a further direction to refund the sum of Rs.15000/- within one month from the date of the order, a sum of Rs.2000/- for harassing and mental agony and a sum of Rs.5000/- to be paid to the State Consumer Welfare Fund as penalty for unfair trade practice which prompted the Opposite Party to prefer this appeal.
The point arises for consideration in this appeal as to whether or not Ld. DCDRF was justified in passing the Order impugned.
Admittedly, the Complainant paid a sum of Rs.15000/- only to the Opposite Party who is an Advocate in profession for the purpose of the registration of the Deed of Sale in respect of a flat being No.2/6, Baitaliki Apartment, situated at 14, I.C. Road, P.O. Rahara, P.S. Khardah, Dist. North 24 Parganas. The Opposite Party had issued a Money Receipt on 20.08.2006 acknowledging receipt of Rs.15000/- only from the Complainant towards registration of a flat of the Complainant by cash. It also remains undisputed that the registration of the flat of the Complainant was not done by the Opposite Party but by another Advocate on 17.7.2013. It indicates that in respect of receipt of amount of Rs.15000/- , the Opposite Party did not render any service towards registration of flat of the Complainant.
The Annexure along with the appeal indicates that on 20.3.2014 the Complainant wrote a letter to the Opposite Party requesting him to refund the amount of Rs.15000/- within 15 (fifteen) days from the date of receipt of that letter.
Ld. Advocate appearing for the Appellant has submitted his client did not receive the alleged Demand Notice dated 20.3.2014 and therefore, had no cause of action after long 8(eight) years from the date of issuance of alleged money receipt. Such submission appears to be as self-contradictory in as much as in paragraph 3 of his application for Stay Order the Appellant/Opposite Party himself has asserted that on receiving the said Demand Notice dated 20.3.2014 his wife failed to hand over the said Demand Notice to him after he returned home from the Sealdah Court. This statement it is signified that the Opposite Party had noticed about the Demand Notice dated 20.3.2014. Otherwise he would not have mentioned that his wife failed to hand over the same after returning home from Sealdah Court. Whether the wife of the Opposite Party is a mentally disturbed psychiatric patient is totally irrelevant for the purpose of adjudication of disputes between the parties, particularly when Opposite Party had knowledge about notice dated 20.3.2014. Ld. DCDRF has rightly observed that the Opposite Party was liable to refund the amount received by him from the Complainant along with compensation.
In spite of receipt of Notice the Opposite Party did not appear before Ld. DCDRF which means that the Opposite Party had nothing to say over the matter. Since the Opposite Party had received an amount of Rs.15000/- to render his services for effective registration to the flat of the Complainant and could not do so, whatever may be the reason, the Opposite Party cannot absolve his liability to refund the said amount of Rs.15000/- .
Therefore, having heard the Ld. Advocate for the Appellant as well as the Respondent in person we are of the view that the impugned Order does not require any interference by this Commission save and except the imposition the penalty of Rs.5000/- in favour of Consumer Welfare Fund for unfair trade practice because imposition of penalty on the account of unfair trade practice would be misnomer in the facts and circumstances of the case.
In that view of the matter, the appeal is allowed in part on contest. However, we do not make any order as to costs in this appeal.
The impugned judgement is modified to the extent that the Opposite Party/Appellant is exempted from payment of Rs.5000/- imposed upon him as penalty for unfair trade practice. However, he shall comply with the other part of the order of Ld. District Consumer Forum, North 24 Parganas at Barasat in connection with CC No.185/2014 in its letter and spirit within one month from this date, otherwise the Respondent/Complainant will be at liberty to put the order in execution.
