Order no.  8, dt. 16.02.2023

This case record is taken up for consideration for passing order in this M.A. case which has been filed by the applicants (who are the op nos. 6, 7 and 8 of C.C. case no. 119 of 2018).

This prayer has been contested by the ops by filing W/O.

The argument highlighted by ld. Advocates of both sides had already been heard. Considered submission.

It is the main point of contention and argument that the complainant who is the op of this M.A. case who is not at all a consumer under the applicants of this M.A. case who are the ops of C.C. case no. 119 of 2018.

Over this issue ld. Advocate of the applicant side referred the definition of consumer under the old Act. It is also pointed out by the applicant side even u/s 2 (7) of the Consumer Protection Act, 2019 the complainant of C.C. case no. 119 of 2018 is not at all a consumer under the op nos. 6, 7 and 8 of the C.C. case no. 119 of 2018.

On the other hand, it is main the point of contention and argument of op of this M.A. case that as per compromise degree passed in title suit no. 69 of 2009 of the Court of Ld. Additional Civil Judge (Junior Division), Serampore the present op nos. 6, 7 and 8 of C.C. case no. 119 of 2018 are bound to provide the B schedule property to the complainant.

As per submission of the ld. Advocate of ops of this M.A. case the said order of the ld. Court has not been challenged before the Higher Forum and so the point of contention of the applicants of this case that the complainant of C.C. case no. 119 of 2018 is not a consumer is baseless.

For the purpose of arriving at just and proper decision in this M.A. case after going through the materials of this case record finds that the complainant paid consideration money to the op nos. 4 and 5 but fact remains that the said consideration money has not been refunded by op nos. 4 and 5. It is very important to note that without refunding the consideration money the op nos. 1 to 3 entered into fresh development agreement with the present applicants for the purpose of development of the schedule mentioned property of this complaint case. It is also revealed from the case record that op nos. 6 to 7 also have not refunded the consideration money of the complainant. Over this issue the memorandum of understating which was executed in between the ops on 20.1.2018 it is revealed that the op nos. 6 to 7 agreed to take over proposed development work of the parties of the other part and also agreed to meet the previous liabilities by making payment to the different agreement holder in respect of the flats. This matter is clearly indicating that the present applicants of this M.A. case cannot get rid of their liabilities. Moreover, the present applicants are also duty bound to comply the compromise degree which is passed in title suit no. 61 of 2009 of the Court of Additional Civil Judge (Junior Division) at Serampore.

Thus, it is crystal cellar that the op nos. 6 to 7 of C.C. case no. 119 of 2018 who are the applicants of this M.A. case cannot escape from their liability of this complaint case. Moreover, the questions raised by the applicants in this M.A. case are also required to be determined after taking evidence of both sides.

A cumulative consideration of the above noted discussion goes to show that this C.C. case no. 119 of 2018 cannot be disposed just on the basis of point of maintainability which has been raised in this case. Thus, the M.A. application 69 of 2022 is found not acceptable and so it is liable to be dismissed.

In the result, it is accordingly

ordered

that this M.A. case no. 69 of 2022 be and the same is dismissed on contest. It is found that the C.C. case no. 119 of 2018 is maintainable at this stage.

Let the case record of M.A. case no. 69 of 2022 be tagged with the original case record of C.C. case no. 119 of 2018.