DIST. CONSUMER  DISPUTES  REDRESAL  COMMISSION

NORTH 24 Pgs., BARASAT.

C.C. No. 323/2022

Date of Filing                                     Date of Admission                 Date of Disposal

                                                                09.11.2022                              19.02.2024

P R E S E N T                       :- Sri. Daman Prosad Biswas……….President.

                                                :- Sri.  Abhijit Basu…………………. Member.

JUDGMENT/FINAL ORDER

            Complainant above named had filed a petition before the Ld. D.C.D.R.F (now Commission) at Siliguri on 08/02/2022 which was registered as C.C./14/2022 praying for direction to O.P No. 1-4 to hand over the physical possession of flat no. 406/A, compensation amounting to Rs. 5,00,000/-, litigation cost and other reliefs. Ld. D.C.D.R.C, Siliguri vide order no. 4 dated 05/04/2022 observed that Complainant and Opposite Parties are residing in the outside jurisdiction of the said Commission and due to the said reason Ld. D.C.D.R.F (now commission) did not admit the said case. Liberty was given to the Complainant to take necessary steps to file the complaint within proper jurisdiction.

Thereafter, Complainant filed another case before the Ld. D.C.D.R.C, Jalpaiguri which was registered as Case No. C.C./31/2022. But Hon’ble D.C.D.R.C Jalpiaguri vide order dated 23/05/2022 not yet admitted the case with the observation that cause of action arose on 05/01/2016 and on 09/02/2017 but Complainant failed to file any case within the stipulated period of 2 years. Hon’ble D.C.D.R.C Jalpaiguri further observed that case was badly delayed by more than 6 years and therefore same cannot be admitted.

            Thereafter Complainant filed an appeal before the Hon’ble Circuit Bench of Hon’ble S.C.D.R.C, Siliguri said appeal was registered as A/28/2022 on 11/06/2022. They filed BNA before the circuit bench of Hon’ble S.C.D.R.C on 11/06/2022. Hon’ble Circuit Bench of Hon’ble S.C.D.R.C passed the judgment dated 26/09/2022 and pleased to pass the following order:-

                     “That the instant appeal be and the same is hereby allowed on contest without any cost. The order of Ld. D.C.D.R.C Jalpaiguri dated 23/05/2022 in C.C./31/2022 stand set aside. The Complainant is at liberty to pursue his instant consumer complaint being no. C.C./31/2022 before the Ld. D.C.D.R.C Jalpaiguri in due process of law on merit. Or at his convenience, he may file fresh consumer complaint near his house at North 24 Parganas or District Commission, Siliguri as the subject matter is located thereon.

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C.C. No. 323/2022

The period of pendency of the case since its filing at Siliguri D.C.D.R.Cand till this day as finally disposal of appeal shall be excluded at the time of computation of delays. Let a copy of this order be handed over to the parties of appeal free of cost and to be communicated to the Ld. D.C.D.R.C, Jalpaiguri.”

            Thereafter, Complainant filed the present case before this Commission U/s 35 read with Section 39 of Consumer Protection Act, 2019. He alleged in the petition of complaint that he is a permanent resident of 12/8, Dharambir Colony, Ward No. 5, Kanchrapara, P.S. – Bizpur, District North 24 Parganas and he being the consumer have preferred two consumer complaint case against the Respondent / O.Ps. One case was filed before the Ld. D.C.D.R.C Siliguri vide no. C.C./14/2022 dated 08/02/2022. He also filed another case before the D.C.D.R.C, Jalpaiguri vide no. C.C./31/2022 dated 10/05/2022.

            Thereafter Complainant had filed first appeal no. A/28/2022 dated 13/06/2022 before the Ld. Circuit Bench, Siliguri S.C.D.R.C. Ld. Circuit Bench of Hon’ble S.C.D.R.C passed the final order on 26/09/2022. Opposite Party contacted with the Complainant. On 21/08/2021 Complainant went the project spot to know the original facts but looked that company already sold out the flat which was booked in the name of petitioners to the third party. Complainant had friendship with O.P No. 6 and 7. On 17/02/2015 Mr. Sibendu Mitra O.P No. 6 came to the house of petitioner for celebrating the birthday of Complainant and proposed the Complainant to purchase a flat from O.P No. 1 company. After the said incident on several times O.P No. 6 and 7 requested him to buy a flat. On 05/01/2016 Complainant decided to purchase a flat from O.P No. 6 and 7. Thereafter Complainant paid Rs. 1,00,000/- in their favour. Complainant requested O.P No. 6 and 7 to hand over all the documents and they agreed. But they were showing lame excuse to hand over the documents. Finding no other alternative Complainant went the Siliguri project where O.P No. 6 introduced the petitioner with the company officials. Opposite Parties confirmed the booking of flat no. 406/A in his name. On 09/02/2017 Complainant on good faith issued cheque in favour of the company amounting to Rs. 60,000/-. Thereafter Complainant also paid Rs. 1,00,000/- in favour of the O.P No. 1. Complainant paid Rs. 1,60,00/- out of total consideration money of Rs. 4,95,000/-. Subsequently Complainant paid money through O.P No. 6 and 7 and some time through bank online transaction and by cash transaction and by this way Complainant had already been paid total amount of Rs. 4,84,500/- out of the consideration money and Rs. 4,95,000/-. But Complainant did not get the said flat and filed this case before the aforesaid commission.

            Complainant filed postal receipt and postal track report in respect of O.P No. 1-7. On perusal of those documents we find that O.P No. 1 is residing at 417/419, Asihana Towers Exhibition Road, Patna – 800001, Bihar, India. But notices not yet issued in the said address. Notice of O.P No. 1 issued in the name of Dinesh Tiwari. O.P No. 2 resides at Bhaktinagar but said notice not yet issued upon the O.P No. 2 in the given address. By this way on careful checking of those notices, their postal address, postal receipts and track reports we find that Complainant did not take proper steps for issue of notice to the O.Ps as per recorded address of the O.Ps. They somehow collected net copy showing the fact that notice have been properly served. On careful scrutiny it is clear before us that notices not yet issued in the given address of the Opposite Parties. Accordingly we find that notice of this cases not yet served upon the Opposite Parties properly. Taking the said advantage Complainant argued before this Commission that O.Ps not yet appeared inspite of service of summons.

            On perusal of findings of the Ld. D.C.D.R.C, Jalpaiguri we find that Hon’ble D.C.D.R.C held that Complainant filed this case after 6 years from the date of cause of action which arise on 05/01/2016 and accordingly the case was found as barred by limitation and not yet admitted the same.

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Hon’ble S.C.D.R.C observed that flat has not delivered and not yet been executed any sale deed and in this situation the cause of action remains continues and it should not be confined the date 09/02/2017 as the last date of cause of action. Hon’ble S.C.D.R.C held that cause of action till subsists and continues until the possession is delivered. Hon’ble S.C.D.R.C permitted the Complainant to file fresh consumer complaint near his house at North 24 Parganas.

Main contention of the Complainant is that he booked one flat and paid Rs. 4,84,500/- in favour of the O.Ps. Case is running ex-parte against the O.Ps vide order no. 4 dated 22/02/2023.

TRIAL

            During Trial Complainant filed affidavit-in-chief.

DOCUMENTS

            At the time of filing this case he produced the following documents:-

1. Copy of receipt in respect of payment of Rs. 1,00,000/-…….1 sheet…….xerox.
2. Cheque details vide cheque no. 031482 dated 14/02/2017 Rs. 60,000/-….1 sheet…….xerox.
3. Cheque No. 031482 dated 14/02/2017 Rs. 60,000/-….1 sheet…….xerox.
4. Copy of Brochure….1 sheet…….xerox.

BNA

            Complainant filed BNA. Complainant also filed additional BNA on 21/09/2023.

Decisions with Reasons:-

            We have carefully gone through the aforesaid documents. We have also heard the Ld. Advocate for the Complainant at length. Complainant mentioned in his petition of complaint in paragraph no. 7 in page no. 10 that he had already paid total amount of Rs. 4,84,500/- in favour of the O.Ps. He alleged in paragraph no. 7 page no. 10 that total consideration of flat under dispute was fixed at Rs. 4,95,000/- and out of the said amount he paid Rs. 4,84,500/-. He also stated that value of the flat was settled in between the parties amounting to Rs. 4,95,000/-.

            But in support of his contention he could not produced any agreement where from it can be said that value of the flat was settled at Rs. 4,95,000/-.

            He further stated that he paid Rs. 4,84,500/- in favour of the Opposite Parties but in support of his contention he produced one receipt amounting to Rs. 1,00,000/- issued by O.P No. 1 / company and said amount was paid through cheque but there is no information before this Commission that said cheque was subsequently encashed and amount was deducted from the account of the Complainant or not. Complainant filed Xerox copy of cheque no. 31482 amounting to Rs. 60,000/- dated 14/02/2017 but no receipt has been filed before this Commission in support of the fact that said cheque was deposited before the O.Ps and O.Ps encashed the same and said amount has deducted from the bank account of the Complainant. Accordingly, we find that Complainant failed to established that he has paid Rs. 4,84,500/- in favour of the O.Ps.

            We have stated earlier that notices upon O.Ps not yet served properly. In this situation this Commission could issue direction to the Complainant for fresh notice but subsequently we find that Complainant failed to prove his own case by sufficient documentary evidence. Even Complainant failed to produce the original receipt relating to payment of aforesaid Rs. 1,00,000/- in favour of the O.Ps.

            Having regard to the aforesaid discussion it is clear before us that Complainant has failed to established his grievance by sufficient documents beyond reasonable doubt.

            In the result, present case fails.          

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Hence ,

It is

                        Ordered,

That the present case vide no. C.C./323/2022 be and the same is dismissed ex-parte against the O.Ps but without any order as to costs.

Let a plain copy of this order be given to the parties free of cost as per CPR, 2005.

Dictated and Corrected by me

President

Member                                                                                                          President