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Maa Kali Construction v/s Shyamal Nandi

    First Appeal No. 277 of 2019
    Decided On, 29 April 2022
    At, West Bengal State Consumer Disputes Redressal Commission Kolkata
    By, MEMBER
    For the Appearing Parties: -------------

Judgment Text
Samiksha Bhattacharya, Member

The instant appeal has been directed by the appellant /OP ( hereinafter referred to as OP ) against the judgement dated 04.12.2018 passed by Ld. DCDRC, Howrah in complaint case HDF No. 104/2018.

The Ld. District Commission allowed the complaint case being HDF No. 104/2018 exparte with cost against the OP. OP is directed to refund the advance amount of Rs. 8,30,880/- to the complainant with interest @ 6% p.a. from the date of filing of the complaint till realisation within two months from the date of order.

Being aggrieved by and dissatisfied with the order the OP filed the instant appeal since the notice has not been properly served upon them. They only came to know regarding the exparte order of the case from the advocate notice of the complainant dated 14.01.2019.

The complaint case , in brief, is that the complainant entered into an agreement dated 17.03.2016 with the OP for the purchase of a flat measuring 540 sq.ft. on the 4th floor of the premises no. 85/15/4, Banerjee Bagan Lane, Salkia, Howrah at a consideration of Rs. 9,62,500/- . Out of total consideration the complainant paid Rs. 8,00,000/- by two cheques and also paid Rs. 30,880/- on difference dates. OP has not completed the flat yet and since the property is a ‘Thika Land’, therefore, the OP is unable to execute and register the deed of conveyance in favour of the complainants. On 17.02.2018 the complainant sent a demand notice through his lawyer demanding refund of advance amount of Rs. 8,30,880/-. In spite of receiving the said notice OP did not refund the amount to the complainant. Hence, the complainant praying for direction upon the OP to refund the earnest money of Rs. 8,00,000/- paid on 17.03.2016 and Rs. 30,880/- spent by the complainant on different accounts i.e. total amount of Rs. 8,30,880/- alongwith consequential relief.

In spite of the receiving the notice none appeared on behalf of the OP before the Ld. District Commission to contest the case. Hence, the Ld. District Commission passed the exparte order.

Ld. Counsel for OP has submitted before us that from the cause title, it is evident that the complainant residing at 85, Banerjee Bagan Lane, Salkia, P.S. Malipanchghara, Howrah. Ld. Counsel for the OP with all fairness submitted before us that it is true that they have entered into agreement but as per agreement still there is due from the complainant. The complainant is in possession of the flat in question. Therefore, the judgement with direction upon them for refunding the amount of Rs 8,30,880/- is not justified. Hence, he prayed for set aside the impugned order dated 04.12.2018.

Ld. Counsel for the complainant has admitted that his client is residing in the flat in question for which the complainant and OP entered into sn agreement dated 17.03.2016. The complainant is ready to vacate the flat and praying for refund of the amount as ordered by the Ld. District Commission.

Upon submission of the both parties and on perusal of the record, there is no denial of the agreement dated 17.03.2016 entered into by and between the parties. In the flat booking agreement it is clearly mentioned in the internal page no. 3 para-4 that the total consideration was fixed at Rs. 9,62,500/- and at the time of agreement the complainant would pay Rs. 8,000,000/-. With the memo of appeal, we have not found any memo of consideration towards Rs. 8,00,000/-. The complainant has also stated in this petition that he has paid of Rs. 30,880/- on different dates but we do not find any receipt to that effect. The complainant has alleged that OP has handed over the incomplete flat. No document has been furnished by the complainant to support his claim. The complainant has not prayed for any Commission before the Ld. District Commission to prove his claim. There is no doubt that the complainant is residing in the flat in question. Therefore, the order of refund of the advance amount without direction upon the complainant to vacate the flat is not justified in the eye of law.

In view of above discussion, we hold that it would be wise to remand the case to the concerned District Commission and to give the opportunity to the OP /Appellant to contest the case by filing their written version, evidence on affidavit, etc.

Since there is material irregularity in the judgment passed by the Ld. DCDRC, Howrah, the judgment dated 04.12.2018 in connection with CC/104/2018 is hereby set aside.

Ld. Dist

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rict Commission, Howrah is requested to give the opportunity to the OP to contest the case and proceed thereafter according to law and dispose of the case as early as possible without giving any unnecessary adjournment to either of the parties . Fix 27.05.2022 for appearance of the parties before the Ld. DCDRC, Howrah to receive further direction. Let a copy of this order be sent to the Ld. DCDRC, Howrah for information. The appeal is allowed and disposed of accordingly.