w w w . L a w y e r S e r v i c e s . i n



M/s. Bose Enterprise Rep. by Rana Basu & Another v/s Chayanika Saha & Another


Company & Directors' Information:- BOSE CORPORATION INDIA PRIVATE LIMITED [Active] CIN = U74899DL1995PTC070025

Company & Directors' Information:- L L ENTERPRISE PRIVATE LIMITED [Active] CIN = U26960AS2002PTC006815

Company & Directors' Information:- E C BOSE AND CO PVT LTD [Active] CIN = U61200WB1962PTC025531

Company & Directors' Information:- G C ENTERPRISE (INDIA) PVT LTD [Active] CIN = U19129WB1992PTC055125

Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- J K ENTERPRISE PVT LTD [Active] CIN = U55101AS1986PTC002580

Company & Directors' Information:- S S G ENTERPRISE (INDIA) PRIVATE LIMITED [Active] CIN = U74899DL2000PTC103084

Company & Directors' Information:- M T ENTERPRISE PRIVATE LIMITED [Strike Off] CIN = U19201WB2001PTC092823

Company & Directors' Information:- S J ENTERPRISE PRIVATE LIMITED [Active] CIN = U51109WB1999PTC090492

Company & Directors' Information:- B M P ENTERPRISE PRIVATE LIMITED [Strike Off] CIN = U74210TN2005PTC056329

Company & Directors' Information:- M N ENTERPRISE PRIVATE LIMITED [Active] CIN = U51101MH2012PTC238475

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- S K BASU & CO LTD [Strike Off] CIN = U36900WB1937PLC009162

Company & Directors' Information:- BOSE & BOSE PVT LTD [Strike Off] CIN = U45201WB1983PTC036988

Company & Directors' Information:- M L BOSE AND CO PVT LTD [Strike Off] CIN = U65993WB1923PTC004737

Company & Directors' Information:- B BOSE & CO PVT LTD [Strike Off] CIN = U74992WB1945PTC012914

Company & Directors' Information:- RANA & CO. PRIVATE LIMITED [Strike Off] CIN = U51109DL1997PTC090894

Company & Directors' Information:- A BOSE PVT LTD [Active] CIN = U01122WB1929PTC006142

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

Company & Directors' Information:- S N BOSE & CO PVT LTD [Strike Off] CIN = U66010WB1952PTC020196

Company & Directors' Information:- N D ENTERPRISE PRIVATE LIMITED [Active] CIN = U72200WB2013PTC222749

Company & Directors' Information:- N D ENTERPRISE PRIVATE LIMITED [Active] CIN = U72200JH2013PTC001004

Company & Directors' Information:- BASU AND COMPANY PRIVATE LIMITED [Active] CIN = U45201DL2001PTC111274

Company & Directors' Information:- G. N. ENTERPRISE PRIVATE LIMITED [Active] CIN = U14294RJ2018PTC061147

Company & Directors' Information:- R K BOSE PVT LTD [Strike Off] CIN = U45201WB1982PTC034540

Company & Directors' Information:- N BOSE & CO PVT LTD [Strike Off] CIN = U70109WB1947PTC015768

Company & Directors' Information:- D N BOSE AND CO PVT LTD [Strike Off] CIN = U51909WB1933PTC007694

    First Appeal No. A/317/2017

    Decided On, 21 August 2019

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SAMARESH PRASAD CHOWDHURY
    By, PRESIDING MEMBER & THE HONOURABLE MRS. DIPA SEN (MAITY)
    By, MEMBER

    For the Appellant: Subrata, Sovanlal Bera, Advocates. For the Respondent: Avijit Bhunia, Gouranga Gupta Roy, Asha Ghosh, Sanhita Shaoo, Advocates.



Judgment Text

Samaresh Prasad Chowdhury, Presiding Member

The instant Appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of opposite parties to assail the final order/judgement being Order No.18 dated 16.12.2016 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-II (in short, Ld. District Forum) in Consumer Complaint no. 152/2016. By the impugned order, the Ld. District Forum allowed the complaint lodged by respondent No.1 Smt. Chayanika Saha under Section 12 of the Act on contest against opposite party No.1 (I) and 1 (II) and ex parte against opposite party No.2 with the following directions:-

“OP No.1 is directed to refund the amount of Rs.12,18,000/- in favour of the Complainant with 9% interest per annum w.e.f. 28.09.2012 till compliance within one month from the date of this order.

OP No.1 is also directed to pay a compensation of Rs.1 lakh to the Complainant apart from litigation cost of Rs.10,000/- within the said stipulated period.

OP No.1 is also directed to deposit an amount of Rs. 1 lakh as penal damage to this Forum for practicing unfair trade within the said stipulated period.

Failure to comply with the order will entitle the complainant to put the order into execution u/s 25 read with Section 27 of the

C.P Act and in that case OP shall be liable to pay penal damage @ Rs.5,000/- per month to be paid to this Forum till full and final satisfaction of the decree.”

The Respondent No.1 herein being complainant lodged the complaint before the Ld. District Forum on the allegation of deficiency in services on the part of OPs/appellants (developer/builder) on the allegation of deficiency in services for non delivery of peaceful vacant possession and non registration of one incomplete flat measuring about 734 sq. ft. super built up area (covered area 614 sq. ft.) i.e. the entire 2nd floor together with all facilities and amenities in a building lying and situated at Premises No. 14, Kalupara Lane, P.S.- Kasba, Kolkata 700031, District- South 24 Parganas within the local limits of Ward No.-91 of Kolkata Municipal Corporation at a total consideration of Rs.16,50,000/-. In the prayer clause of the petition of complaint, respondent No.1/complainant has prayed for following reliefs:-

“a) Direction upon opposite party No.1

i. To recommence the construction of the flat at the scheduled site in terms of the tri-partite agreement dated 15.05.2013 within seven days from the date of the order and to hand over the fully completed flat as agreed to with the completion certificate within three months from the date of the order,

ii. to pay interest on bank loan at the rate as agreed to w.e.f. 15.11.2014 till the flat is handed over and registered in favour of the complainant,

iii. to pay compensation @ Rs.400/- (Four hundred) per day till the flat is handed over for harassment to the complainant till possession and registration of the flat.

Or in the alternative

a. i) to hand over peaceful vacant possession and to register the incomplete flat in its present condition with stipulation for no further payment.

ii) to pay interest on bank loan at the rate as agreed to w.e.f. 15.11.2014 till the flat is handed over and registered in favour of the complainant.

c. to obtain extension of the validity of the sanctioned plan for such period as may be admissible.

d) any other relief as may be admissible.

e) costs”.

We have scrutinised the materials on record and considered the submissions advanced by the Ld. Advocates appearing for the parties.

Mr. Barun Prasad, Ld. Advocate with Mr. Subrata Mondal and Mr. Sovan Lal Bera, Ld. Advocates has submitted that the Ld. District Forum has passed the impugned order beyond the relief claimed by the complainant in the prayer clause of the petition of complaint.He has submitted that the respondent No.1/complainant never claimed alternative relief for refund of the amount and as such the Ld. District Forum had no reason to direct the OP No.1/appellant to refund the amount of Rs.12,18,000/-.He has further submitted that the Ld. District Forum has also erred in law by imposing an award of Rs.1,00,000/- upon OP No.1/appellant under the head of ‘unfair trade practice’ when there was no statement or prayer in the petition of complaint as to unfair trade practice.In support of his contention, Ld. Advocate for the appellants have placed reliance to a decision of the Hon’ble Supreme Court reported in (2015)1 SCC 429 [General Motors (India) Pvt. Ltd. – Vs.- Ashok Ramnik Lal Tolat & Anr.]

Mr. Abhijit Bhunia and Ms. Mousumi Chakrabory, Ld. Advocates for the respondent No.1 and respondent Nos. 2 to 5 respectively could not contradict the submission made by the Ld. Advocate for the appellants.

Having heard both sides and on perusal of the materials on record it would reveal that while passing the order, Ld. District Forum travelled beyond the prayer claimed by the respondent No.1/complainant in the prayer clause of the petition of complaint.In fact, the respondent No.1 /complainant did not make any prayer for alternative relief for refund of money.Therefore, the Ld. District Forum had no occasion to pass an order for refund of amount of Rs.12,18,000/- in favour of the complainant with interest @ 9% p.a. thereon.Equally the Ld. District Forum had no reason to award a sum of Rs.1,00,000/- penal damage for practicing unfair trade as there was no averment in the petition of complaint to that effect.

In General Motors (India) Pvt. Ltd. (supra) while discussing on the point, the Hon’ble Apex Court has observed thus:-

“17. The Act is a piece of social legislation to provide a Forum to the consumers who are taken for a ride by suppliers of goods and services. The redress provided to a consumer against the deficiency in service as well as against any loss or injury arising out of ‘unfair trade practice’. By later amendment, scope of a complaint can cover not only individual consumer but also consumer who are identifiable conveniently. However, the complainant has to make an averment and make a claim. Section 12 of the Act permits not only a complaint by a consumer to who goods are sold or delivered but also against any recognised consumer association or one or more consumers on behalf of and for the benefit of all consumers but still, a case has to be made out and the affected party heard on such issue. We are conscious that having regard to the laudable object of the social legislation to protect the interests of consumers, liberal and purposive interpretation has to be placed on the scheme of the Act avoiding hypertechnical approach at the same time, fair procedure is the hall mark of every legal proceeding and an affected party is entitled to be put to notice of the claim which such affected party has to meet”.

Therefore, considering the proposition of law and the authority referred above we are constrained to interfere with the

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order impugned. In other words, the impugned order being not sustainable in the eye of law is liable to set aside. For the reasons aforesaid, the appeal is allowed on contest. However, there will be no order as to costs. The Judgement/final order being order No.18 dated 16.12.2018 passed by the Ld. District Forum in CC/152/2016 is hereby set aside. The case is remitted on remand with a direction upon the parties to appear before the Ld. District Forum on 29.08.2019 and the Ld. District Forum is requested to rehear the matter and dispose of the same in accordance with law. The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit – II for information.
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