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M/s. Dey's Construction & Others v/s Anup Kumar Agarwal & Another

    First Appeal No. 1447 of 2018

    Decided On, 27 August 2018

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE V.K. JAIN
    By, PRESIDING MEMBER

    For the Appellants: Abhimanyu Bannerjee, Advocate. For the Respondents: --------



Judgment Text

Oral:

This is an appeal assailing the interim order passed by the State Commission on 12.07.2018 whereby an application filed by the appellants/OPs challenging the maintainability of the Consumer Complaint was dismissed and an application filed by the complainants seeking appointment of an Engineer as a Court Commissioner was allowed.

2. The complainants/respondents had approached the State Commission with a Consumer Complaint seeking execution and registration of the Conveyance Deed of a residential flat which the complainants had purchased from the appellants for a consideration of Rs.38,50,000/-. The possession of the flat was alleged to have been delivered to the complainants in October, 2015. According to the complainants, there were several deficiencies in the flat and the conveyance deed had not been executed in their favour. This was also their allegation that there was shortfall in area of the flat to the extent of 56 sq. ft.

3. The OPs/appellants contested the consumer complaints on several grounds including that they had already filed a Civil Suit before the First Civil Judge at Alipore, much before filing of the consumer complaint seeking payment of the balance consideration etc. This was also the allegation of the applicants/OPs that the complainants had illegally occupied the aforesaid flat.

4. As far as pendency of the Civil Suit is concerned, it is a settled legal preposition that a consumer complaint being an additional remedy available to a consumer, pendency of a Civil Suit does not come in the way of the adjudication of the said complaint even if the issue involved in the consumer complaints is identical to the issue involved in the Civil Suit. Therefore, the order of the State Commission dismissing IA No.289 of 2017 filed by the appellants cannot be faulted with.

5. As far as the appointment of an Engineer as a Court Commissioner is concerned, as noted earlier, the case of the complainants/respondents is that there was a shortfall of area to the extent of 56 sq. ft. and there was no clear ingress and egress passage for their car. The appointment of an Engineer as a Court Commissioner to measure the area and to report on the ingress and egress passage for the car of the complainants was also fully justified in order to arrive at a correct finding in respect of the aforesaid issue.

6. The State Commission also permitted the complainants to deposit a sum of Rs.10,10,000/- to the complainants, as the balance amount payable by them to the appellants as the sale consideration. The aforesaid deposit demand does not cause any prejudice to the applicants/OPs in any manner since the consumer complaint is still pending before the State Commission and all

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the issues raised in the written version filed by the appellants will have to be adjudicated by the State Commission at the time of final disposal of the complaint. 7. For the reasons stated hereinabove, I find no merit in the appeal which is accordingly dismissed with no order as to costs.
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