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M/s. Soumyaritu Construction & Others v/s M/s. Sma Laha & Others

    Revision Petition No. 94 of 2022
    Decided On, 13 September 2022
    At, West Bengal State Consumer Disputes Redressal Commission Kolkata
    By, THE HONOURABLE MR. JUSTICE MANOJIT MANDAL
    By, PRESIDENT & THE HONOURABLE MRS. SAMIKSHA BHATTACHARYA
    By, MEMBER
    For the Petitioners: Sayantan Ghosh, S. Dutta, Advocates. For the Respondents: None Appears.


Judgment Text
Manojit Mandal, President

This revision petition is directed against the order No. 11 dated 29/04/2022 passed by the Learned District Consumer Disputes Redressal Commission, Kolkata, Unit III (South) in connection with Complaint Case No. C.C./259/2020 thereby Learned District Commission was pleased to reject the maintainability application filed by the Revisionists / Petitioners.

The fact of the Complaint case is that Revisionists No. 1 to 4 and another as complainants filed the Complaint case being No. C.C./259/2020 praying for the following reliefs : -

“Under the facts and circumstances as stated hereinabove this Hon’ble Commission may be pleased to direct the opposite parties :-

“a) To deliver possession of Flat and Car Parking Space duly after completing entire construction work of the building at Premises No. 23, Parasar Road, Kolkata- 700 029 and execute and register necessary conveyance deed after receiving the balance consideration amount

Or;

Alternatively to refund the consideration amount of Rs.20,00,000/- paid by the complainant towards earnest money along with interest as stipulated in the agreement;

b) to pay Rs.15,00,000/- towards compensation for mental agony, harassment, tremendous hardships, misery, humiliation, damages and loss to the complainant.

c) to pay litigation cost Rs.1,50,000/-

d) And/or pass such other or further order/orders, relief/reliefs as this Learned Commission may deem fit and proper.”

The Revisionists / Petitioners entered appearance in this case and filed written version as well as a maintainability application. On 29/04/2022 after hearing both sides the said maintainability application filed by the Revisionists / Petitioners was rejected. Being aggrieved, the Revisionists / Petitioners have filed this revision petition.

Learned Advocate appearing for the Revisionist / Petitioners has submitted that Learned Commission below has passed an erroneous order by dismissing the maintainability petition on 29/04/2022 in connection with the Complaint case No. C.C./259/2020 filed by the Revisionists / Petitioners. He has further submitted that Learned Commission below has failed to appreciate the case and to come at a wrong judgment. He has further submitted that Learned Commission below failed to appreciate the fact that in the acknowledgement receipt dated 14/09/2018 it was written that an agreement for sale shall be executed within 15 days from the date of execution of the said acknowledgement receipt. Whereas from mere reading of the agreement for sale purportedly executed by and between the Complainant and Opposite party No. 1 that the agreement for sale has been executed on a prior date. He has further submitted that Learned Commission below failed to appreciate the fact that when the agreement cum acknowledgement was signed on 14/09/2018 wherein it was decided that the agreement for sale will be signed after 15 days for signing of the agreement cum acknowledgment is not possible to be conducted on 25/08/2018 which is prior to 14/09/2018. He has further submitted that Learned Commission below failed to appreciate the fact that agreement for sale dated 25/08/2018 is absolutely forged as it is impossible that the agreement being signed prior to 14/09/2018 when the agreement cum acknowledgement was signed. He has further submitted that Learned Commission below failed to appreciate the fact that no order can be obtained on the basis of a forged document. He has further submitted that Revisional Application should be allowed and the impugned order dated 29/04/2022 should be set aside.

Upon hearing the Learned Advocate appearing for the Revisionists / Petitioners and on perusal of the record and the Revisional Application, it appears to us that the Complainants have filed this case for direction upon the Opposite Parties to deliver possession of the flat and car parking space at premises No. 23, Parasar Road, Kolkata – 700 029 and to execute and register of deed of conveyance after receiving the balance consideration money or alternatively to refund the consideration amount of Rs.20,00,000/- (Rupees twenty lakhs) only paid by the Complainants as earnest money along with interest therein.

It appears to us that the agreement for sale executed on 28/05/2018 in respect of the flat and car parking space at 23, Parasar Road, Kolkata – 700 029 which is, in fact, was offered by the Developer subsequently to the Complainants in place of the flat agreed earlier at premises 20/1/5B, Ishwar Ganguli Street, P.S. Kalighat, Kolkata – 700 026 and by agreement cum acknowledgement receipt dated 14/09/2018 it was agreed between the Developer and the Complainants that in place of 20/1/5B, Ishwar Ganguli Street, P.S. Kalighat, Kolkata – 700 026 the flat at premises No. 23, Parasar Road, Kolkata – 700 029 would be delivered to the Complainants.

From the above it is clear that there could not be any agreement with regard to premises No. 23, Parasar Road, Kolkata – 700 029 before 14/09/2018. As per the terms of the agreement cum acknowledgement receipt it appears to us that the Developer agreed that he shall hand over the proposed flat at premises No. 23, Parasar Road, Kolkata – 700 029 within 15 months from the date of signing of the said agreement cum acknowledgement receipt.

From the record, it appears to us that payment of Rs.18,00,000/- (Rupees eighteen lakh) only has been made by the Complainants and the Revisionists / Petitioners have already acknowledged the same. It also appears to us that the Complainants have prayed for relief for direction upon the Revisionists / Petitioners to deliver possession and to execute and register the deed of conveyance in respect of the premises No. 23, Parasar Road, Kolkata – 700 029 or the Complainants have also prayed for refund of the sum paid by them as earnest money towards consideration money. Therefore, it appears to us at this stage it cannot be said that agreement for sale dated 25/08/2018 was forged as the same was executed prior to the agreement dated 14/09/2018. The said agreement for sale dated 25/08/2018 is forged or not that can be decided after taking of evidence of both sides. This apart, it appears to us that the Respondents / Complainants in the Complaint case have prayed for relief for refund of the money. So, the maintainable application can be considered after taking evidence of both sides.

The office has submitted report that this revisional application has been filed with a delay of 13 days. To explain the delay the Revisionists / Petitioners in para 3 of the condonation application have mentioned that Revisionist No. 3 was suffering from several ailments, as a result, he could not supply necessary documents and give proper instructions to the Learned Advocate for filing this Revisional Application. But in support of the case, the Revisionists / Petitioners have not filed any Medical Certificate to prove that the Revisionist No. 3 was suffering from several ailments. This apart, it also appears to us that except Revisionist No. 3 there are other Revisionists in this case. They use to collect the necessary papers and to supply the same to the Learned Advocate for filing of this Revisional Application. There is no whisper in the condonation application about the other Revisionists. Therefore, it may be concluded that the Revisionists / Petitioners have failed to explain the cause of delay in filing this instant Revisional Application. So, the cause of delay in filing revisional application has not been explained properly.

In view of the above observations and on the basis of above facts and circumstances

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, we are of the view that Learned District Commission has acted legally in not allowing the maintainability application filed by the Revisionists / Petitioners. So, the order dated 29/04/2022 passed by the Learned District Commission below is legal and be sustained. Therefore, we are of the view that there is nothing to interfere with the impugned order. So, the Revision Petition is without any merit. It is, therefore, dismissed with cost of Rs.5,000/- (Rupees five thousand) only to be paid by the Revisionists / Petitioners to the S.C.W.F. The Revisionists /Petitioners are directed to pay such cost within 15/09/2022. 12. The Revisionists / Petitioners are directed to show the money receipt before the Learned District Commission below. 13. Let a copy of this order be sent down to the Learned Court below at once.
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