At, National Consumer Disputes Redressal Commission NCDRC
By, THE HONOURABLE MR. JUSTICE AJIT BHARIHOKE
By, PRESIDING MEMBER & THE HONOURABLE MRS. REKHA GUPTA
For the Petitioner: Sanjoy Kr. Ghosh along with Barun Prasad, Advocates. For the Respondents: Prabir Kumar Ghosh, Advocate.
Ajit Bharihoke, Presiding Member
1. This revision is directed against the order of the West Bengal State Consumer Disputes Redressal Commission, Kolkata (in short, 'the State Commission') dated 14.2.2013 vide which the appeal preferred by the petitioners/opposite parties against the order of the District Forum was dismissed.
2. Briefly stated, facts relevant for the disposal of the revision petition are that the complainant being the owner of a piece of land situated at Holding No.43/C, Dr. J.R. Dhar Road within the municipal limits of Dum Dum, Kolkata, entered into a development agreement with the opposite parties/petitioners on 29.5.2014. As per the agreement, the petitioners/opposite party was to construct multi-storey building on the aforesaid land of which certain portion was to be delivered to the complainant on completion of the construction. The aforesaid development agreement was modified by a supplementary agreement dated 20.4.2008 whereby the owner’s allocation of the building was agreed to be increased as per the details given in Schedule-B to the supplementary agreement. It is the case of the complainant that the opposite parties after completing the construction of the building have failed to deliver the possession of the owner’s allocation portion of the building to the complainant.
3. The petitioners/opposite parties on being served with the notice of the complaint filed written statement denying the allegations made in the complaint. It was pleaded that as per the supplementary agreement the complainant was supposed to pay a further sum of Rs.1,56,000/- on account of extra area allotted to the complainant. On completion of building intimation was given to the complainant to take possession of his portion of the building on payment of Rs.1,56,000/-. The complainant, however, failed to make the balance payment. Consequently, the opposite party did not deliver the possession of the owner’s allocation of the project to the complainant. The petitioners/opposite parties also pleaded that the complainant, however, forcibly taken possession of owner’s allocation of the building without the consent of the petitioners.
4. The District Forum on consideration of the pleadings and evidence allowed the complaint and directed the petitioners/opposite parties as under: -
'O.P. Nos. 1 to 4 are directed to handover the peaceful possession of Flat No.A & C and the shop of the ground floor as described in the schedule B to the complainant within a fortnight.
O.P. Nos. 1 to 4 are also directed to pay a sum of Rs.20,000/- towards compensation and Rs.5,000/- towards cost of litigation to the complainant at the same time.
In the event of non compliance of this order the complainant shall be at liberty to execute this order in accordance with the provisions of law.
Let copies of this order be supplied to the parties free copy, when applied for.'
5. Being aggrieved by the order of the District Forum, the opposite parties preferred an appeal before the State Commission.
6. The main ground taken in appeal is reproduced as under:
'For that Ld. Forum should have considered that the respondent / complainant took possession of the flats and shop room without the consent of the appellants/opposite parties and without payment of Rs.1,56,000/- and now came up before the Ld. Forum with such false allegations against the appellants/opposite parties about non-delivery of flats and shop room. The respondent / complainant submitted that the appellants did not deliver possession of the two flats and one shop room but failed to produce any documents to show that they did not receive the same from the appellants rather on the contrary the appellants submitted that the respondent/complainant took possession of the flats and shop and installed electric meter in their names and inducted their relative namely Sri Chiradeep Kundu who is residing in one flat. The respondent/complainant in their evidence did not deny and dispute such statement made by the appellants/opposite parties therefore the same remains true.'
7. Learned counsel for the petitioners has taken us through the impugned order and submitted that impugned order is not sustainable because it has not addressed the above noted ground taken in appeal. It is submitted that State Commission ignored the fact that respondent complainant had entered into an agreement dated 31.05.2004 pertaining to the subject Owner’s allocation of the property wherein the complainant had agreed to execute the registered gift deed of conveyance in favour of one Chiradip Kundu. Learned counsel has also drawn our attention to the questionnaire in the nature of cross examination put to the complainant, particularly the question no.24 and its response on affidavit given by the complainant. Question no.24 called upon the complainant to confirm the fact that Chiradeep Kundu is residing in one flat at premises no.43/C, Dr. J R Dhar Road, Kolkata. The complainant has responded to the above question by saying that he has no knowledge of such person Chiradeep Kundu at all residing at the aforesaid premises. It is submitted that State Commission ignored the fact and the above answer is highly vague when undisputedly the complainant had entered into the above referred agreement dated 31.05.2004 with Chiradeep Kundu from which it can be safely inferred that Chiradeep Kundu was known to the complainant.
8. Learned counsel for the respondent complainant on the contrary has argued in support of the impugned order.
9. On careful consideration
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of record, we find merit in the contention of the petitioners that the impugned order is not sustainable because it has failed to answer the basic ground of appeal against the impugned order. Thus, in our view, impugned order violates the principles of natural justice as such, cannot be sustained. 10. In view of the discussion above, appeal is allowed, impugned order is set aside and matter is remanded back to the State Commission with direction to hear the appeal afresh and decide all the relevant pleas of the appellants on merit. 11. Parties to appear before the State Commission on 14th July, 2017.