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Sukla Chakraborty v/s Abed Alam & Another


Company & Directors' Information:- ALAM & CO LTD [Strike Off] CIN = U60210WB1946PLC014227

Company & Directors' Information:- S K CHAKRABORTY LTD [Strike Off] CIN = U74210WB1930PLC006630

    First Appeal No. A/704/2016

    Decided On, 24 January 2019

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SAMARESH PRASAD CHOWDHURY
    By, PRESIDING MEMBER

    For the Appellant: Manabendra Thakur, Advocate. For the Respondent: -------------



Judgment Text


The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of complainant to impeach the Judgement/Final Order dated 11.07.2016 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-II (for short, Ld. District Forum) in Consumer Complaint No. 589/2015. By the impugned order, the Ld. District Forum allowed the consumer complaint lodged by the Appellant under Section 12 of the Act on contest against O.P.No.1/Respondent No.1 and ex-parte against O.P.No.2/Respondent No.2 with certain directions like – (a) to execute the Sale Deed and register the same in favour of the Complainant/Appellant within 45 days from the date, (b) to refund an amount in respect of remaining 56 Sq.ft. area at the prevalent market rate; (c) to pay Rs.10,000/- as litigation cost and in case of failure of O.Ps to comply with the order, they shall have to pay penal damages of Rs.2,000/- per month till execution of sale deed.

The Appellant herein being Complainant lodged the complaint before the Ld. District Forum asserting that on 11.07.2013 she entered into an agreement with the OPs to purchase of a flat measuring about 900 sq.ft. on the 3rd floor in a building situated at M-263, Sukanta Nagar, Sector-IV, Salt Lake City, P.S. Bidhannagar, Kolkata-700 098, Dist North 24 Parganas at a total consideration of Rs.18,00,000/-. The complainant has stated that after much harassment, OP delivered possession of a flat measuring about 606 sq.ft. covered area or 727 sq. ft. super built up area on 21.03.2015. The complainant has stated that she paid to O.P. a total sum of Rs.13,34,800/- and Rs.1,80,000/-. Hence, the appellant being complainant lodged the complaint on the allegation of deficiency in services on the part of O.Ps with prayer for several reliefs, viz.- (a) to refund Rs.5,08,800/- along with interest at the rate of 10% p.a., (b) compensation of Rs.1,50,000/-, (c) litigation cost of Rs.10,000/- etc.

The Respondent No.1 being O.P.No.1 by filing written version has stated that the agreed price of the flat was Rs.13,20,000/- and she paid another sum of Rs.14,800/- for some extra work and subsequently the O.P. had sold the portion of 240 sq. ft. adjacent to the flat of the complainant to a different individual. According to O.P.No.1 the complaint being frivolous one, the same should be dismissed with cost.

After assessing the materials on record, the Ld. District Forum by the impugned Judgement/Final Order allowed the complaint with certain directions upon the OPs as indicated above. However, being dissatisfied with the award, the complainant has come up in this commission with the present appeal.

I have scrutinised the materials on record and considered the submission advanced by the Ld. Advocate for the Appellant. None appears for the Respondents at the time of hearing of the appeal.

Having heard the Ld. Advocate for the appellant and on going through the materials on record, it would reveal that the appellant had entered into an agreement to purchase of a flat measuring about 900 sq.ft super built up area at a total consideration of Rs.18,00,000/-. It is asserted by the appellant a flat measuring about 606 sq.ft. covered area equivalent to 727 sq.ft. super built up area has been handed over to her.

The possession letter dated 21.03.2015 speaks that the O.P.No.1/Builder handed over to the appellant a flat measuring about 606 sq.ft. covered area on the 3rd floor at premises no.M-263, Sukanta Nagar, Sector-IV, Salt Lake City, P.S. Bidhannagar, Kolkata-700 098.

Ld. Advocate for the appellant has submitted that the respondent actually delivered 503 sq.ft super built up area instead of 727 sq.ft. super built up area.

Needless to say, the parties are bound by the terms of agreement. Interestingly, the appellant has not filed the alleged agreement for sale or any subsequent agreement to ascertain the dispute, as alleged by the appellant. In all fairness, the appellant should not have withdrawn the vital piece of evidence like agreement for sale, which is the basis of the dispute. In that perspective, I have no other option but to draw an adverse presumption against the appellant. It is well settled that a person who seeks relief from a Court of Law, must produce all the relevant documents for proper adjudication of the matter. In absence of agreement for sale, it is quite difficult on the part of the Appellate

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Court to appreciate as to whether the Ld. District Forum has committed any error in arriving at a correct decision. Considering the above, I do not find any reason to interfere with the order impugned. Consequently, the appeal is dismissed. The impugned judgement/final order is hereby affirmed. The Registrar of the 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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