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 Party to impeach the final order dated 29.08.2018 passed by the District Consumer Disputes Redressal Forum, Hooghly at Chinsurah (in short, ‘Ld. District Forum’) in Consumer complaint No. 88 of 2016. By the impugned order, Ld. District Forum allowed the complaint on contest with the following directions:

“The OP is directed to refund the money of Rs. 8,00,000/- along with interest @ 9% since the date of payment till realisation to the complainant by issuing A/c. payee cheque. The OP is also directed to pay litigation cost of Rs. 5000/- and Rs. 5000/- for causing harassment and mental pain and agony. The OP is directed to comply with the above order by 60 days from this date, failing which the complainant is at liberty to execute the order through this Forum.

In the event of failure to comply with the order the OP will pay cost @ Rs. 50/- for each days delay if caused on expiry of the aforesaid 60 days by depositing the accrued amount if any, in the Consumer Legal Aid Account.”

Respondent herein being complainant lodged the complaint under Section 12 of the Act before the Ld. District Forum asserting that in order to purchase one residential flat he came in contact with the OP/developer to purchase of a residential flat measuring about 652 sq. ft. on the 2nd floor in a building christened “Asha Niketan-4” with undivided proportionate share of land and common areas lying and situated at Municipal Holding No. 19/A, D.J. Bye Lane, P.S.- Uttarpara, Dist- Hooghly within the local limits of Ward No. 20 of Konnagar Municipality at a total consideration of Rs. 9,00,000/-. The complainant has stated that he has already paid Rs. 8,06,000/- to the Opposite Party as part consideration amount towards the said total consideration amount but the Opposite Party did not keep his promise in handing over the possession of the flat and to execute the sale deed. Thereafter, the complainant approached the Consumer Affairs Department and on 16.03.2016 a tripartite meeting was held and in the said proceeding, OP promised to refund the entire deposited the amount i.e. Rs. 8,06,000/-. However, OP did not keep his promise. Hence, the respondent lodged the complaint before the Ld. District Forum with prayer for refund of the amount along with interest etc.

The appellant/OP by filing a written version has stated that the consideration money was settled at Rs. 12,75,000/- and not Rs. 9,00,000/-. The OP has stated that as the complainant did not pay the entire amount as per agreement, he sent a legal notice cancelling the said agreement and asked the complainant to receive the payment after deduction of 25% of the deposited amount for damages due to non-performance of part of contact. The OP has further stated that he is ready to settle the matter amicably by refunding the entire deposited amount but not agree to pay any interest as the complainant violated the terms and conditions of the agreement.

After assessing the materials on record, the Ld. District Forum by impugned order allowed the complaint with certain directions upon the Opposite Party, as indicated above. To assail the said order, the OP has come up in this commission with the present appeal.

During hearing of the appeal, none appears for respondent/complainant. In fact, despite service of notice the respondent did not appear. We have heard Mr. Amarnath Sanyal, Ld. Advocate with Mr. Soumik Ganguly, Ld. recorded Advocate for the appellant and scrutinised the materials on record.

Undisputedly, the appellant is proprietor of King Construction and running the business from premises No. 329, Criper Road, P.S.- Uttarpara, Dist- Hooghly. The respondent being a resident of Domjur, Dist- Howrah came in contact with the appellant to purchase of a residential flat measuring about 652 sq. ft. on the 2nd floor in a building christened “Asha Niketan-4” with undivided proportionate share of land and common areas lying and situated at Municipal Holding No. 19/A, D.J. Bye Lane, P.S.- Uttarpara, Dist- Hooghly within the local limits of Ward No. 20 of Konnagar Municipality at a total consideration of Rs. 9,00,000/-. The respondent has categorically stated that he has already paid Rs. 8,06,000/- as part consideration amount towards the total consideration amount of Rs. 9,00,000/-. However, the receipts of deposited by the respondent before the Ld. District Forum speaks that he has paid Rs. 8,00,000/- as part consideration amount.

The appellant took a plea in the written version that the consideration money was not fixed at Rs. 9,00,000/- but Rs. 12,75,000/- and further stated that the complainant did not pay the entire amount as per terms and conditions of the agreement but did not disclose how much amount has been paid by the respondent. The appellant has made an evasive denial that the respondent has not paid Rs. 8,06,000/- but did not take any pain to state the actual amount received by him. In any case, when the respondent has produced money receipts of Rs. 8,00,000/- before the Ld. District Forum, it shall be presumed that the respondent has already paid Rs. 8,00,000/- as part consideration amount to the appellant/OP.

The appellant in paragraph 6 of the written version has stated that he was ready to settle the matter amicably by refunding the entire deposited amount with interest. However, as the respondent violated the terms and conditions of the agreement by not giving money as per agreement as such question of giving interest over the amount does not arise.

Ld. Advocate for the appellant has submitted that the Ld. District Forum did not follow the procedure in recording evidence enunciated by the Hon’ble Supreme Court in the case reported in (2002) 6 SCC 635 (Dr. J.J. Merchant and Ors –vs- Shrinath Chaturvedy). He has further referred a judgment of this commission being A/1182/2017 where it has been held that where complaint is disposed of without reception of evidence, the impugned order should be set aside and the case should be remitted on remand for appreciation of the evidence.

Upon hearing the Ld. Advocate for the appellant it would reveal that the Ld. District Forum has accepted the statement against the written version filed on behalf of OP as evidence on affidavit. The said statement is supported by an affidavit made by the complainant/respondent and when the complainant did not raise objection regarding acceptance of the same as affidavit and further the appellant/OP did not raise any objection before the Ld. District Forum regarding reception of the same as evidence on affidavit, the authenticity of the said statement cannot be challenged in this appellate stage.

What we find from the record is that by filing an application dated 06.02.2017 the appellant as OP has prayed for treating written version as evidence of OP. Relying upon the said prayer, the Ld. District Forum by Order No. 12 dated 11.08.2017 allowed the prayer of the appellant/OP in accepting the written version as evidence on affidavit by OP. Therefore, the decision in the case of Dr. J.J. Merchant (supra) or the decision of this commission in A/1182/2017 (Sree Maa Construction and two Ors. –vs- Rockwell Borrison) have no manner of application in fact and circumstances of the present case.

Considering the above, we do not find any shortcoming or loophole in the impugned order by directing the appellant to refund the amount of Rs. 8,00,000/- along with prevalent bank interest as per Section 3(1) of the Interest Act, 1878 in granting an interest @ 9% from the date of payment till realisation. The Ld. District Forum has also committed no error by granting compensation of Rs. 5,000/- for harassment and mental agony and also Rs. 5,000/- as litigation costs.

However, the Ld. District Forum had no reason to impose costs of Rs.50/- for each days delay for failure on the part of the appellant to pay the amount within 60 days. On perusal of the petition of complaint, we do not find any averment for such claim made by the respondent/complainant or the appellant/OP had any opportunity to meet such claim. In a decision reported in (2015) 1 SCC 429 [General Motors (India) Pvt. Ltd. –vs- Ashok Ramnik Lal Tolat and Anr] the Hon’ble Supreme Court has observed:

“The court is conscious that having regard to the laudable object of the social legislation to protect the interest of consumers, liberal and purposive interpretation has to be placed on the scheme of the C P Act avoiding hypertechnical approach. At the same time, fair procedure is the hallmark of every legal proceeding and affected party is entitled to be put to notice of the claim which such affected party has to meet.”

In all fairness, the respondent/complainant has to make an averment and make a claim. However,

neither there is any averment in the complaint nor there is any claim to that effect and as such the Ld. District Forum had no occasion to pass an order that in the event of failure on the part of opposite party/appellant to pay the awarded amount within 60 days, the appellant/OP shall pay Rs. 50/- for each days delay. Therefore, the order for imposition of costs of Rs. 50/- for each days delay being contrary to the principles of natural justice, the said part of the order is liable to be set aside. For the reasons aforesaid, the impugned final order is modified only to the extent that the appellant/Opposite Party shall have no liability to pay Rs. 50/- per day for each days delay. However, the other part of the order is maintained. With the above observations, the instant appeal stands disposed of. The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Hooghly at Chinsurah for information.