w w w . L a w y e r S e r v i c e s . i n



Tapan Kumar Saha v/s Susmita Bhowmik & Others


Company & Directors' Information:- TAPAN INDIA PRIVATE LIMITED [Active] CIN = U24233UP2015PTC073525

Company & Directors' Information:- TAPAN INDIA PRIVATE LIMITED [Active] CIN = U93000UP2015PTC073525

Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

    First Appeal No. A/633/2016

    Decided On, 06 June 2018

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

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

    For the Appellant: Ayan Kansabanik , Advocate. For the Respondent: S.S. Pramanick, Advocate.



Judgment Text

The present appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of opposite party no. 1/developer against the intending purchaser/complainant (respondent no. 1) and the ICICI Home Finance Company Limited and its Agent i.e. opposite party nos. 2 & 3/respondent nos. 2 & 3 to impeach the final order being Order No. 67 dated 15th June, 2016 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit – I (in short, ‘Ld. District Forum’) in Consumer Complaint No. 255 of 2005. By the impugned order, the Ld. District Forum allowed the complaint lodged by respondent no. 1 under Section 12 of the Act on contest against the opposite party no. 1/ appellant and dismissed against opposite party nos. 2 & 3 with a direction upon the opposite party no. 1/appellant to pay a sum of Rs. 11,17,500/- only to the complainant/respondent no. 1, to pay compensation of Rs. 1,00,000/- for harassment and mental agony and litigation cost of Rs. 50,000/- within 30 days from the date of order otherwise the amount shall carry interest @ 10% p.a. from the date of communication of the order till its realisation.

The respondent no. 1 herein being complainant lodged the complaint before the Ld. District Forum asserting that she applied for house building loan to the opposite party no. 2/respondent no. 2 through its agent opposite party no. 3/respondent no. 3 and a sum of Rs. 10.24 lakh was sanctioned. The opposite party no. 3 told the complainant that O.P. No. 1 is an approved promoter by O.P. No. 2 Bank. On 19.08.2003 the O.P. No. 3 took the complainant’s husband to Ghola at Sodpur under Panihati Municipality and introduced the complainant’s husband to opposite party no. 1. Being allured, on 25.08.2003 the complainant entered into an agreement with the opposite party no. 1 to purchase of one residential flat measuring about 1000 sq. ft. plus 20% super built-up area on the top floor in a G+3 storied building named ‘Jamdani House’ under Mouza + P.S.- Ghola, Dist.- North 24 Parganas within the local limits of Panihati Municipality at a total consideration of Rs. 12,50,000/-. The complainant has stated that on the date of agreement she paid Rs. 2,00,000/- to opposite party no. 1 by cash. In the agreement it was stipulated that the opposite party no. 1 will deliver the subject flat within three months on payment of balance consideration amount. On 30.08.2003 a cheque amounting to Rs. 7,67,500/- was handed over to O.P. No. 1 at the address of O.P. No. 3. The complainant has also paid a sum of Rs. 1,50,000/- on 24.09.2003 for earlier completion of the flat. However, on inspection it was found that the construction was not done as per sanctioned plan obtained from Panihati Municipality and further found that no car parking space has been provided on the ground floor in the said building. On 23.02.2004 complainant wrote a letter to O.P. No. 1 requesting him to refund the money as construction work was not done pursuant to the agreement and sanctioned building plan obtained from Panihati Municipality. However, prayer of complainant remained unattended. Hence, respondent no. 1/complainant lodged the complaint before the Ld. District Forum with prayer for direction upon the opposite party no. 1/appellant to refund the loan amount of Rs. 7,67,500/- paid to him directly by opposite party no. 2 on 30.08.2013 by cheque and Rs. 3,50,000/- paid by him in cash to opposite party no. 1 with interest, compensation of Rs. 1,00,000/- and litigation cost etc.

The opposite party no. 1 by filing a written objection resisted the claim of the complainants by stating that the Ld. District Forum had no territorial jurisdiction to entertain the complaint as the office or resident of O.P. No. 1 is lying and situated within the district of North 24 Parganas and stated that complainant had never paid Rs. 2,00,000/- at the time of execution of agreement for sale or Rs. 1,50,000/- as an amount in advance. However, the opposite party no. 1 has admitted that he received one cheque of Rs. 7,67,500/- from ICICI Bank. The opposite party no. 1 has also stated that the husband of the complainant has taken Rs. 50,000/- plus 20,000/- aggregating Rs. 70,000/- from him as loan due to paucity of fund. The opposite party no. 1 has categorically stated that he was ready and willing to execute the Deed in favour of the complainant and as such the complaint should be dismissed.

Respondent nos. 2 & 3/Opposite Party nos. 2 & 3 did not appear to contest.

After assessing the materials on record, Ld. District Forum by the impugned order allowed the complaint with certain directions as indicated above. To assail the said order, the opposite party no. 1 has come up in this Commission with the present appeal.

Undisputedly, on 25.08.2013 respondent no. 1/complainant had entered into an agreement with the appellant/opposite party no. 1 to purchase one residential flat on the top floor measuring about 1000 sq. ft. plus 20% super built-up area along with car parking facilities as per sanctioned plan along with proportionate share of land in a G+3 storied building named ‘Jamdani House’ on a piece of land measuring about 4 cottahs 43 sq. ft. in R.S. Plot No. 75 corresponding to R.S. Khatian No. 344 under Mouza + P.S.- Ghola, Dist.- North 24 Parganas within the local limits of Panihati Municipality at a total consideration of Rs. 12,50,000/-. Though the opposite party no. 1 denied the factum of payment of Rs. 2,00,000/- by cash but agreement for sale dated 25.08.2003 simply indicates that the appellant/opposite party no. 1 has received the said amount and the payment schedule of the agreement for sale dated 25.08.2003 clearly speaks the same. It is also evident that on 24.09.2003 the appellant/opposite party no. 1 has also received another sum of Rs. 1,50,000/- from respondent no. 1/complainant towards advance of the flat and issued a receipt to that effect by putting his signature. Therefore, it becomes quite clear that the appellant has received Rs. 2,00,000/- by cash from the respondent no. 1 on the date of agreement for sale i.e. on 25.08.2003 and also a sum of Rs. 1,50,000/- by cash on 24.09.2003 from the respondent no. 1 aggregating to Rs. 3,50,000/- by cash. The appellant himself in his written version has admitted that he has received Rs. 7,67,500/- by an A/c Payee Cheque issued by ICICI Bank (respondent no. 2). Therefore, the evidence on record and the admission of the appellant clearly speaks that he has already received in total Rs. 11,17,000/- from the respondent no. 1 as part consideration amount towards the total consideration amount of Rs. 12,50,000/- for the subject flat. It has not been denied by the respondent no. 1/complainant that complainant’s husband has received Rs. 50,000/- and Rs. 20,000/- on two occasions on 16.09.2003 and 20.09.2003 aggregating to Rs. 70,000/- and if the said sum is deducted, it would be quite clear that for the purpose of purchase of the flat, respondent no. 1/complainant had paid a total sum of Rs. 10,47,000/- towards the total consideration of Rs. 12,50,000/-.

Mr. Prabir Basu, Ld. Advocate for the complainant has submitted that the order under challenge should not have been passed by the Ld. District Forum for want of territorial jurisdiction. To expand his submission, he submitted that the opposite party no. 1/appellant is a resident of North 24 Parganas and he is carrying on business at North 24 Parganas and as such the instant complaint should have been filed before the Ld. District Forum of North 24 Parganas. To support his argument he has placed reliance to a decision passed by this Commission dated 11.09.2017 in RP/72/2017 [The Director, Club 7 Holidays Ltd. – vs. – Shri Sisir Kumar Hati & Ors.].

Per contra, Ld. Advocate for the respondent no. 1 contradicted the submission of Ld. Advocate for the appellant and contended that the respondent no. 2 ICICI Home Finance Company Limited (respondent no. 2) is a unit of ICICI Bank and acting as a duly constituted attorney of ICICI Bank Limited in respect of the project of the appellant and office of ICICI Home Finance Company Limited is situated at Sarat Bose Road, Kolkata 700020 within the jurisdiction of Ld. District Forum and as such when part cause of action has arisen out within the jurisdiction of the Ld. District Forum, question of lacking of territorial jurisdiction does not arise.

For appreciation of the matter, it would be worthwhile to reproduce the provision of Section 11(2) of the Act which reads as under:

'(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction, -

a. the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or

b. any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or

c. the cause of action, wholly or in part, arises.]'

The foregoing provision makes it quite clear that the complaint can be filed before the Ld. District Forum within whose jurisdiction opposite party(s) resides, or carries on business or has a branch office or personally works for gain. It is further provided that the complaint can be filed in a place, before a Forum, where any of the opposite party(s) actually and voluntarily resides etc. and personally works for gain.

It is manifest from the statement of ‘Objects and Reasons’ and the Scheme of the Act that its main objective is to provide for better protection of the interests of the consumer. To achieve this purpose, a cheaper, easier, expeditious and effective redressal mechanism is provided in the Act by establishing quasi-judicial Forums with wide range of powers vested upon them. Therefore, having due regard to the scheme and purpose sought to be achieved, viz.- better protection of interests of the consumer, the provisions of the Act have to be given purposive construction in order to achieve the object behind the legislation of the Act. The materials on record reveal that the respondent no. 2/opposite party no. 2 is carrying on its business at Central Plaza, 4th Floor at Premises No. 2/6 Sarat Bose Road, P.S.- Bhawanipore, Kolkata – 700020 which falls within the jurisdiction of the Ld. District Forum where the proceeding was held. The respondent no. 1/complainant has obtained loan from respondent no. 2 and appellant/opposite party no. 1 was an approved promoter by respondent no. 2/opposite party no. 2. Therefore, when the office of Opposite Party No. 2 is lying and situated within the jurisdiction of the Ld. District Forum it cannot be said that part cause of action in accordance with Section 11(2)(c) of the Act did not arise within the jurisdiction of the Ld. District Forum. The referred decision in the case of The Director, Club 7 Holidays Ltd. (supra) has no manner of application in our case because in that case the complaint was lodged before the Ld. District Forum at Howrah simply on the ground that a cheque in the name of Director of Club 7 Holidays Ltd. was issued from a Bank of Howrah. In that perspective, it was held that mere remittance of some amount through a Bank of Howrah does not create territorial jurisdiction of a District Forum. Therefore, the referred decision has no manner of application in our case. In this regard, observation of the Ld. District Forum cannot be faulted with because the Ld. District Forum has observed – 'From the materials on record, we find that the said cheque issued by O.P. No. 1 was handed over to the Bank Direct to O.P. No. 1 at Central Plaza, 4th Floor at Premises No. 2/6, Sarat Bose Road, Kolkata – 700020 within the jurisdiction of this Forum. It is settled principle of law that for any contract where two Courts have jurisdiction the choice of Forum is with the complainant. In this case the payment was made by cheque and as such cause of action arose partly where the cheque was issued and partly where it was honoured'.

The observation made by the Ld. District Forum does not appear to contradict with the object behind the legislation of the Act. In a landmark decision reported in 1994 SC 787 (Lucknow Development Authority – vs. – M.K. Gupta] the Hon’ble Apex Court has specifically opined that the provisions of the Act are to be construed in favour of the consumers, to achieve purpose of enactment, as it is a socially benefit oriented legislation. Taking into consideration the facts and the proposition of law, I do not find any shortcoming in the observation of the Ld. District Forum that the Ld. District Forum has territorial jurisdiction to try the same as the cause of action partly arose within the jurisdiction of the Ld. District Forum.

The agreement between the appellant and respondent no. 1 dated 25.08.2003 h

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as not been materialised. Therefore, only option remains for appellant/opposite party no. 1 to refund the amount received by him. The Ld. District Forum has passed an order directing the appellant/opposite party no. 1 to pay a sum of Rs. 11,17,500/- ignoring the fact that the appellant/opposite party no. 1 has already refunded Rs. 70,000/- to the respondent no. 1/complainant as such a sum of Rs. 10,47,500/- is still due and payable by the appellant/opposite party no. 1 in favour of respondent no. 1/complainant. Considering the mental agony and harassment suffered by the respondent no. 1/complainant, I think the compensation of Rs. 1,00,000/- awarded by the Ld. District Forum appears to be justified. However, the imposition of litigation cost of Rs. 50,000/- appears to be on higher side which should be reduced to Rs. 10,000/-. With the above discussion, the impugned order is modified to the extent that the appellant/opposite party no. 1 shall refund Rs. 10,47,500/- plus compensation of Rs. 1,00,000/- and litigation cost of Rs. 10,000/- aggregating to Rs. 11,57,500/- positively within 30 days from date otherwise the amount shall carry interest @ 9% p.a. from the date of order till its realisation. With the above observations and directions the instant appeal stands disposed of.The Registrar of the Commission is directed to send a copy of the order along with L.C.R. to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit – I for information.
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