State Consumer Disputes Redressal Commission
Sri Alok Kr. Basu vs Sri Abhijit Das & Ors. on 10 June, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/461/2018 ( Date of Filing : 11 May 2018 ) (Arisen out of Order Dated 10/04/2018 in Case No. EA/147/2012 of District North 24 Parganas) 1. Sri Alok Kr. Basu S/o Lt. Anil Kr. Basu, 13/14, Bachaspati Para Road, Uttaryan Apartment, P.O. Talpukur, P.S. Titagarh, Dist. North 24 Pgs., Kolkata- 700 123. ...........Appellant(s) Versus 1. Sri Abhijit Das & Ors. S/o Lt. Arun Kr. Das, 4/1, G.C. Road, P.O. & P.S.- Rahara, Dist. North 24 Pgs., Kolkata- 700 118. 2. Sri Mihir Kr. Mukherjee(Since Deceased) Not applicable 3. Smt. Pampa Mukherjee Widow of Lt. Mihir Kr. Mukherjee, 16/20, Sadhu Mukherjee Road, 2nd Lane, P.O. Nona Chandanpukur, P.S.- Titagarh, Dist. North 24 Pgs., Kolkata- 700 118. 4. Smt. Chandrani Banerjee W/o Shrimanta Banerjee(D/o Lt. Mihir Kr. Mukherjee), Barasat Banerjeepara, P.O. & P.S. - Chandannagar, Dist. Hooghly, Pin- 712 136. 5. Sri Gopal Chandra Mukherjee S/o Lt. Hemanta Kr. Mukherjee, 41/1, K.N. Mukherjee Road, P.O. Talpukur, Kolkata -700 123. 6. Sri Mukul Kr. Mukherjee(Since Deceased) Not applicable 7. Sikha Mukherjee Widow of Lt. Mukul Mukherjee, 201(127), Karunamoyee Debi Rod, New plaza Apartment, P.O. Talpukur, P.S. Titagarh, Dist. North 24 Pgs., Kolkata -700 123. 8. Smt. Koyel Bandopadhyay W/o Sri Shibapada Bandopadhyay(D/o Lt. Mukul Mukherjee), 27, Hazra Road, Kolkata-700 026. 9. Sri Joy Mukherjee S/o Lt. Mukul Mukherjee, 201(127), Karunamoyee Debi Road, New Plaza Apartment, P.O. Talpukur, P.S. Titagarh, Kolkata -700 123. 10. Smt. Debika Mukherjee Widow of Lt. Siddhartha Deb Mukherjee, Karunamoyee Debi Road, opp. Ashutosh Medical Stores, P.O. Talpukur, Kolkata -700 123. 11. Chaitali Deb Roy W/o Sri Subrata Deb Roy, C/o Debika Mukherjee, Karunamoyee Debi Road, opp. Ashutosh Medical Stores, P.O. Talpukur, P.S. Titagarh, Kolkata -700 123. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Sri Biswadwip Sen, Advocate For the Respondent: Mr. Surajit Banerjee, Advocate Dated : 10 Jun 2019 Final Order / Judgement
Challenge in this Appeal under Section 27A of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is to the Order No.42 dated 10.04.2018 passed by the District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (in short, 'Ld. District Forum') in MA/205/2017 in Execution Application No.147/2012 arising out of CC/292/2010.
I have scrutinised the materials on record and considered the submission advanced by the Ld. Advocate for the Appellant as well as Respondent No.1.
Having heard the Ld. Advocates appearing for the contesting parties and on going through the materials on record it would reveal that the appellant herein being Complainant lodged a consumer complaint under Section 12 of the Act being CC/292/2010 against the Respondents before the Ld. District Forum with the allegation for deficiency in services on the part of them in a dispute of housing construction. The said complaint was allowed on contest with cost of Rs.5,000/- against respondent no.1 and ex-parte against the rest on 27.09.2012 with the following directions -
"OP No.1 is directed to complete the entire flat No.3(A) as described in the Schedule 'B' of the Agreement for Sale in between the complainant and OP No.1 dated 09.11.2009 after removing all obstruction and barricade of the said flat and common passage etc. within one month from the date of this order as per satisfaction of the complainant and as per agreement and sanctioned plan and submit by swearing by an affidavit before this Forum by 30.10.2012 and in this regard the complainant shall have to deposit Rs.9,60,000/- through bank draft and OP No.1 and other OPs jointly and severally deliver khas possession of the flat No.3(F) as described in the Agreement and to execute the Sale Deed in favour of the complainant positively by 30.10.2012.
In any case, if the above order is not complied with by the parties, in that case, OP No.1 shall refund a sum of Rs.1,40,000/- along with compensation of Rs.60,000/- (i.e. total Rs. 2,00,000/-) to the complainant for financial loss, harassment, mental pain and agony of complainant positively by 30.10.2012.
Further OP No.1 is directed to pay a penalty of Rs.50,000/- for adopting unfair trade practice for the purpose of selling the flats to stranger other than intended purchaser like complainant and the said amount shall be paid within 30.11.2012.
If OP No.1 disobeys the Forum's order deliberately and fails to comply within the above period, in that case for disobedience of Forum's order and for each day's delay, OP No.1 shall have to pay a damage @ Rs.20/- per day till full satisfaction of the decree".
Challenging the aforesaid order, the Respondent No.1 preferred an appeal being FA/556/2013 in this Commission but the said appeal was dismissed being barred by limitation with cost of Rs.5,000/-. Therefore, the order passed by the Ld. District Forum has attained finality.
Since the said order has not been complied with, the Complainant put the decree/order in execution being EA/147/2012. During pendency of the execution application, the respondent no.1 has deposited Rs.2,55,000/- including the amount of compensation, the amount of unfair trade practice and litigation cost. The appellant claimed withdrawal of Rs.1,15,000/- from the said amount. In that perspective, the Ld. District Forum has observed that the respondent no.1/J.Dr. No.1 has opted the second portion of the order for compliance, hence, the first portion of the order cannot be sustained. By the impugned order, the Ld. District Forum permitted the appellant/D.Hr. to withdraw the entire amount deposited by the respondent no.1 and further given liberty to the appellant to withdraw the amount of Rs.9,60,000/- from the office of the Ld. District Forum with a further direction upon the respondent no.1 to deposit of Rs.5,000/- along with payment of punitive damages.
It is well settled that once a person claimed refund of amount, he ceases to be a consumer. In the case beforehand, the appellant/D.Hr. claimed refund of the amount deposited by respondent no.1/J.Dr. which clearly indicates that the respondent no.1 exercised the second option and the appellant has concur the said option.
In that view of the matter, the impugned order being based on proper reasoning should not be interfered with.
Considering the above, the appeal is dismissed on contest. However, there will be no order as to costs in this appeal.
The impugned order being Order No.42 dated 10.04.2018 passed by the Ld. District Forum in MA/205/2017 arising out of EA/147/2012 is hereby affirmed.
The parties are directed to appear before the Ld. District Forum on 03.07.2019 to receive further order from the said authority.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas, Barasat for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER