National Consumer Disputes Redressal
Jamil Ahmed Farooqui vs Md. Anwar Ali on 23 September, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 481 OF 2015 (Against the Order dated 20/03/2015 in Complaint No. 176/2012 of the State Commission West Bengal) 1. JAMIL AHMED FAROOQUI S/o Late Md.Farooqui, Residing at: 70, Topsia Road,(South), Kolkata-700046 West Bengal ...........Appellant(s) Versus 1. MD. ANWAR ALI S/o Late Md. Saheb Jan Ali, Residing at: 71/17, Topsia Road, Kolkata-700 046, West Bengal ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
For the Appellant : Mr. Srijan Nayak & Mr. Vikas
Nautiyal, advocates For the Respondent : Mr. Sanjoy Kr. Ghosh, Ms. Rupali
S. Ghosh & Mr. Debnath Sah, Advocates
Dated : 23 Sep 2015 ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This appeal has been filed by the appellant against the order dated 20-03-2015 passed by the Learned State Commission in Complaint No. 176 of 2012 - Md. Anwar Ali Vs. Jamil Ahmedi Farooqui, by which application for amendment was allowed.
2. Complainant/respondent filed complaint before State Commission seeking following reliefs:--
a) An appropriate order for delivery of possession of the said flat and garage in favour of the complainant;
b) For Execution and registration of the Deed of conveyance in favour of the complainant in respect of scheduled mentioned flat and garage within a specific period.
c) For a direction upon the opposite party not to claim or demand any excess amount beyond the agreed rate per square feet.
d) For appropriate restraining order against the opposite party from transferring alienating the said flat and garage to any stranger purchases and any person or persons.
e) A direction to produce the completion plan and occupancy certificate by the opposite party. f) For compensation to the tune of Rs.1,00,000/-. g) For cost. h) For any other relief/s
Opposite party/petitioner filed application and challenged maintainability of the complaint. Learned State Commission without formal proof of documents allowed complaint. Appeal filed by opposite party was allowed by this Commission vide order dated 19.09.2013 and matter was remanded back to learned State Commission to decide afresh in accordance with law. During pendency of proceedings, complainant filed application for various amendments in the complaint. Learned State Commission vide impugned order allowed complaint, against which this appeal has been filed along with application for condonation of delay.
3. Heard learned counsel for the parties finally at admission stage and perused the record.
4. As far delay in filing appeal is concerned, previously revision petitions used to be filed against miscellaneous orders, which provides limitation of 90 days but now appeals are to be filed against miscellaneous orders. There was delay of 60 days in filing appeal. In such circumstances, delay in filing appeal is condoned.
5. Learned counsel for the appellant submitted that as impugned order is not speaking order, appeal be allowed and matter may be remanded back to learned State Commission for deciding application by speaking order. On the other hand, learned counsel for the respondent submitted that order passed by learned State Commission is in accordance with law, hence appeal be dismissed.
6. Impugned order runs as under:--
"We have heard the submission made by both sides and perused the papers on record. It appears that in connection with MA 177 of 2013 this Commission held that the petition of complainant was not maintainable and the complaint was dismissed. The Hon'ble National Commission in F.A. No. 447 of 2013 was pleased to set aside the order passed by this Commission and directed this Commission to decide the case afresh in accordance with law. Thereafter the OP filed W.V. wherein it has been averred that 3rd party interest has been created. Under such circumstances, the Complainant has filed the instant Miscellaneous Application praying for incorporation of the prayer for refund of the consideration money already paid and for compensation. We are of the considered view that the amendment sought for is formal in nature.
The Miscellaneous Application 9 of 2015 is allowed."
7. Perusal of the aforesaid order reveals that no ground has been assigned for allowing application for amendment of complaint as aforesaid amendment is not formal in nature but it is very material. Not only this, learned counsel for the appellant submitted that application for amendment is not maintainable under Consumer Protection Act and aforesaid application has been filed after long delay.
8. As learned State Commission while deciding application has not considered any aspect and impugned order is not speaking order, it would be appropriate to set aside impugned order and remand the matter to learned State Commission to decide application by speaking order.
8. Consequently appeal filed by the appellant is allowed and impugned order dated 20-03-2015 passed by learned State Commission in Miscellaneous Application No. MA/9/2015 in Complaint No. 176 of 2012 - Md. Anwar Ali Vs. Jamil Ahmedi Farooqui is set aside and matter is remanded back to learned State Commission to decide application for amendment by speaking order after giving an opportunity of being heard to the parties.
......................J K.S. CHAUDHARI PRESIDING MEMBER