State Consumer Disputes Redressal Commission
Sri Raju Chhetri vs Sri Sudipto Neogi & Ors. on 28 January, 2020
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Interlocutory Application No. IA/209/2019 ( Date of Filing : 07 Mar 2019 ) In First Appeal No. A/538/2018 (Arisen out of Order Dated 18/05/2018 in Case No. Ea/23/2016 of District South 24 Parganas) 1. Sri Raju Chhetri Prop., M/s. R.S. Construction, S/o Lt. Bhuban Chhetri, 10/47, Netaji Nagar,P.S.- Patuli, Kolkata -40. ...........Appellant(s) Versus 1. Sri Sudipto Neogi & Ors. S/o Saliendra Prasad Neogi, 1/A, Balu Hakkak Lane, Park Circus, P.S.- Karaya, Kolkata -700 092. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. Dipa Sen ( Maity ) MEMBER For the Appellant: Mr. Swarajit Dey, Advocate For the Respondent: Dated : 28 Jan 2020 Final Order / Judgement PER HON'BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant appeal under Section 27A of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the behest of Opposite Party NO.1/J.Dr NO. 1 Sri Raju Chhetri [proprietor of M.S. Construction (developer/builder)] to assail the order No. 30 dated 18.05.2018 passed by the District Consumer Disputes Redressal Forum, South 24 Parganas at Baruipur (in short, Ld. District Forum) in Execution Application no. 23/2016 raising out of consumer complaint No. 53/2016.
Seen the materials on record and considered the submission advanced by Ld. Advocates for the appellant and respondent Nos. 1 and 2 respectively.
The respondent Nos. 1 and 2 being complainants lodged the complaint under Section 12 of the Act before the Ld. District Forum on the allegation of deficiency of services against the appellant/developer and the landowners in a dispute of housing construction with prayer for several reliefs, viz.- (a) to direct the Opposite Party No. 1/developer to deliver the possession of the flat on payment of balance consideration amount by the complainant; (b) to direct the Opposite Party No.1/developer to issue building completion certificate to the complainant; (c) to direct the Opposite Party No. 1 and also the Opposite Party Nos. 2 to 10 to execute the register deed of conveyance regarding the said flat in question to the complainant; (d) compensation for delay in handing over possession @ 18% per annum on the total consideration; (e) an order be passed against the Opposite Parties to pay interest at 18% p.a. for enrichment and utilization of complainant's money by the Opposite Parties; (f) compensation for negligence in service of Rs. 2,00,000/-; (g) an order be passed against the Opposite Parties to pay compensation of Rs. 2,00,000/- to the complainant for harassment and mental agony; (h) cost of the proceedings etc in respect of a flat measuring about 460 sq. ft. super built up area in a G+3 storied building lying and situated at premises No. 10/47A, Netaji Nagar, P.S.- Patuli, Kolkata- 700092, Dist- South 24 Parganas within the local limits of Ward No. 98 of Kolkata Municipal Corporation (KMC).
The said complaint was disposed of finally on 27.04.2015 with the following directions:
"That the case being CC No. 53 of 2015 be and the same has decreed ex parte against OPs with costs of Rs. 10,000/- payable by OP No.1. The OPs are directed to handover the possession of the property in question and to execute and register the deed of conveyance within 1 month from this date on payment of balance consideration amount by the complainants.
The OPs are also directed to provide Completion Certificate to the complainant within 1 month from this date.
The OP No. 1 is directed to pay Rs. 1,00,000/- to the complainants within 1 month from this date failing which, the entire amount of Rs. 1,00,000/-will carry interest @ 10% p.a. till realisation."
Admittedly, the against basic order, no appeal under Section 15 of the Act has been preferred. Therefore, the order passed by the Ld. District Forum has attained finality.
Due to non-compliance with the said order, the respondent Nos. 1 and 2 being decree holders put the basic order in execution. By order dated 02.01.2018 the Ld. District Forum confirmed handing over the possession of the flat in the third floor in place of ground floor and also confirmed registration of sale deed through the machinery of the Ld. District Forum.
The impugned order is set out below:
"J.Dr Raju Chhetri is produced from the Correctional Home.
Ld. Advocate of the J.Dr has filed a bail petition stating that J.Dr. Wants to pay Rs. 10,000/- in cash today and he will undertake to pay Rs. 10,000/- per month on instalment basis.
But it has been elaborately discussed in order No. 29 dated 16.05.2018 how the J.Dr. Raju Chhetri not only cheated the D.Hr. but for his bad activities the land owners have to stay on the street leaving their possession to the D.Hr.-1.
Ld. Advocate of the D.Hr. appeared and filled a statement stating Rs. 1,46,410/- is due from the J.Dr. In this circumstances the bail prayer of the J.Dr. is rejected. He is remanded to J.C and to produce on 31.05.2018."
The materials on record clearly speaks that the appellant/J.Dr fled away to Nepal for which the police had to face various problems to execute the warrant against the appellant and in this regard they had to obtain permission from the Nepal Embassy. Ultimately, the appellant has been arrested from Mandarmani Costal area in the district of Purba Medinipur. The impugned order clearly speaks that an amount of Rs. 1,46,410/- was due and payable by J.Dr. No. 1/appellant to the respondent Nos. 1 and 2/D.Hrs.
In that perspective, the Ld. District Forum was quite justified in passing the order impugned because a court should not only pass an order but to see its order is being obeyed, executed and carried out in its letter and spirit, more particularly in a consumer complaint where a Forum constituted under the Act is under obligation to create confidence in the mind of consumers from unnecessarily harassment. Therefore, we do not find any merit in the appeal. In other words, the appeal being harassing one, it is liable to be dismissed with costs.
So far as IA No. 209/ 2019 is concerned, where the appellant has raised technical point that two of the respondents namely Dulal Das and Usha Mondal died on 27.05.2015 and 01.08.2015 respectively but they were not impleaded as parties does not appear to be correct because on perusal of order No. 7 dated 17.10.2016 it appears that excepting J.Dr No. 2 intimation upon all the J.Dr have been duly served. So far as J.Dr No. 2 the publication was made through a daily leading Newspaper and there is reflection to that effect. In order No. 10 dated 07.01.2017. Considering the above, the application being IA/209/2019 being devoid of any merit, is liable to be rejected.
After giving due consideration to the submission made by the Ld. Advocates appearing for the parties it appears to us that the appeal has been filed just to cause for unnecessary delay of execution of the order and as such instant appeal being harassing one is liable to be dismissed with costs of Rs. 20,000/-.
In view of the above, the appeal is dismissed on contest with costs of Rs. 20,000/- to be paid by the appellant/J.Dr No. 1 to the respondent Nos. 1 and 2/D.Hrs.
The IA No. 209 of 2019 is also rejected.
The parties are directed to appear before the Ld. District Forum on 18.02.2020 and on that date the appellant/J.Dr No. 1 must make compliance including payment of balance consideration amount and to make payment of costs of Rs. 20,000/- to the D.Hr in default, the Ld. District Forum shall proceed to dispose of the execution case in accordance with law.
The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Baruipur for information.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. Dipa Sen ( Maity )] MEMBER