State Consumer Disputes Redressal Commission
Phalguni Das vs Tapas Dutta on 4 February, 2011
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 CASE NO. MA-05/11 in CC/87/09 DATE OF FILING: 07.01.2011 DATE OF FINAL ORDER:
04.02.2011 PETITIONER/RESPONDENT Phalguni Das Proprietor of S.P. Enterprise 26/1, Raj Kumar Mukherjee Road P.S. Baranagar, Kolkata 700 035 OPPOSITE PARTY/COMPLAINANT Tapas Dutta Nicco House, 2nd Floor 2, Hare Street Kolkata 700 001 BEFORE :
HONBLE JUSTICE MR. PRABIR KUMAR SAMANTA, PRESIDENT MEMBER :
MRS. S. MAJUMDER MEMBER :
MR. S. COARI FOR THE PETITIONER : Mr. P. Basu, Advocate FOR THE OPPOSITE PARTY : In Person.
:
O R D E R :
HONBLE JUSTICE MR. PRABIR KUMAR SAMANTA, PRESIDENT This Miscellaneous Application being MA-05/2011 has been filed by the sole OP namely Shri Phalguni Das of the complaint case no.CC/87/09 for recalling of the judgment and order dated 29.11.10 passed therein. The said order dated 29.11.10 was passed exparte by disposing of the aforesaid complaint case filed by the complainant namely Shri Tapas Dutta thereby holding that the complainant is entitled to get refund of an amount of Rs.15,20,744.00 (Rs.5,49,575/- towards principal + Rs.9,71,169/- being the interest on the same @ 18% from the date of payment i.e. 27.3.04 till January 12, 2009 i.e. the date of filing of the complaint before the State Commission) from the OP further with an award of compensation and cost of litigation at a consolidated sum of Rs.5 lacs. In all it has been held that the complainant would be entitled to recover from the OP a total sum of Rs.20,20,744/- which will carry an interest @ 9% per annum from the said date of 29.11.10 till recovery. In this Miscellaneous Application it has been alleged by the OP that the complainant has obtained such exparte order by practicing fraud upon the State Commission.
The complainant has filed a written objection to the aforesaid Miscellaneous Application No.MA-05/2011 which has been registered as MA-11/2011. Accordingly both the aforesaid Miscellaneous Applications are taken up for disposal by a common order.
To appreciate the true scope of the Miscellaneous Application No.05/2011 filed by the OP for recalling the aforesaid exparte order dated 29.11.10 it is necessary to state the facts and circumstances of this case in brief. Initially the present complainant filed a complaint case No.203/2009 before the District Consumer Disputes Redressal Forum, Kolkata Unit-II by alleging that he agreed to purchase a flat at 509, R.N. Tagore Road, P.S. Dum Dum, Kolkata 700 077 at a price of Rs.5,95,000/- from OP namely Shri Phalguni Das by entering into an agreement dated 29.02.2004 and paid the aforesaid entire consideration amount to the said OP, but the said OP failed to handover/deliver possession of the said flat to the complainant within the stipulated time. Upon contest the said complaint case was rejected with the finding that the said agreement dated 29.02.04 was by and between the complainant Shri Tapas Dutta and the owners of the land in question and there was no agreement for sale of the said flat by and between the complainant and the OP. It had not been proved in evidence and/or any material on records that the OP namely Shri Phalguni Das was the constituted Attorney of the owners of the land or that Shri Phalguni Das was authorized by the said owners to enter into an agreement on their behalf to sell the suit flat to the complainant.
Against the said order of rejection of the complaint, the complainant filed an appeal before the State Commission wherein a prayer was made for refund of the consideration amount that was paid by the complainant to the OP. Since the complaint did not make out any specific case in his complaint for refund of the consideration amount as alleged to have been paid by the complainant to the OP, the appeal was disposed of with liberty to the complainant to initiate an appropriate proceeding in accordance with law for refund of the same if so advised. The appeal was thus dismissed with such observation.
It is worthwhile to note herein that the said complaint case was filed with the address of the OP as care of Zakir Hossain, 20, Abdul Hamid Lane, 3rd floor, P.S.- Taltala, Kolkata 700 016. In the said complaint case the OP appeared and contested the same. Upon contest while it was rejected as aforesaid it was clearly observed by the District Forum in its order of rejection of the complaint that the OP had submitted before him that he is the proprietor of M/s. S.P. Enterprise which is carrying on his proprietorship business at the address at 123, Rajkumar Mukherjee Road, Kolkata 700 035.
Most interestingly while the second complaint case being CC/87/2009 was filed by the complainant against the OP for refund of the consideration amount allegedly paid by him pursuant to the liberty granted by the State Commission as above, the address of the OP was mentioned as 26/1, Rajkumar Mukherjee Road, P.S. Baranagar, Kolkata 700 035. The OP was neither impleaded in his address at 123, Rajkumar Mukherjee Road, Kolkata 700 035 as submitted by him at the time of disposal of the earlier complaint case nor at the address at which he was impleaded as above earlier in the complaint case No.203/2009. Consequently notice of the later complaint case being CC/87/09 could not be served upon the OP, as a result of which complainant was permitted to publish notice of the proceeding in the leading daily newspaper. Upon paper publication the service of notice of the said proceeding to the complainant was treated as complete and the same was disposed of by order dated 29.11.10 in the manner as aforesaid.
In the facts and circumstances as above the complainant has sought to justify impleading of the OP at the address at 26/1, Rajkumar Mukherjee Road by contending that in the agreement between the complainant and the OP the said address had been mentioned as the address of the OP. True, OP had entered into an agreement with the complainant with such address being written in the said agreement but interestingly the complainant did not implead the OP at such address while instituting the complaint case no.203/2009 before the District Consumer Disputes Redressal Forum, Kolkata Unit-II. Most importantly in the order of rejection of the said complaint case it was clearly recorded that the OP had disclosed his address at 123, Rajkumar Mukherjee Road. Above all, in the affidavit evidence filed by the complainant in the later complaint case no.87/2009, the complainant himself produced a letter dated 28.12.06 (Annexure H) written by himself to the OP. By the said letter he demanded refund of the earnest money paid to the OP along with interest @ 18% compounded monthly from the date of receipt of the said money till payment. The said notice was given by the complainant by way of demand of justice before instituting the later complaint case being CC/87/2009. Most importantly the said letter was addressed to the OP at his address at 123, Rajkumar Mukherjee Road, P.S. Baranagar, Kolkata 700 035.
In these state of affairs notice of the later complaint case namely CC/87/09 for the OP came back with the endorsement left. Accordingly by and order dated 15.02.2010 the complainant was directed to furnish correct address of the OP for fresh service of notice of the said proceeding. On 17th March, 2010 the complainant appearing in person submitted before this Commission that he could not find out the correct address of the OP. On his prayer publication of the notice of the proceeding of the complaint case in the leading daily newspaper was permitted. Thereafter the case was taken up for disposal exparte after paper publication was made with the address of the OP as above mentioned in the complaint. These facts and circumstances speak volume against the complainant as to his malafide motive of stealing a march over the OP by suppressing his correct postal address which was very much known to the complainant as indicated above. In these facts and circumstances we are constraint to hold that the complainant acted fraudulently for the purpose of getting the complaint case disposed of exparte in the absence of the OP. For the reasons as aforesaid the order dated 29.11.10 as passed in the complaint case is set aside. The Miscellaneous Case filed by the OP being MA-05/2011 is thus allowed and the Miscellaneous Case filed by the complainant being MA-11/2011 in the form of a written objection to the aforesaid Miscellaneous Case No.05/2011, shall stand rejected. Fix .. for filing written version by the sole OP.
(S. Majumder) (S. Coari) (Justice P.K. Samanta) MEMBER(L) MEMBER PRESIDENT