State Consumer Disputes Redressal Commission
M/S. Apurba Construction vs Gour Mukherjee on 9 January, 2024
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Revision Petition No. RP/55/2022 ( Date of Filing : 27 May 2022 ) (Arisen out of Order Dated 15/07/2021 in Case No. CC/118/2021 of District Kolkata-I(North)) 1. M/s. Apurba Construction 113, Tarak Pramani Road, P.S.- Girish Park, Kolkata- 700 006. 2. Sri Anjan Kumar Saha 113, Tarak Pramani Road, P.S.- Girish Park, Kolkata- 700 006. ...........Appellant(s) Versus 1. Gour Mukherjee 8/4A, Sashi Bhusan Chatterjee Lane, P.S.- Tala, Kolkata- 700 002. 2. Sushmita Mukherjee 8/4A, Sashi Bhusan Chatterjee Lane, P.S.- Tala, Kolkata- 700 002. 3. Sri Joy Sankar Roy 44, Paikpara Row, P.S.- Chitpur, Kolkata- 700 037. 4. Sri Sib Sankar Roy 44, Paikpara Row, P.S.- Chitpur, Kolkata- 700 037. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE MANOJIT MANDAL PRESIDENT HON'BLE MRS. SAMIKSHA BHATTACHARYA MEMBER HON'BLE MR. SHYAMAL KUMAR GHOSH MEMBER PRESENT: Mr. Sibaji Sankar Dhar, Mr. Suraj Roy, Advocate for the Petitioner 1 Sourya Mukherjee, N.R. Mukherjee, Advocate for the Respondent 1 Sourya Mukherjee,N.R.Mukherjee, Advocate for the Respondent 1 Dated : 09 Jan 2024 Final Order / Judgement MR. SHYAMAL KUMAR GHOSH, MEMBER
The instant Revision Petition has been filed by the Revisionists/Opposite Parties challenging the order impugned dated 15.07.2021 passed by the Ld. DCDRC, Kolkata Unit-I in connection with CC case being No. CC/118/2021 wherein the Ld. DCDRC has been pleased to pass an order of ad interim injunction and also to direct the Opposite Parties not to transfer any flat or any portion of alleged property without permission of this Commission. Being aggrieved and dissatisfied with such order the Revisionists/OPs have preferred the instant Revision Petition before this Commission.
Ld. Advocate appearing for the OPs/Revisionists has argued that the ad interim order has been passed in respect of entire property which is clearly enumerated in the petition of complaint as A Schedule property. B Schedule property clearly enumerated in the petition of complaint is exclusively allotted for the complainants. After passing of the aforesaid order the OPs/Developer /Revisionists are suffering a lot and thereby they are not able to construct the building /flat in question as well as they have failed to transfer any flat to any other intending purchasers . Accordingly, the Ld. Advocate has prayed for setting aside the order impugned dated 15.07.2021.
Ld. Advocate appearing for the Complainants has argued that the complainants has already paid Rs.40,00,000/- in respect of alleged flat but the developer has failed to demarcate or allocate the flat in favour of the complainant in spite of receiving the consideration amount of Rs. 40,00,000/-. The Ld. Advocate has further submitted that there was every chance to transfer the flat in question to any third party and as such having heard the Ld. Advocate and upon careful perusal of the relevant documents and paper , Ld. Trial Commission has been pleased to pass ad interim injunction upon the aforesaid flat in question. There is no such wrong, error, mistake or any illegality in passing the order impugned dated 15.07.2021. Accordingly, the Ld. Advocate appearing for the complainants has prayed for dismissal of the aforesaid revision petition with exemplary cost.
We have heard the Ld. Advocates for both sides at length and in full.
We have considered their submissions.
We have meticulously perused all documents and papers lying with the case record.
The hearing upon the revision petition has been concluded.
We have meticulously perused the order being no. 2 dated 15.07.2021 in connection with CC case being No. CC/118/2021 wherefrom it appears to us that the OPs are restrained by ad interim order of injunction not to transfer any flat or any portion of alleged property without permission of this Commission till 30.07.2021. The said order has been passed as per prayer B of the petition of complaint.
We have carefully perused the prayer B of the petition of complaint wherefrom it appears to us that the complainants have prayed for ad interim injunction as per provision of Section 38 (8) of the Consumer Protection Act, 2019 over the entire property .
It is very correct and proper that there may be a chance to transfer the alleged flat to any third party and as such ad interim injunction should be passed for providing better protection to the complainants and thereby the OPs should be restrained to that effect. At this juncture the ad interim injunction has been passed in respect of entire property and for that reason the OPs/developer have failed to construct their building as well as they have failed to transfer the flat to any other intending purchasers.
Upon the above observation ad interim injunction should be passed in respect of only B schedule property which has been exclusively booked for the complainants. Due to injunction over the entire property the OPs /developer are facing a lot of problems.
Considering all aspect from all angles and keeping in mind the present position of law, the ad interim injunction is allowed only for B schedule property which has already been exclusively allotted and booked for the complainants and the rest portion of the property remains free from ad interim injunction .
As per above observation the order being no. 2 dated 15.07.2021 is, therefore, modified to the above extent. The other portion of the order impugned remains unaltered.
The instant Revision Petition stands allowed in part on contest without any order as to costs.
The instant Revision Petition stands disposed of as per above observation.
Note accordingly.
Let a copy of this order be transmitted to the Ld. Trial Commission for compliance and also for taking necessary action.
[HON'BLE MR. JUSTICE MANOJIT MANDAL] PRESIDENT [HON'BLE MRS. SAMIKSHA BHATTACHARYA] MEMBER [HON'BLE MR. SHYAMAL KUMAR GHOSH] MEMBER