State Consumer Disputes Redressal Commission
Smt. Pratima Banerjee vs Smt. Lakshmi Rani Sarkar & Ors. on 3 May, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/78/2019 ( Date of Filing : 28 Jan 2019 ) (Arisen out of Order Dated 28/12/2018 in Case No. EA/359/2015 of District North 24 Parganas) 1. Smt. Pratima Banerjee Widow of Late Mrinal Kanti Banerjee, 6, Burma Shell Colony, P.O. - Sodepur, P.S. - Khardah, Dist. North 24 Pgs., Kolkata - 700 110. ...........Appellant(s) Versus 1. Smt. Lakshmi Rani Sarkar & Ors. W/o Sri Himangshu Sarkar, C-40, School Road, P.O. - Sodepur, P.S. - Khardah, Dist. North 24 Pgs., Kolkata - 700 110. 2. Smt. Mamita Dey nee, Sarkar D/o Sri Himangshu Sarkar, C-40, School Road, P.O. - Sodepur, P.S. - Khardah, Dist. North 24 Pgs., Kolkata - 700 110. 3. M/s. R.S. Housing Project 6, Burma Shell Colony, Flat no.2B, 2nd Floor, P.O. Sodepur, Dist. North 24 Pgs., Kolkata - 700 110. 4. Smt. Ratna Saha W/o Sri Sambhu Saha, Tarapukur, Paschim pally, P.O. - Agarpara, P.S. Khardah, Dist. North 24 Pgs., Kolkata - 700 109. 5. Sri Nirmalya Banerjee S/o Lt. Mrinal Kanti Banerjee, 6, Burma Shell Colony, P.O. Sodepur, P.S. - Khardah, Dist. North 24 Pgs., Kolkata - 700 110. 6. Sri Piyush Kanti Banerjee S/o Lt. Charuchandra Banerjee, 6, Burma Shell Colony, P.O. Sodepur, P.S. - Khardah, Dist. North 24 Pgs., Kolkata - 700 110. 7. Sri Tushar Kanti Banerjee S/o Lt. Charuchandra Banerjee, 6, Burma Shell Colony, P.O. Sodepur, P.S. - Khardah, Dist. North 24 Pgs., Kolkata - 700 110. 8. Sri Tapash Kanti Bandyopadhyay S/o Lt. Charuchandra Banerjee, 6, Burma Shell Colony, P.O. Sodepur, P.S. - Khardah, Dist. North 24 Pgs., Kolkata - 700 110. 9. Sri Tapan Kanti Bandyopadhyay S/o Lt. Charuchandra Banerjee, 6, Burma Shell Colony, P.O. Sodepur, P.S. - Khardah, Dist. North 24 Pgs., Kolkata - 700 110. 10. Sri Swapan Kr. Bandyopadhyay S/o Lt. Charuchandra Banerjee, 6, Burma Shell Colony, P.O. Sodepur, P.S. - Khardah, Dist. North 24 Pgs., Kolkata - 700 110. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. Dipa Sen ( Maity ) MEMBER For the Appellant: For the Respondent: Dated : 03 May 2019 Final Order / Judgement PER HON'BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
Challenge in this Appeal u/s 27A of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is to the Order No. 16 dated 28.12.2018 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (in short, Ld. District Forum) in MA/403/2018 arising out of Execution Application No. 359/2015 stems from Consumer Complaint No.339/2015.
The facts which giving rise to this appeal are that the Respondent Nos. 1 & 2 herein being Complainants lodged a consumer complaint under Section 12 of the Act being CC/339/2015 against the developer as well as landowners before the Ld. District Forum on the allegation of deficiency in services on the part of them in a dispute of housing construction. By a final order/judgement dated 30.10.2015 the said complaint was allowed on merit against the landowners and ex-parte against the developer with the direction upon the respondent nos. 1 & 2/complainants to pay the balance consideration money after adjustment of cost of installation of electric meter in the flat to the OPs within one month from the date of order, the OPs were directed to execute and register the Deed of Conveyance in favour of the complainants in respect of the property within one month, OPs were also directed to obtain Completion Certificate and possession certificate from the Panihati Municipality and to handover the same to the complainants within one month from the date of the order, to pay compensation of Rs.20,000/- and litigation cost of Rs.5,000/- which are to be paid within one month failing which OPs shall have to pay Rs.100/- per day from the date of order till its realisation as punitive damages.
Since the said order has not been complied with, the Complainants put the order in execution. Meanwhile, an appeal was preferred by the Opposite Parties under Section 15 of the Act but the said appeal has been dismissed. Challenging the said order passed in appeal, no revision petition preferred in the Hon'ble National Commission. Therefore, the order passed by the Ld. District Forum has attained finality.
At the time of proceeding of the execution case, the decree holders took out an application being MA/403/2017 whereby they have made a prayer to pass an order granting leave to the decree holders to amend the execution application by mentioning the names of J.Dr. Nos. 7 & 8 as Tapan Kumar Bandopadhyay @ Tapan Kanti Bandopadhyay and Sri Swapan Kumar Bandopadhyay @ Swapan Kanti Bandopadhyay and in the address of J.Dr. Nos. 3 to 8 (landowners) the words and figures Flat No-2B, 2nd Floor be deleted. A written objection against the said application has been filed by Smt. Pratima Banerjee, W/o Late Mrinal Kanti Banerjee (one of the landowners and party to the execution proceedings). By the impugned order, the Ld. District Forum allowed the application with an observation that the defects are curable one and it will not change the nature and character of the present execution application. To assail the said order, the said landowner has come up in this Commission with the present appeal.
Mr. Biswadwip Sen, Ld. Advocate for the Appellant has submitted that the Ld. District Forum has no authority to amend the execution application without amendment of the petition of complaint. In support of his contention, he has placed reliance to a decision of Supreme Court reported in (2011) 9 SCC 541 [Rajeev Hitendra Pathak & Ors. - Vs. - Achyut Kashinath Karekar & Anr.] and also a decision of the Hon'ble National Commission reported in 2012 (3) CPR 396 [Hind Freight Services Pvt. Ltd. - Vs. - Ankit Agarwal & Ors.].
Per contra, Mr. Tarun Jyoti Banerjee, Ld. Advocate for the Respondent Nos. 1 & 2 has contended that the Ld. District Forum was quite justified in allowing the application in order to achieve the object of the basic order dated 30.10.2015 passed in CC/339/2015 and in support of his submission, he has placed reliance to a decision of Hon'ble Calcutta High Court dated 17.04.2009 in CO No.2837 of 2007 [Tapas Guha & Ors. - Vs. - Angur Bala Das].
We have considered the rival contention of the parties and considered the materials on record.
Having heard the Ld. Advocates appearing for the respective parties and on perusal of the record, it would reveal that the names of Pro-Respondent Nos. 9 & 10 were written as Tapan Kumar Bandyopadhyay and Sri Swapan Kumar Bandyopadhyay in place of Tapan Kanti Bandyopadhyay and Swapan Kanti Bandyopadhyay respectively in the petition of complaint and as well as in the execution application. Admittedly, the addresses of Sri Tapan Kumar Bandyopadhyay and Sri Swapan Kumar Bandyopadhyay were written as 6, Barma Shell Colony, P.O.-Sodepur, P.S.-Khardah, Kolkata-700110, Dist- North 24 Parganas but the Premises No.6, Barma Shell Colony is same and identical and it is apparent that Pro-Respondent Nos. 9 & 10 received the notice of original complaint and execution application from the said address and it was never agitated by them that Tapan Kanti Bandyopadhyay and Swapan Kanti Bandyopadhyay had separate identity and Sri Tapan Kumar Bandyopadhyay and Sri Swapan Kumar Bandyopadhyay and Tapan Kanti Bandyopadhyay and Swapan Kanti Bandyopadhyay were not same and identical persons.
It is also evident that challenging the basic order, an appeal has been preferred but in the appeal, no such plea was taken. In other words, the appellants did not agitate the aforesaid fact in the appellate Court or even during long pendency of the execution case. When the matter was noticed by the decree holders/respondent nos. 1 & 2 and they filed the application being MA/403/2017 before the Ld. District Forum for amendment to cure such formal defects like clerical/typographical mistakes, we think the Ld. District Forum did not commit any wrong by allowing the application to end the lis.
The decision in the case of Rajeev Hitendra Pathak & Ors. (supra) has made it clear that the District Forum and the State Commission have not been given any power to set aside ex-parte orders and power of review and the powers which have not been expressly given by the statute cannot be exercised. The decision in the case of Hind Freight Services Pvt. Ltd. (supra) has been made in consonance with the decision passed by the Hon'ble Supreme Court in the case of Rajeev Hitendra Pathak & Ors. (supra). Those decisions have no manner of application in our case because by the impugned order, the Ld. District Forum has neither set aside nor review its own order but an attempt has been made to cure the typographical mistake in order to give execution of the order in its letter and spirit. Therefore, the argument advanced by the Ld. Advocate for the appellant bears no merit.
After giving due consideration to the submission advanced by the Ld. Advocates appearing for the parties, we are of the view that the names of the Pro-Respondent Nos. 9 & 10 could not be given due to bonafide mistake on the part of complainants/respondent nos. 1 & 2 and the object of the application is not inconsistent with the observation made by the Hon'ble Supreme Court in paragraph-36 in the case of Rajeev Hitendra Pathak & Ors. (supra).
For the reasons aforesaid, the appeal being devoid of merit is liable to be dismissed.
Consequently, the appeal is dismissed on contest. However, there will be no order as to costs.
The Order No.16 dated 28.12.2018 passed by the Ld. District Forum in MA/403/2018 arising out of EA/359/2015 is hereby affirmed.
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 at Barasat for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. Dipa Sen ( Maity )] MEMBER