State Consumer Disputes Redressal Commission
M/S. Deb Construction, Sole Proprietor ... vs Smt. Kuntala Sahoo on 22 April, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Revision Petition No. RP/132/2015 (Arisen out of Order Dated 01/09/2015 in Case No. Complaint Case No. CC/140/2015 of District Kolkata-II(Central)) 1. M/s. Deb Construction, Sole Proprietor Debjit Saha 20J, K.G. Bose Sarani, Kolkata - 700 085. ...........Appellant(s) Versus 1. Smt. Kuntala Sahoo W/o, Sukumar Sahoo, Plot No. - 3/22, Azad Hind Nagar, P.O - Haldia Township, Dist - Purba Medinipur, Pin - 721 607. 2. Durgapada Maity S/o, Lt. Krishna Chandra Maity, Vill - D.C. Neogey Road, P.O - Bally Gosh Para, P.S - Bally, Dist - Howrah, Pin - 711 204. 3. Standard Chartered Bank 21A, R.G. Kar Road, Kolkata - 700 004. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Petitioner: Mr. Bratin Kumar Dey, Advocate For the Respondent: Mr. Barun Prasad, Advocate ORDER RP 132/2015 Heard on - 13.04.2016 Judgement on - Friday, 22 day of April, 2016. HON'BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER JUDGEMENT
Challenge in this Revisional Application u/s 17(1)(b) of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is to an order being no.16 dated 01.09.2015 made by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II (for short, Ld. District Forum) in consumer complaint no. 140/2015 thereby the application filed on behalf of the complainant for impleading Shri Sukumar Sahoo, husband of the complainant as Proforma opposite party was allowed on contest.
We have considered the submission advanced by Mr. Bratin Kumar Dey, Ld. Advocate for the Revisionist as well as Mr. Barun Prasad, Ld. Advocate for the op no.1/complainant. We have also scrutinised the materials on record.
Having heard the Ld. Advocate for the respective parties and on going through the materials on record, it emerges that the op no.1 herein being complainant initiated the consumer complaint u/s 12 of the Act in respect of a flat measuring about 600 sq. ft. lying and situated at premises no.24, K.G. Bose Sarani, P.S.- Beliaghata, Kolkata - 700085 against the developer i.e. the revisionist and land owner with prayer for certain reliefs including refund of deposited amount of Rs.10,00,000/-.
In their written version the op no.1/developer took the plea that he has received a part consideration amount of Rs.5,00,000/- and the remaining of Rs.5,00,000/- had been adjusted by them with Shri Sukumar Sahoo i.e. the husband of the complainant.
In that backdrop, an application has been filed on behalf of the complainant with a prayer for addition of Shri Sukumar Sahoo as profroma opposite party for effective adjudication of the dispute.
Upon hearing the Ld. Advocates appearing by the parties the Ld. District Forum passed the impugned order, as indicated above, which prompted the op no.1/developer to prefer this revision petition.
Mr. Bratin Kumar Dey, Ld. Advocate appearing for the revisionist has contended that the evidence of the parties is already over and the matter was slated for final hearing of the case. At that juncture the instant application has been filed without due diligence and as such the Ld. District Forum has committed an error by passing the order impugned without considering the fact that in spite of having knowledge complainant did not file it earlier intentionally. Ld. advocate for the revisionist in support of his contention placed reliance to two decisions of the Hon'ble supreme Court of India reported in (2006) 13 Scale 525 (Ajendraprasadji N. Pande and Anr. -Vs. - Swami Keshabprokashdasji N Anr.) and (2008) 4 Scale-546 (Chandar Kanta Bansal - Vs. - Rajinder Singh Anand).
Mr. Barun Prasad, Ld. Advocate for the op has submitted that the referred decisions relating to admission of petition of amendment at a subsequent stage, particularly at the time of peremptory hearing of the suit or case but since the impugned order relating to addition of party in accordance with Order-1 rule-10(2) of Civil Procedure Code, the cited decisions have no application in the instant case. He has further referred us a decision of Hon'ble Supreme Court of India reported in 2013 (3) CPR 647 (SC) (Mumbai International Airport Pvt. - Vs. - Regency Convention Centre and Hotels Pvt. Ltd. and Ors.).
We have considered the rival contention of the parties. The revisional jurisdiction of the State Commission flows from section 17(1)(b) of the Act, which runs as follows;-
"to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the state, where it appears to the State Commission that such District Forum has exercised jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity"
On reading of the above, it is evident that the revisional jurisdiction conferred on the State Commission is limited to the extent of jurisdictional illegality or material irregularity.
The decisions cited by the Ld. Advocate for the revisionist are with regard to amendment of plaint in accordance with Order VI rule 17 of the Civil Procedure Code. In those decisions the Hon'ble Apex Court has observed that after amendment of C.P. Code which came into force from 01.07.2002 the application for amendment after trial has commenced can only be allowed if it is manifestly clear that in spite of due diligence the plaintiff could not file the same. In the case before hand, by the impugned order the Ld. District Forum allowed the application for addition of party under the provision of Order-I rule-10(2) of the C.P. Code. In Mumbai International Airport Pvt. Ltd.'s case (Supra) the Hon'ble Apex Court has held that the provision of Order-I rule-10(2) of the C.P. Code makes it clear that a Court may, at any stage of proceeding either upon or even without any application, and on such terms as may appear to it to be just, direct that any of following persons may be added as a party- a) any person who ought to have been joint as plaintiff or defendant, but not added or b) any person whose presence before the Court may be necessary in order to enable the court to effectively and completely adjudicate upon and settled the question involved in that suit. The Apex Court further proceeded to observe that the Court is given the discretion to add as a party, any person who is found to be necessary party or proper party.
In the instant case, the complainant lodged the instant consumer dispute in respect of a housing construction against the developer with a prayer for refund of money of Rs.10,00,000/-. The developer (the revisionist) has admitted the claim of Rs.5,00,000/- but took a plea that the balance amount of Rs.5,00,000/- has already been adjusted with Shri Sukumar Sahoo i.e the husband of the complainant/op no.1 of this case. In that perspective, for proper and effective adjudication of the dispute the Ld. District Forum has rightly allowed the prayer of the complainant for addition of name of Shri Sukumar Sahoo as a party being Proforma O.P. Considering the above, we do not find any jurisdictional error or material irregularity in passing the order impugned which may call for interference of this Commission by exercising its revisional jurisdiction.
Consequently, the revision petition is, thus dismissed on contest. Considering the facts and circumstances of the case, however, we do not make any order as to costs.
The Order No.16 dated 01.09.2015 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II in C.C. No. 140/2012 is hereby affirmed.
The parties are directed to appear before the Ld. District Forum positively on 23.05.2016 to receive further order from the said end.
The Registrar of this Commission is directed to forward a copy of the order to the Ld. District Forum for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER