AROOP MUKHERJEE vs SWITZER INSTRUMENT LTD.

THIS first appeal is directed against the majority decision dated 17th November, 1993 passed by the West Bengal State Consumer Disputes Redressal Commission at Calcutta allowing the complaint and directing the opposite party to pay a sum of Rs. 2,30,000 / together with interest at the rate of 18% per annum effective from 15th November, 1991 until such refund of the said amount beside a payment of cost of Rs. 25,000/-. The minority view also allowed the complaint and directed the refund of Rs. 2,30,000/- together with interest @ 12% per annum from 12.11.91 till the date of refund besides payment of Rs. 1 lakh compensation and a payment of Rs. 7,000/- as costs.

THE facts lie in a narrow compass and may be noticed. THE complainant had entered into an agreement with the opposite party on 6.8.90 for purchase of flat on second floor at 68/ 1F, Puma Das Road, Calcutta-29 measuring approximately 950 sq. ft. as per sanctioned plan. As per Clause 3 of the said agreement the complainant had paid to the opposite party a sum of Rs. 1,30,000/- as deposit and the second payment of Rs. 1,30,000/- was payable by 7th September, 1990. Time is essence of the contract. THE balance of the amount was to be paid as per the progress of the building in instalments of 20% of the total price approximately every five months from date and the last payment was to be paid 30 days prior to possession. Clause 13 of the agreement provided that in case for any reason whatsoever the opposite party is unable to allot the said flat to the complainant, then all deposit would be refunded within 90 days of the notice. THE complainant had made first deposit by demand draft No. 000686 dated 26.7.90 for Rs. 1,30,000/- as mentioned in the said agreement and also paid Rs. 1,30,000/- within the stipulated period. According to the complainant there was no progress at all with regard to the construction of the building and there appeared to be no possibility of completing the said building and handing over the flat to the complainant within the stipulated time. THE complainant thereafter sent notices dated 5th October, 1991 and 25th October, 1991 treating the agreement as cancelled and called upon the opposite party to refund the deposit of Rs. 2,60,000/- on the failure of the opposite party in completing the construction and handing over possession within the stipulated time. THE opposite party did not reply to the notices sent. THE opposite party, however, paid a part payment of Rs. 30,000/- by cheque No. 564140 dated 30.1.92 which was dishonoured but subsequently this amount of Rs. 30,000/ was refunded to the complainant in the year 1992. THE complainant filed the complaint before the State Commission alleging deficiency in service on the part of the opposite party in constructing the proposed building and handing over vacant possession of the flat and claimed the relief of the refund of the deposit amount of Rs. 2,30,000/- with interest at the rate of 24% per annum from 12.11.91 till the date of refund besides the compensation of Rs. 1 lakh and costs of Rs. 70,000/-. Notice of the filing of the complaint was duly served on the opposite party who entered appearance. However, no written version was filed within the prescribed period of 30 days. The opposite party failed to appear on the subsequent date of hearings. The State Commission considered the complaint, the documents annexed to the complaint and the affidavit in support thereof and found that there was no material on record to disprove the version of the complainant. The State Commission allowed the complaint and granted the relief''s noticed above.

We have heard Mr. Santanu Mukherjee, Senior Advocate on behalf of the Appellant and Mr. Ramesh Singh, Advocate for the respondent and have gone through the records. At the hearing Counsel for the appellant attempted to raise additional grounds not taken in the grounds of appeal. This Commission made it clear to the Counsel that all questions of la w could be argued and he did make his submissions. The first submission of the learned Counsel for the appellant is that there was no legal and valid material before the State Commission to come to the finding recorded in the order of the State Commission. This has no merit. The appellant on receipt of the copy of the complaint entered appearance before the State Commission but failed to file its written version. There was no denial of the allegations contained in the complaint. The State Commission was fully justified to proceed to settle the consumer dispute on the basis of evidence brought to its notice by the complainant as the opposite party omitted or failed to take any action to represent his case within the time given by the State Commission. The State Commission has referred to the allegations made in the complaint copy of which has been filed by the appellant alongwith this appeal as also the copy of the agreement dated 6th August, 1990. The State Commission was thus fully justified in coming to the conclusion on the basis of the documentary evidence supported by affidavit that there was deficiency in service on the part of the appellant in completing the construction of the said flat and handing over the possession of the flat after completion of the building around the end of 1991 approximately. The second submission of the Counsel for the appellant was that the State Commission should have issued further notice to the appellant before proceeding to determine the complaint in the absence of the appellant. The appellant had omitted or failed to take any action to represent his case within the time given by the State Commission. The appellant did not seek further time to file its written version before the State Commission. There was no obligation on the part of the State Commission to give any further notice to the opposite party as the statute empowers the State Commission to proceed to settle the consumer dispute if the opposite party omits or fails to take any action to represent his case. The last contention of the Counsel for the appellant is that there was no material on the record to come to a finding that a payment of Rs. 2,60,000/- was made by the complainant towards the instalments of the aforesaid flat. The agreement dated 6th August, 1990 itself was the acknowledgement of the payment of Rs. 1,30,000/- and the photo copies mentions the payment of the first deposit by demand draft No. 000686 dated 26.7.90 for Rs. 1,30,000/- drawn on Central Bank of India and the receipt is signed over the revenue stamp. The second payment was of Rs. 1,30,000/- was to be made by 7th of September, 1990 and the affidavit of the complainant was that this payment was made and is acknowledged by the opposite party by its letter dated 10.11.90 and a copy of which was annexed and marked ''B'' with the complaint. In part-payment the opposite party gave a cheque for Rs. 30,000/- which bounced and subsequently another cheque of Rs. 30,000/- was given. This

COMMISSION had repeatedly questioned the Counsel for the appellant as to whether these two cheques for Rs. 30,000/- were given out of which one was dishonoured but the Counsel was neither in a position to admit nor deny even at the Bar, these averments contained in the complaint supported by an affidavit. We have, therefore, no hesitation in coming to the conclusion that the complainant did make a payment of Rs. 2,60,000/- out of which Rs. 30,000/- has been refunded and the balance due is Rs. 2,30,000/- as found by the State COMMISSION. For the above reasons the majority opinion of the State Commission directing the opposite party to pay the sum of Rs. 2,30,000/- together with interest at the rate of 18% per annum effective from 15th November, 1991 until such refund of the said amount besides cost of Rs. 2,500/- to the complainant is upheld. The appeals fails and is dismissed with costs. Counsel fee Rs. 2,500/. Appeal dismissed with costs.