Bichitra Kumar Chakraborty- vs Goutam Ghosh

AGGRIEVED by the order dated 4.5.2012 passed by the West Bengal State Consumer Disputes Redressal Commission (for short ''the State Commission '') in FA No. 119/2011, the petitioner, (one of the opposite parties before the District Forum) has filed the present petition purportedly under Section 21(b) of the Consumer Protection Act, 1986. The appeal before the State Commission was also filed by the petitioner herein against the order dated 14.12.2009 passed by the District Consumer Disputes Redressal Forum, Howrah, in complaint case No. 105/2009 by which order the District Forum had allowed the complaint ex parte against the petitioner and the other opposite parties with direction to the OPs to jointly and severally complete the construction of the flat in Schedule B within 6 months from the date of the order and deliver the possession of the flat in question to the complainant along with completion certificate after obtaining the same from the competent authorities together with sanctioned plan besides to execute and register the deed of sale in respect of the flat in question within one month from the date of the completion of the flat on receipt of the balance consideration from the complainant and in the alternative to refund the amount of Rs. 6,03,111 being the earnest money and pre-EMI charges of the bank already paid by the complainant in case the complainant fails to get an order for execution and registration of the property in Schedule B. A compensation of Rs. l lakh and cost of Rs. 2,000 were also awarded in favour of the complainant. The State Commission dismissed the appeal and affirmed the order of the District Forum by rejecting the plea put-forth by the petitioner herein that under the agreement, he had no obligation to construct and transfer the flat in question as mentioned in Schedule B to the complainant and it was the sole obligation of the Promoter, i.e., M/s. Joy Lokenath Associates, Prop. Mr. Kankan Banerjee to do the needful. The State Commission have given cogent reasons as to why the said plea of the petitioner was liable to be rejected by observing as under: "We have duly considered the submissions so put forward on behalf of the Appellant/OP and have also gone through the materials on record including the impugned judgment and find that in this case the complainant/Respondent has put forward a case to the effect that after entering into a valid and legal agreement with the OP Nos. 1 and 2 for the purpose of purchasing a flat the complainant has already parted with considerable amount of the consideration money of the flat in question and in the process, has also incurred financial liability by obtaining loan facilities from the bank and that the OPs have failed and neglected their part of the contractual agreement by complet-ing and handing over the flat in question and getting it registered in favour of the complainant, there was no alternative left before the complainant but to institute the petition of complaint for proper redressal. The OPs did not contest the case before the learned District Forum. But at the appeal stage they have come forward with a case to the effect that the complainant/Appellant having utterly failed to comply with the complainant ''s part of the agreement, the complainant was not entitled to any relief whatsoever and that in the absence of any deficiency in service at the instance of the Appellant/OP the Consumer Complaint was not maintainable and that on this score alone the impugned judgment is liable to be set aside.

We have carefully gone through the impugned judgment and find that the learned District Forum has really appreciated the cases of the parties as it was produced before the learned District Forum at the instance of the complainant. The OPs having failed to appear and contest the Consumer Complaint before the learned District Forum there was no alternative left before the learned District Forum but to take up the hearing of the consumer complaint ex parte and in the process, we find that the learned District Forum has considered the pros and cons of the respective parties '' cases and has come to a just and proper decision. When there is cogent and sufficient materials so as to presume that the complainant/Respondent did enter into an agreement with the OPs for the purpose of purchasing a flat for valuable consideration and that in the process has already parted with considerable amount of the value of the flat in question and that the complainant has also incurred financial liability by obtaining loan facilities from the bank in question, we think that the learned District Forum has rightly passed the impugned judgment ex parte in favour of the complainant and considering the present Appeal in the light of above observations we find practically no merit in the present Appeal, which should be dismissed. In the result, the Appeal fails. "

LEARNED Counsel for the petitioner would assail the impugned order on the strength of the same pleas which were raised before the State Commission. He has also invited our attention to the tripartite agreement dated 10.3.2004 executed between him, the promoter and the complainant. He submits that a dispute has arisen between him and the promoter and pursuant to which the joint venture agreement executed between him and the promoter was terminated with due notice to the complainant. We have noted down these submissions only to be rejected because in our view, going by the terms of the tripartite agreement, there is no escape from the conclusion that petitioner along with promoter, i.e., M/s. Joy Lokenath Associates, Prop. Mr. Kankan Banerjee, were jointly and severally liable to complete the construction of the flat in question and handover its possession and execute the sale-deed of the flat in favour of the complainant. This is exactly what Fora below have ordered in the present case. In any case, the petitioner was ex parte and not represented before the District Forum and no defence .was put-forth on his behalf and, therefore, it is too late in the day for the petitioner to raise such pleas. The revision petition is dismissed being devoid of any merit. Revision Petition dismissed.