SANTOSH PRAMANIK vs DEBASIS BISWAS & 3 ORS

Present revision petition has been filed by the Petitioner/ Complainant against the impugned order dated 29.04.2016 passed by the West Bengal, State Consumer Disputes Redressal Commission, Kolkata (for short, ''State Commission'') in F.A.No.195 of 2015.

Brief facts of this case as per the Petitioner/Complainant are that Petitioner entered in to an agreement for sale with the Respondents/Opposite Party Nos.1 & 2 on 19.05.2007, for purchasing a self-contained flat, being flat no. 5A on the 4 floor, having a super built up area of 660 sq. ft., th in a multistoried building, for the consideration amount for Rs.8,58,000/-. The developers agreed to complete the said building and to finish the flat and make it habitable and to deliver the possession of the same within 24 months from the date of the execution of the said Agreement for Sale and the purchaser should pay the consideration money and other dues at the time of delivery of possession. The petitioner claimed to have paid the entire amount of total consideration money, on different dates, to the Respondents No.1 and 2.

It is further stated that after making the payment of the entire consideration amount, the petitioner asked the respondents to hand over the actual vacant possession of the said flat with a copy of the sanction plan and also to execute and register the Deed of Conveyance, in respect of the said flat, but the respondents failed to do the same in spite of several and repeated requests made by the petitioner and further demanded a sum of Rs.5,00,000/- and also threatened to transfer the said flat to a third party, in case of failure to pay the same, which amounts to deficiency and negligence on the part of the respondents, rendering services towards the petitioner. Ultimately, the petitioner sent a letter on 29.11.2012 to the local police, and also lodged a complaint before the Consumer Affair Dept. on 23.07.2013, but to no avail. Hence, petitioner has filed a consumer complaint seeking adequate redressal and compensation.

Respondents 1 & 2 contested the complaint and filed their separate written statement denying the contentions and all material allegations levelled by the petitioner and stating inter alia, that the petitioner has no cause of action; the case was not maintainable and was specifically barred by law of limitation. On merits, respondents No.1 and 2 stated that the cost of the said flat was primarily fixed Rs.8,58,000/- only, as per the Agreement for Sale, dated 19.05.2007, but subsequently, due to some extra works in the said flat, the total cost of the flat finally was fixed at Rs.10,50,000/- only, which the petitioner was agreed to pay. But, the petitioner never took any steps to pay the full consideration amount, as per the schedule of the Agreement for Sale and petitioner never asked for the copy of the Sanction Plan from the respondent no.1. Actually, the petitioner had neither paid the full consideration amount within the stipulated period specified in the said Agreement for Sale, dated 19.05.2007, nor did he take any steps to pay the amount of Rs.72,000/-, which was dishonored. Further, the petitioner did not even meet with the respondent no.1 for a long time of 6 years. Hence, respondent no.1 sold out the said flat to the third party, due to financial crisis, which was well known to the petitioner. The respondent no.1 is still ready and willing to refund the said amount paid by the petitioner to him.

District Consumer Disputes Redressal Forum, North 24 Parganas, Barsat (for short, ''District Forum'') vide their order dated 22.08.2014 allowed the complaint and gave the following order;

" That the case be and the same is allowed on contest against the Opposite Parties No.1 and 2 with cost of Rs.8,000/- only, payable to the complainant by the Opposite Parties No.1 and 2 within one month from the date of this order and dismissed against OP No. 3 and 4.

The Opposite Parties No.1 and 2 are jointly and severally directed to pay the entire sum of Rs. 9,78,000/-(Nine Lakh Seventy Eight Thousand) only, along with the interest @ 15% p.a. from the date of last payment, i.e. from 30.5.2011 till its realization, within one month from the date of this order. That the O.P. No. 1 to 5, being the Developers, jointly and severally are also directed to pay an amount of Rs.50,000/- only to State Consumer Welfare Fund, as penalty, for adopting unfair trade practice, within one month from the date of this order.

In the event of non-compliance of any portion of the executable order by any of the O.Ps within the above specified period, the said O.Ps. shall have to pay a sum of Rs.300/- only per day from the date of this order till its realization, as punitive damages, out of which 50% shall be paid to the complainant and rest 50% shall be deposited by the O.Ps to the State Consumer Welfare Fund ."

Being dissatisfied by the order of the District Forum, petitioner has filed an appeal before the State Commission for enhancement of the compensation.

The State Commission vide their impugned order dated 29.04.2016 dismissed the appeal in default. The order reads as under; "Dated : 29.04.2016

ORDER No. 6

Appellant as well as respondent no.1 is found absent when the record called on for hearing. On the last occasion also appellant did not take any step. The facts and circumstances of the case indicate that appellant is no more interested to proceed with the appeal.

Accordingly, the appeal is dismissed for default ."

Hence, the revision petition.

We have heard the learned counsel for the petitioner. He has stated that the State Commission dismissed the appeal without appreciating that the reason for which the matter was dismissed was totally beyond the control of the petitioner and there was no negligence on his part. The learned counsel for the petitioner further submitted that on 29.04.2016, the date of which the appeal was dismissed in default, the learned advocate for the petitioner has failed to appear in time as she was engaged in another matter before the High Court of Calcutta and after finishing the matter, she rushed to the State Commission but before she could reach the matter was called on and since there was none to represent the petitioner, the matter was dismissed in default.

We have carefully gone through the record. On-going through the record, we find that the State Commission had given number of opportunities to the petitioner for effecting services on respondent nos. 3 and 4, which he has failed to do so as per the daily order sheets of the State Commission, which read as under; " Dated : 30 Jul. 2015

ORDER NO.2

Ld. Advocate for the Appellant is present. The unserved envelopes containing notices in respect of Respondent Nos 3 and 4 are received with the postal endorsement ''Left''. A/D cards in respect of Respondent Nos.1 and 2 are received showing completion of service. Appellant is directed to file affidavit of service in respect of Respondent Nos. 3 and 4. Let the case be transferred to Hon''ble Bench-3 for disposal fixing 15.09.2015 for filing affidavit of service in respect of Respondent Nos. 3 and 4 by the Appellant there.

Dated : 15 Sep. 2015

ORDER NO.3

Appellant is represented through Ms. Rekha Ghosh, Advocate. Respondent No.1 and 2 appear today appointing Mr. P. Naskar and R. Modal, Advocates, to conduct the case on behalf of them. Let the Vokalatnama be kept with the record. However, appellant has failed to file affidavit of service in respect of respondent Nos. 3 and 4.

To 16.11.2015 for filing affidavit of service by the appellant in respect of respondent Nos. 3 and 4 or for citation in a daily Bengali newspaper, to date for hearing MA, if filed.

Dated : 18 Nov 2015

ORDER NO.4

Respondent No.1 is represented through Mr. R. Mondal, Advocate. Appellant or his Ld. Advocate are found absent. This date was posted for filing citation in respect of notice upon respondent Nos. 3 and 4.

Considering the facts and circumstances, in the interest of justice, fix 19.02.2016 for filing paper publication showing citation in respect of service of notice upon respondent Nos.3 and 4 as a last chance. To date is also fixed for hearing MA, if filed ."

It is only after having given so many opportunities to the petitioner, the State Commission dismissed the appeal of the petitioner in default as also because the petitioner did not take any step for service of respondent nos.3 and 4.

The reasons given for the same in the revision petition by the petitioner are as under ;

" That on 30.07.2015, when the matter was taken up by the Learned State Commission, West Bengal, it was found that the unserved envelopes containing notices in respect of Respondent Nos.3 & 4 have been received with the postal endorsement ''Left''. A/D cards in respect of Respondent Nos.1 & 2 although were received showing completion of service. The petitioner was thus directed to file affidavit of service in respect of Respondent Nos.3 & 4 and the case was transferred to learned Bench-3 for disposal, thereby fixing 15.9.2015 for filing affidavit of service in respect of Respondent Nos. 3 & 4 by the Appellant there. That in spite of repeated efforts the petitioner could not serve the respondent Nos.3 and 4 as they are not traceable in their residential addresses. Then the Learned State Commission on 15.09.2015 and 18.11.2015 directed the petitioner to take steps for substituted service. Copies of the said order dated 30.07.2015, 15.09.2015 and 18.11.2015 as passed by the Learned State Commission, West Bengal are annexed hereto.

That as already mentioned in the cause title of this application, the petitioner is an employee of Indian Institute of Technology (IIT) and presently he is posted at Kanpur. Although the orders were passed for effecting substituted serviced upon the respondents nos. 3 & 4, the petitioner could not come to Kolkata before second week of May, 2016 due to immense work pressure as he could not leave the work place. Then, the learned Advocate of the petitioner could not take any steps for effective substituted service.

Only in the second week of May, 2016, the petitioner could come to Kolkata and contacted with his present Learned Advocate and instructed him to apply for causing substituted service upon the respondent nos. 3 and 4. That unfortunately in the meantime on 29 April, 2016 the Learned State th Commission was, inter alia, pleased to dismiss the appeal for default as the learned advocate for the petitioner failed to appear in time as she was engaged in another matter before Hon''ble High Court at Calcutta, she rushed to the Learned State Commission, West Bengal, but before she could reach the Learned State Commission, West Bengal, the matter was called on and since there was none to represent the petitioner, the matter was dismissed for default by the Learned State Commission, she mentioned the matter and prayed for recalling but Learned State Commission was, inter alia, please to reject such prayer ."

From the above, it is clear that the petitioner as also his counsel failed to take necessary action a timely manner for service of the respondent nos.3 and 4 as ordered by the State Commission in the appeal filed by the petitioner before the State Commission. Even though, the State Commission vide their order dated 15.09.2015 had ordered the petitioner that he could steps for substituted service but he has failed to do so till 29 April, 2016, inspite of having given so th many opportunities to do so. We are of the view that the petitioner as also his counsel were not vigilant and diligent in pursuing their appeal.

In view of the above discussions, we find that there is no fault in the order of the State Commission and it has rightly dismissed the appeal in default of the petitioner as such no

jurisdictional or legal error has been shown to us in the impugned order to call for interference in the exercise of powers under Section 21(b) of the Consumer Protection Act, 1986. The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, the present revision petition is hereby dismissed and the order passed by the State Commission is hereby affirmed.