NRISINGHA GOSWAMI vs SAMIR KUMAR BANERJEE

THE instant appeal has been preferred against the order dated 27.1.1994 in C.D.F. Case No. 96 of 1994 passed by the learned Calcutta District Forum.

THE Appellant has assailed the order dated 27.1.1994 on the ground that he was not given any opportunity to file written objection in the complaint petition before the learned Calcutta District Forum inasmuch as the complaint was filed on 7.1.1994 and was heard on 17.1.1994 within 10 days rejecting the prayer of the Appellant for time to file written objection therein and the judgment was pronounced on 27.1.1994 and that the filing of the complaint petition is hit by limitation as per provision of Section 24A of the Consumer Protection Act inasmuch as the alleged cause of action arose on 7.1.1991 whereas the complaint was filed before the learned C.D.F on 7.1.1994 and that no cause of action arose to file this complaint before the learned Calcutta District Forum, in view that there was no such agreement for demolition of the premises Nos. 82/1 and 82/2, Nimtala Ghat Street, Calcutta-6 between the complainant/respondent and the appellant and that there was an agreement for demolition of the said premises with Baidva Nath Dutta as per Annexure "A" to the Memo of Appeal and that the payment of Rs. 30,000/- was made to the appellant on account of accommodation of the deity and some of the shebaits who were residing at the said premises Nos. 82/1 and 82/2, Nimtalla Ghat Street, Calcutta-6, under demolition as against contractual amount of Rs. 50,000/- payable by the respondent for accommodation of the deity and some of the shebaits at Appellant''s premises for 6 months and that the said accommodation of deity and the shebaits are recorded in the several judgments passed by the Hon''ble High Court in a Suit No. 515 of 1991 instituted by Smt. Urmila Doshi against Samir Kumar Banerjee, the respondent herein and also in Matter No. 4001 of 1988 between Sri Sourendra Mohan Mukherjee and Others v. Official Trustee of West Bengal and Another. THE judgment in said Matter No. 4001 of 1988 was affirmed upto Supreme Court. Further, one Nilaj Mohan Goswami, the shebait of the deity Shree Iswar Girridhari Gobinda Jew for whose benefit, the said premises Nos. 82/1 and 82/2, Nimtala Ghat Road, Calcutta-6 were proposed to be developed sworn an affidavit that the deity and he as a shebait have been residing in the house of Nrisingha Goswami, the appellant of this case and further affirmed that the respondent agreed to pay Rs. 50,000/- out of which he paid only Rs. 30,000/- and the balance of Rs. 20,000/- was yet to be paid to the appellant by the respondent. In the aforesaid context, the appeal was fixed for hearing on number of days namely 17.1.1994, 25.4.1994, 4.8.1994, 24.8.1994 and 19.9.1994 and the respondent having appeared in the case disappeared since 4.8.1994 as such the case was heard ex-parte on 19.9.1994.

Having heard the learned Counsels of the appellant and upon perusal of the materials on record, it appears to us that the statements and grounds of appeal as stated by the appellant corroborated with the documentary evidence before us. We observe actually the learned C.D.F. distress of the case within 10 days which is contrary to the provisions under Section 13 of the Consumer Protection Act. We also observe that the filing of complaint is barred by limitation as per provisions under Section 24A of the Consumer Protection Act, 1994 inasmuch as that the alleged cause of action arose on 7.8.1991, whereas the complaint by the respondent was filed on 7.1.1994 before the learned C.D.F. Further it appears to us that for the self same cause of action the number of proceedings had been initiated before the Hon''ble High Court and the matter in dispute in the instant complaint had been dealt in the orders passed by the Hon''ble High Court. Moreover, as per agreement annexed to the Memo of Appeal, the agreement for demolition of the premises in question were made with one Baidyanath Dutta and not with the appellant. The affidavit sworn by the she baits of the deity Shree Giridhari Gobinda Jew namely Nilaj Mohan Goswami reveals that the payment of Rs. 30,000/- was made to the appellant for accommodation of deity and himself shebait in his house an against Rs. 50,000/- and there is nothing to disbelieve the said affidavit sworn by said Nilaj Mohan Goswami. It was alleged by the Appellant that the said xerox copy of the receipt is being tampered by the complainant/respondent for which we asked the complainant/respondent to produce the original money receipt for Rs. 30,000/- and gave him opportunities in several occasions to produce the same but he failed and/or avoided to produce the same for the reasons best known to him as such the alleged receipts may be a tampered one.

CONSIDERING all the facts as stated above, we allow the appeal and set aside the order dated 27.1.1994 passed by the learned Calcutta District Forum in C.D.F. Case No. 96 of 1994. However, we do not award any cost for this proceeding. Hon''ble Mr. Justice A.K. Bhattacharjee, President : The facts of the case as stated in the petition of complaint are as follows: The complainant-respondent filed the complaint alleging that he had entered into a contract with the appellant -O.P. for demolishing the complainant''s property at 82/1 & 82/2, Nimtala Ghat Street for a consideration of Rs. 30,000.00. This amount was paid against a receipt. The work was, however, not undertaken by the appellant and finding no other alternative the respondent filed a complaint before the Calcutta District Forum for refund of the money. The C.D.F. accepted the version of the respondent and allowed the prayer for refund of the money with a compensation of Rs. 5,000/-. The appeal is against the said order of the District Forum.

THE appeal has been attacked on a number of grounds. THE first ground is that it was disposed of in an unusual haste depriving the appellant to file any written objection. THE second objection is that the claim barred by limitation. THE third objection is that the material facts in respect of the case which were the subject matter of a litigation before the High Court were suppressed by the complainant which induced the Forum to pass a palpably wrong order. The papers filed show that the respondent as a lessee and developer undertook to reconstruct the aforesaid debatrar property by removing the deities and making arrangements for the accommodation of the shebait. A project was made accordingly and it was approved by the Hon''ble High Court. The project was, however, not carried out and a suit was filed in the original side of the High Court, Calcutta being Matter No. 4001 of 1988 by one Saurendra Mohan Mukherjee and others against the Official Trustee and the present respondent. The said suit was decreed and the lease granted in favour of the respondent Samir Kumar Banerjee on 21.8.1989 was cancelled. There was an appeal againstthe said judgment of the Trial Court. The Appellate Court affirmed the cancellation of the lease of Samir Kumar Banerjee and a fresh lease was granted in favour of one Urmilla Doshi on certain conditions set in the judgment. It was followed by another application filed by the respondent praying for an order allowing him to execute the project within three months. But the same was also dismissed by the Appellate Court by an order dated 18.8.1992. An S.L.P. was filed against the said order dated 18.8.1992 before the Supreme Court but the same was rejected (a copy filed before the District Forum). As regards the disposal of the case before the C.D.F. was a record speed (the case was filed on 7.1.1994 and heard on 17.1.1994, the judgment being passed on 27.1.1994) the allegeton is true. The District Forum''s record shows that the case was heard on the date of first appearance after ten days. Nothing has been recorded in the order sheet of the Forum why a written objection was not filed although the case was vehemently contested. This appears to us to be a substantial ground for attacking the impugned order.

AS regards the point of limitation no paper has been filed to indicate as to when the alleged contract of demolition work was to be completed. Hence it is not possible to say when the cause of action actually arose. It, however, appears from the record filed that the S.L.P. against the order dated 18.8.1992 was disposed of on 17.9.1993. If the said date is accepted as the last chance to retaining the lease by the respondent, the case was, however, not barred by limitation.

AS regards the merit of the case of the complainant, payment of Rs. 30,000/- by him is admitted. But the appellant has a different version. According to him it was a part payment of an amount of Rs. 75,000/- which was agreed to be paid by the respondent as the expenses for removing the deity and for the accommodation of the shebait. An affidavit affirmed by one Nilaj Mohan Goswami on 22.7.94 supports the appellant''s case. The receipt dated 7.8.1991 granted by the appellant has given some?. The words "which he has received" and "a/c for demolition" have been scored out. The words a/c for demolition have been scored out with the initial of the executant of the receipt. It has not been explained by the complainant why they were scored out. There is practically no proof that Rs. 30,000/- were paid for the purpose of making demolition. Moreover although the receipt is dated 7.8.1991 there is another agreement for the same work with one Baidya Nath Dutta dated 5.7.1991. The said agreement is not denied and in this agreement the period of dismantling was fixed for 60 days. There is no explanation whatsoever why a second agreement during the continuance of an existing agreement was made. As there is no proof from the document filed by the respondent that Rs. 30,000/- were paid for the demolition work as alleged by him, it would at best be a claim for recovery of money lent. As the jurisdiction of a Consumers Forum can be invoked only in case of any deficiency in service as defined in the Consumer Protection Act, 1986, the respondent cannot be said to be a consumer in respect of the money claimed. Nonpayment of the money will not be a deficiency in service, particularly when the respondent has lost all interest in the lease of the property in dispute. He cannot obviously demand for the fulfillment of the contract. His claim for money if it be a justifiable one, can be entertained only by a Civil Court.

For all the above reasons I hold that the respondent-complainant claim cannot be allowed by the District Forum. The impugned order is, therefore, to be set aside.

THE appeal is accordingly allowed or contest. THE order dated 27.1.1994 in C.D.F. Case No. 96/94 is set aside. THE complainant''s case be dismissed in the lower Forum. THEre will, however, be no order for cost either in the Trial Court or in the Appellate Court. Appeal allowed.