Prasanta Kumar Paul vs Shubhankar Dev

C. Viswanath, Presiding Member

This appeal is against the order of the West Bengal State Consumer Disputes Redressal Commission, Commission, Kolkata (hereinafter referred to as "the State Commission) dated 16.12.2019 in CC/718/2017.

The Complainant entered into an agreement with the Opposite Party on 04.03.2013 to purchase a flat measuring about 825 sq. ft. super built up area in the building "AAMAR BARI" in Mouza-Mrigala, Dakshin Subhas Pally, P.S. Dankuni, District Hooghly for a total consideration of Rs.23,10,000/-. On full payment, the Opposite Party registered the flat on 09.12.2013 and also delivered its possession. The case of the Complainants is that the measurement of flat is lesser in area than shown in the deed. The Complainants, thereafter, lodged a Complaint with a prayer for following reliefs, viz- (a) an order directing the Opposite Party to pay Rs.90,748/- with interest for providing lesser area of 32.41 sq. ft; (b) an order directing the Opposite Party to pay Rs.6,500/- tentatively which the Complainants paid towards stamp duty and registration fee in respect of 32.41 sq. ft. with interest; (c) an order directing the Opposite Party to pay compensation of Rs.5,00,000/- for deficiency of service and illegal activities which caused severe harassment and mental agony to the Complainants; (d) an order directing the Opposite Party to pay litigation cost of Rs.1,00,000/- to the Complainants; (e) an order to pay interest at the rate of 18% p.a. etc.

The Appellant/Opposite Party abstained from contesting the case. The State Commission allowed the Complaint ex-parte and directed the Opposite Party to refund Rs.90,748/- to the Complainants alongwtih Rs.20,000/- towards compensation for mental agony and harassment and Rs.10,000/- for cost of litigation. Above amount was to be paid within 45 days from the date of communication of the order and in default the amount was to carry 9% interest p.a. from the date of the order till realization.

The Appellant has preferred an Appeal for setting aside the order of the State Commission dated 16th December, 2019 in CC/718/2017.

Heard the Learned Counsel for the Appellant and also carefully perused the record. Learned Counsel for the Appellant stated that written version could not be filed before the State Commission due to the fault of the Advocate of the Appellant. The Advocate informed them that the matter was duly taken care of and the dispute awaits adjudication. On 15th July, 2018 the Appellant was informed by the counsel that the time for filing the written version had expired. On an application of the Appellant, the State Commission imposed a cost of Rs.50,000/- for filing the written version. The Appellant immediately made over the sum of Rs.50,000/- to his counsel for payment of cost as per orders of the State Commission, dated 12th July, 2018. The said cost deposited with the counsel was not paid and hence the State Commission debarred the Appellant from filing written version and contesting the Complaint and the Complaint was disposed ex-parte.

It is seen that at the State level, the Appellant/Opposite Party failed to represent his case, his counsel did not appear and represent on two occasions before the State Commission. Further the orders of the State Commission to deposit the cost of Rs.50,000/- were also not complied by the Appellant and hence his written version was not taken into consideration and the case decided ex-parte. The Appellant ought to have been more vigilant in pursuing his case and instead he went on changing his counsels and contended that each one of them had let him down. The Appellant is a builder and is expected to be more aware of the happenings, rather than complain against series of Advocates.

The Complainants appointed an Engineer Commissioner who submitted his report with an affidavit. The report indicated that the Complainants were handed over a super area of 793 sq. ft. as against 825 sq. ft. as mentioned in the sale deed. The State Commission also records that no contrary evidence was produced to controvert the report of the Engineer Commissioner and hence there was substance in the allegation of the Complainants. Taking into account the proportionate rate of 32 sq. ft., the State Commission calculated Rs.90,748/- towards shortfall of area. The Appellant/Opposite Party resorted to unfair trade practice by not delivering the actual size of flat as agreed upon, the money collected and as per the sale deed.

As seen from the above, the Appellants have been negligent not only in pursuing their case but also adopted unfair trade practice in handing over smaller flat. The Complainants have been able to prove same with sufficient evidence and the State Commission rightly allowed the Complaint ex-parte. I see no infirmity or illegality in the order of the State Commission and the Appeal is dismissed in limine on merits.