Sharmistha Chowdhury vs Saibalpatra & Anr

V.K. Jain, J

The complainants entered into an agreement with the appellant for purchase of the residential flat for a total consideration of Rs.46,35,000/- and made payment of Rs.35,67,728/- to the appellant. The possession of the flat was to be delivered within 12 months. Since the possession of the flat was not delivered to the complainants, they approached the concerned State Commission by way of a consumer complaint, seeking refund of the amount paid by them to the OP, with compensation.

A perusal of the order sheet of the State Commission would show that the complaint was admitted and notice was issued to the appellant on 1.9.2017 for 10.11.2017. On 10.11.2017, the matter was adjourned to 25.1.2018 for publication of notice in a newspaper. On 25.1.2018, the appellant was present before the State Commission and on that date, he sought time to file the written version. On his request, the State Commission fixed 07.3.2018 for filing the written version and also directed that in case of default he will be debarred form filing the written version. On 07.3.2018, an Advocate appointed by the appellant appeared before the State Commission and filed Vakalatnama in his favour. Since more than 45 days from the service of notice had already expired, the State Commission closed the right of the appellant to file the written version and adjourned the matter to the next date of hearing. On 06.7.2018, there was no appearance on behalf of the OP and the affidavit filed by the complainant by way of evidence was taken on record. The matter was adjourned on 28.9.2018. On 28.9.2018 also no-one appeared for the appellant and the impugned order was passed by the State Commission.

This is the submission of the learned counsel for the appellant that a copy of the consumer copy was not provided to the appellant and therefore, he could not have filed the written version. However, the order of the State Commission dated 25.1.2018 does not record any request by the appellant to provide a copy of the consumer complaint to him nor does it record that he had stated before the State Commission that the copy of the consumer complaint had not been received by him. It may be noted in this regard that 7.3.2018 was fixed for filing the written version on the request of the appellant himself. Had he not received the copy of the consumer complaint, he would have stated so before the State Commission on 25.1.2018 and would not have requested the State Commission to give a date for filing the written version.

On 07.3.2018, though the appellant was represented by a counsel, also filed a Vakalatnama in his favour, no request was made to the State Commission by his counsel for providing a copy of the consumer complaint to him. The State Commission was not told that the appellant had not received a copy of the consumer complaint and therefore was unable to file the written version.

On 6.7.2018, neither the appellant nor his counsel appeared before the State Commission. The same was the position on 28.9.2018.

The above referred conduct of the appellant clearly indicates that he had deliberately not filed the written version to the consumer complaint and there is no merit in the contention that he had not received the copy of the consumer complaint.

The State commission on the basis of the affidavit and documents filed by the complainants rightly concluded that the appellant had failed to deliver possession of the flat, subject matter of the agreement between the parties. It would be pertinent to mention here that as per the agreement dated 02.9.2014, the possession was to be delivered within 12 months thereof, meaning thereby that the possession ought to have been delivered by 02.9.2015. The consumer complaint was filed on 24.8.2017. The possession to the complainants had not been offered even by that date as would be evident from the averments made in the consumer complaint. Therefore, the State Commission was justified in directing refund of the amount paid to the complainants with interest etc. The impugned order does not call for any interference by this in exercise of its appellate jurisdiction. The appeal being devoid of any merit is hereby dismissed.