CHANDAN BAINK Vs. SUPRNA GANGULY BAGCHI

JUDGEMENT

(1.) The case of the petitioner is that he is the youngest son and legal heirs of late Chandranath Banik and late Nirmala Banik. The proforma opposite parties are other sons of late Chandranath Banik. The petitioner most of the time resides at Thiland for business purpose. The proforma opposite parties resides at 26, Hindustan Park, Kolkata for last 20 years. Neither the petitioner nor proforma opposite parties have ever resided at 26A, Hindustan Park, Kolkata. The youngest brother of the petitioner namely Nandan Banik have been residing at 26A, Hindustan Park, Kolkata. The deceased mother of the petitioner late Nirmala was the sole owner of the premises No.26A, Hindustan Park, Kolkata. She had entered into a development agreement with Ms. Ratnakar Properties Private Ltd. during her life time. The premises being No.26A, Hindustan Park, Kolkata, was developed by the said developer. On 22.12.2012 the petitioner was served for a notice of execution case being No.E.A/10/11 arising out of a consumer complaint case No.SC, Case No.08/72 before the State Consumer Disputes Redressal Commission, West Bengal. The said case has been filed by the opposite parties No.1 & 2 the petitioner and his two brothers have been impleaded. Petitioners another brother Sri Nandan Banik who has been residing at the premises 26A, Hindustan Park, Kolkata has not been impleaded. Petitioner had no knowledge about the original proceedings out of which the execution case arose. Petitioner came to know that the degree/has been put in execution was passed ex parte. The proforma opposite parties ever received any notice at any point of time in respect of the original consumer dispute proceeding.

(2.) The notices issued by the Ld. State Commission had come back showing received of the service by the erstwhile opposite party No.2 i.e. late Nirmala Banik in 2008 though the fact remains that the late Nirmala Banik had passed away way back in the year 2002, and advertisement was purportedly published in the Newspaper. In response thereto the developer entered appearance and file in written statement disclosing that late Nirmala Banik had passed away. In a substitution petition filed by the opposite parties, notices have served upon legal heirs including the petitioner at the address at 26A, Hindustan Park, Kolkata. The opposite parties deliberately mention the address of the petitioner as 26A Hindustan Park, Kolkata, instead of 26, Hindustan Park, Kolkata with an intention to obtain an ex parte degree.

(3.) The petitioner filed a miscellaneous petition before the Ld. State Commission inter alia praying for setting aside or recall of the ex parte degree dated 22.7.2011 which was put in execution by execution case No.EA 10 of 2011 arising out of CC No.08 of 72. The said miscase was registered at M.A. 53 of 2012 in the said miscase, the petitioner also raised the issue that the initially complain case was instituted against dead person and as such some was not maintainable. The Ld. State Commission would order dated 12.3.2012 dismissed the miscellaneous application being M.A. No.53 of 2012 on the plea that there is no express provision in the Consumer Protection Act for setting aside an ex parte award.