JAYANTA DASGUPTA Vs. BINATA DEBNATH

JUDGEMENT

(1.) THIS appeal challenges the order dated 30. 1. 2006 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata (in short, the State Commission) in complaint case no. 95/o/1999. By this order, the State Commission:

(2.) THE facts established by the documents on record are that the complainant is a British citizen of Indian origin and a cousin (sister) of the appellant. It appears that sometime prior to May 1997, the complainant wrote to the appellant about their wish to construct/buy a residential accommodation in Kolkata so that they could settle down after retirement. By his letter of 08. 05. 1997 to the complainant (the first communication on record), the appellant clearly advised the complainant against undertaking construction personally and represented that, as a better mode, he was engaged in the business of property development/sale through builder (s) and could arrange a residential flat for her according to her choice and means. He mentioned two alternative localities of Kolkata, viz. , Garia and Behala, the flat areas, their approximate costs, likely resale values and rental incomes and added that he was in a position to offer a flat in a multi-storeyed building project in Behala (a locality of Kolkata) for which he had a sanctioned building plan. Claiming that the construction of this building project would be completed by December 1998 (latest, March 1999), he strongly urged the complainant to go for this flat. He also spelt out a schedule of advance payment of 6,908 in respect of the flat in Behala, to be remitted to one Amit Chatterjee OP 2 - (first remittance of 1,754) and him (three subsequent remittances amounting in all to 5,154) and the mode of each remittance to them. He further stated that this amount would include the stamp duty and registration charges for the flat and that soon thereafter he would send the agreement by post. In early June 1997, the complainant remitted the sum of 9,500 to the appellant by one bank draft (6,500), four postal orders (2,400) and cash (600 two instalments of 300 each ). In a subsequent letter dated 12. 11. 1997, Amit Chatterjee informed the complainant (in reply to some letter of the latter) that he had booked a flat (D-1 on the first floor) in the names of the complainant and her husband and he would inform the date of likely delivery of possession in January 1999. However, despite their assurance to send the requisite documents like the agreement for sale, etc. , by post, neither the appellant nor OP 2 did so. Instead, he sent a printed booklet with a sketch plan for the flat that he stated to have booked for the complainant and her husband. In his letter dated 02. 02. 1998 to the complainant, the appellant further informed the complainant that the construction of the building project would start in March/april, 1998, which was contrary to the information in the appellants letter dated 08. 05. 1997 as well as that dated 12. 11. 1997 of OP 2. As a result, the complainants husband came to Kolkata on 04. 03. 1998 and found that even the construction of the building project was yet to start. Concluding that the sum 9,500 remitted by them to the appellant for the said flat had actually been converted into Rupees and used by the appellant and/or OP 2 for their own purposes, the complainant arrange to serve a lawyers letter/notice on OP 2 seeking refund of the amount by 16. 04. 1998. Neither the appellant nor OP 2 responded to this notice, following which the complainant spoke with OP 2 on telephone, cancelled the booking of the flat and claimed refund of the money paid for the flat with interest. There was protracted correspondence between the parties thereafter. Finally, the complainant served another demand notice dated 04. 08. 1999 on both the appellant and OP 2 claiming 19,159 (including the principal sum of 9,500, interest and compensation) within 7 days from the date of receipt of the notice, which too did not elicit any response. This led the complainant to file the complaint in question before the State Commission in November 1999.

(3.) THE impugned judgment of the State Commission notes that in his written version, the appellant denied the material allegations and contended, inter alia, that the complaint was not maintainable. The matter could be agitated only before an appropriate civil court as it involved issues of recovery of the money the complainant stated to have paid. The appellants second argument in his written version was that the consumer complaint was also not maintainable because the complainant had filed a criminal case against the opposite parties for the same cause of action. The State Commission pointedly observes that the appellant did not advance any pleadings on the merits of the complaint and that OP 2 contested the case by merely filing written note of arguments.