BEFORE THE HON'BLE STATE CONSUMER DISPUTE
REDRESSAL COMMISSION AT WEST BENGAL
F. A. No. of
2021
In the matter of :
An application under Section
41 of the Consumer Protection
Act, 2019 read with other
relevant provisions and section
of the said Act.
AND
In the matter of:
Impugned order dated
24.09.2020 passed by the
District Consumer Disputes
Redressal Forum, Hooghly at
Chinsurah, in Case No.
CC/10/2018, (Smt. Lina Laha &
Anr. – Vs – Sri New Tara Maa
Enterprises.
2
AND
In the matter of :
New Tara Maa Enterprises,
having its Office at 28/1, Dr. P.
T. Laha Street, Post Office and
Police Station – Rishra, District
– Hooghly, represented by it’s
Proprietor Bidyadhar Rout, son
of Krishna Chandra Rout,
resident of 28/1, Dr. P. T. Laha
Street, Post Office and Police
Station – Rishra, District –
Hooghly, at present residing at
Tarakdham, 29/A, N. K.
Banerjee Street Post Office and
Police Station – Rishra, District
– Hooghly, Pin No. – 712248.
… Opposite Party/
Appellant
Versus
1. Smt. Lina Laha, wife
of Late Biswanath Laha;
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2. Sri Rup Kumar Laha,
son of Late Biswa Nath
Laha
1 and 2 both residing at
92/A/1, N. K. Banerjee Street
Post Office and Police Station
– Rishra, District – Hooghly,
Pin No. – 712248;
… Complainant/
Respondents
MEMO OF APPEAL
1. This appeal is directed against the Judgment and Order
dated 24.09.2020 passed by the District Consumer
Disputes Redressal Forum, Hooghly at Chinsurah, in
Case No. CC/10/2018, (Smt. Lina Laha & Anr. – vs – Sri
New Tara Maa Enterprises).
2. The Opposite Party/ Appellant have duly deposited the
necessary fees with this Hon’ble Commission.
3. This appeal is barred by limitation, is accompanied by a
petition for condonation of delay.
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4. The brief facts of the case are as follows:-
i) That the Complainants/ Respondents herein are
the permanent resident of 92/A/1, N. K. Baneriee
Street, P.S. Rishra, Dist - Hooghly and as they
neither have any experience nor any financial
capacity to raise any multi-storeyed building so
they entered into an Development Agreement with
the Opposite Party/ Appellant herein on 25/02/2015
being Deed No. 01634 for the year 2015 which
was Registered before the Additional District Sub-
Registrar Serampore, Hooghly, wherein it had
categorically been mentioned that the Opposite
Party/ Appellant herein “... having its registered
office at 28/1, Dr. P.T. Laha Street, Rishra,
represented by its Proprietor BIDYADHAR ROUT, S/o
Krishna Chandra Rout, byreligion – Hindu, by
Citizen – Indian, by Occupation – Business, resident
of 28/1, Dr. P. T. Laha Street, P.O. & P. S. – Rishra,
Dist – Hooghly …”.
Xerox copy of the Development Agreement
dated 25/02/2015 is annexed herewith and the
same is marked as Annexure “A” to this
application.
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ii) That as per the said Development Agreement
dated 25/02/2015 being Deed No. 01634 for the
year 2015 the Opposite Party/ Appellant herein had
to construct a multi-storeyed building, over the
land situated at Mouza – Rishra, J.L. No. 27 and
comprised in R.S. Plot No. 3350 under R.S. Khatian
No. 3040 comprised within Rishra Municipal
Holding No. 92/A/1, N. K. Baneriee Street, P.S.
Rishra, Dist - Hooghly and in the said Development
Agreement it was categorically mentioned that the
Developer (Opposite Party/ Appellant herein) shall
be the exclusive owner of 62% of the constructed
area and the owner i.e. the Complainants/
Respondents herein shall get 38% of the
constructed area and as per the said Development
Agreement dated 25/02/2015 being Deed No.
01634 for the year 2015 the Opposite Party/
Appellant herein handed over possession of Flat
No. 201, 202, 204 situated at the second floor of
the apartment comprised in 92/A/1, N. K. Baneriee
Street, P.S. Rishra, Dist - Hooghly to the
Complainants/ Respondents herein.
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iii) Your Appellant state that as per the
Complainants/ Respondents herein even after
entering into the said Development Agreement
dated 25/02/2015 being Deed No. 01634 for the
year 2015 the Opposite Party/ Appellant herein
most illegally and forcibly kept Flat No. 203 under
lock and key and did not hand over the possession
of the same inspite of repeated request by the
Complainants/ Respondents herein.
iv) Thereafter, the Respondents/ Complainants
herein filed a complaint case before the Learned
District Consumer Disputes Redressal Forum,
Hooghly at Chinsurah, and the same was numbered
as Case No. CC/10/2018 for an order that the
Complainants/ Respondents herein are entitled to
get 38% of the constructed area in terms of the
Development Agreement dated 25/02/2015 and
also for a direction to deliver khas and vacant
possession of Flat No. 203 of Krishna Apartment
and also for a direction to pay Rs. 50,000/- to the
Respondents/ Complainants herein as
compensation for mental agony and harassment
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and also for further direction to pay Rs. 1,00,000/-
for deficiency in service.
v) That though in the cause title of the said
complaint the Complainants/ Respondents herein
categorically mentioned that “... its office at 28/1,
Dr. P.T. Laha Street, P.O. & P.S. Rishra, Dist
Hooghly represented by its Proprietor Bidyadhar
Rout, Son of Krishna Chandra Rout, resident of
28/1, Dr. P. T. Laha Street, P.O. & P. S. Rishra, Dist.
Hooghly …” and also in paragraph No. 1 of their
complaint the Respondents/ Complainants herein
categorically submitted that “… office of the
opposite party situated at 28/1, Dr. P.T. Laha
Street, P.S. Rishra, Dist Hooghly …” but the reason
best known to them after filing the said complaint
same was summoned to the address 29/A, N. K.
Banerjee Street Post Office and Police Station –
Rishra, District – Hooghly, Pin No. – 712248 by
showing that at present the Appellant/ Opposite
Party herein residing at this address.
vi) That the Appellant states that the registered
cover through which summon was send to the
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Opposite Party/ Appellant herein to the address
29/A, N. K. Banerjee Street Post Office and Police
Station – Rishra, District – Hooghly, Pin No. –
712248 was returned back to the Learned District
Consumer with the endorsement not delivered but
even then and even considering the track report as
well as the envelop the Learned District Consumer
Disputes Redressal Forum, Hooghly at Chinsurah
on 04.01.2019 hold that “... Despite received the
summons that O.P. did not turn up. …” and on the
self same date the Learned District Consumer fix
the instant matter for exparte hearing.
vii) That the instant application being Case No.
CC/10/2018 had come up for final hearing on
24.09.2020 and the Learned District Consumer
Disputes Redressal Forum, Hooghly at Chinsurah
only after hearing the Complainants/ Respondents
herein direct the Opposite Party/ Appellant herein
to deliver the Flat No. 203 of Krishna Apartment
and possession certificate of Flat No. 201 to 204 of
Krishna Apartment to the Complainants/
Respondents herein and also direct to pay Rs.
10,000/- as litigation cost and Rs. 50,000/- to the
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Complainants/ Respondents herein for mental
agony and harassment within 45 days from the
date of passing of the order.
viii) Your Appellants submits that the Complainant
No. 1/ Respondent No. 1 herein i.e. Lina Laha make
the instant application being CC/10/2018 in
collusion with Complainant No. 2/ Respondent No. 2
herein without showing all documents and if the
Opposite Party/ Appellant herein get any
opportunity to appear in the instant application
then the Appellant/ Opposite Party herein clearly
show documents wherefrom it would appear that,
the Opposite Party/ Appellant herein already
handed over two separate flats being Flat No. 303
situated at 29/A, N.K. Banerjee Street to one son of
Complainant No. 1/ Respondent No. 1 Raj Kumar
Laha and Flat No. 305 situated at 19/4, Dr. P.T.
Laha Street to one son of Complainant No. 1/
Respondent No. 1 Deb Kumar Laha, both
measuring about more or less 600 Sq.Ft carpet
area each and also handed over a flat being No.
204 situated at 92/A/1, N. K. Banerjee Street to the
daughter of Complainant No. 1/ Respondent No. 1
i.e. to Sita Dutta, wife of Pronob Dutta measuring
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about more or less 439 Sq.ft. carpet area and also
handed over a store room in the ground floor being
No. G-4 situated at 92/A/1, N. K. Banerjee Street to
Respondent No. 1/ Complainant No. 1 herein
measuring about 100 sq.ft. carpet area.
ix) Your appellants submits that the Complainant
No.1/ Respondent No. 1 herein i.e. Lina Laha make
the instant application being CC/10/2018 in
collusion with Complainant No. 2/ Respondent No. 2
herein without showing all documents and if the
Opposite Party/ Appellant herein get any chance to
appear in the instant application then it clearly
show that the Proprietor of the Opposite Party/
Appellant herein had paid Rs. 5,98,000/- (Five Lakh
Ninty Eight Thousand) only for a) extra brick works,
b) cement plaster, c) plaster of paris, d) fream
fittings, e) doors labour charges, f) RCC Bunks with
labour charges, g) extra Kitchens material with
labour charges, h) extra Toilets (Bathrooms)
material and labour charges, i) extra electrical work
and AC Point Materials and labour charges, j) CESC
Meter charges, k) extra water tank and also paid
Rs. 2,00,000/- (Rupees Two Lakhs) only to the
Respondents/ Complainants herein through Cheque
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No. 895106 dated 20.03.2015 and Cheque No.
951874 dated 17.10.2016 both drawn from United
Bank of India Rishra Brance.
x) Your appellants submits that that the
Complainant No.1/ Respondent No. 1 herein i.e.
Lina Laha make the instant application being
CC/10/2018 in collusion with Complainant No. 2/
Respondent No. 2 herein without showing all
documents and if the Opposite Party/ Appellant
herein get any chance to appear in the instant
application then the Opposite Party/ Appellant
herein clearly show that after getting the above
stated flats and monetary value the Complainant’s/
Respondent’s claim of 38% constructed area had
been handed over to them and they are not been
able to claim anything from the Opposite Party/
Appellant herein and the Learned District forum
without granting any opportunity to the Opposite
Party/ Appellant herein and without properly
considering the materials on record adjudicating
the case and passed the Order impugned.
xi) Your Appellants state that though the impugned
Judgment and Order was passed by the District
12
Consumer Disputes Redressal Forum, Hooghly at
Chinsurah, in Case No. CC/10/2018, (Smt. Lina Laha
& Anr. – vs – Sri New Tara Maa Enterprises) on or
about 24.09.2020 but the Respondents/
Complainants herein send the copy of the said
order through Speed post on 29.12.2020 to the
Opposite Party/ Appellant herein at its address at
28/1, Dr. P. T. Laha Street, Post Office and Police
Station – Rishra, District – Hooghly, Pin No. 712248
and as the Proprietor of New Tara Maa Enterprises
reside at that address, he for the first time get the
knowledge of the same as and when the same was
delivered to him.
Xerox copy of the envelop send by the
Respondents/ Complainants herein on 29.12.2020
to the Appellant/ Opposite Party herein is annexed
herewith and the same is marked as Annexure
“B” to this application.
xii) Your appellants state that in such
circumstances, it is necessary for this Learned
Commission to interfere in the matter, call for
records and consider afresh the matter so that
13
conscionable justice may be administered in the
instant matter.
5. Being aggrieved by and dissatisfied with the Judgment
and Order dated 24.09.2020 passed by the District
Consumer Disputes Redressal Forum, Hooghly at
Chinsurah, in Case No. CC/10/2018, (Smt. Lina Laha &
Anr. – vs – Sri New Tara Maa Enterprises) the appellants
herein prefer this appeal on the following amongst other
GROUNDS
I) For that the Judgment and order dated
24.09.2020 passed by the District Consumer
Disputes Redressal Forum, Hooghly at Chinsurah,
in Case No. CC/10/2018, (Smt. Lina Laha & Anr. – vs
– Sri New Tara Maa Enterprises) is vitiated by
erroneous finding of facts and laws.
II) For that the Learned Forum below has
acted illegally and with material irregularity in not
considering that the Complainant/ Respondents
herein categorically mention and utter in their
application being CC/10/2018 that New Tara Maa
Enterprises, having “…having its registered office
at 28/1, Dr. P.T. Laha Street, Rishra, represented by
14
its Proprietor BIDYADHAR ROUT, S/o Krishna
Chandra Rout, byreligion – Hindu, by Citizen –
Indian, by Occupation – Business, resident of 28/1,
Dr. P. T. Laha Street, P.O. & P. S. – Rishra, Dist –
Hooghly …” but they send the summon in
Tarakdham, 29/A, N. K. Banerjee Street Post Office
and Police Station – Rishra, District – Hooghly, Pin
No. – 712248.
III) For that the Learned Forum below has
acted illegally and with material irregularity in not
considering the track report submitted by the
Complainants/ Respondents herein wherefrom it is
appearing that the Article was handed over to the
Chinsurah Court Sub Office Postal Authority on
09.10.2018 at about 12:07:04 hr and as such it is
clear that the summon had been returned back to
that post office on 27.10.2018 at about 10:12:08
hrs and as such it had not been served and no
information had been given to the Opposite Party/
Appellant herein.
IV) For that the Learned Forum failed to
consider that as the said article which had been
15
handed over to the Chinsurah Court Sub Office
Postal Authority on 09.10.2018 at about 12:07:04
hr was returned back to that post office on
27.10.2018 at about 10:12:08 hrs then the same
had not been served and even no intimation had
been given to the Opposite Party/ Appellant herein
about the fact that a proceeding is pending against
it before any Court or Forum.
V) For that the Learned Forum erred in law
and fact in not considering that as the registered
cover through which summon was send to the
Opposite Party/ Appellant herein had been returned
back to the Learned Forum with the endorsement
not delivered, so the Learned District Forum should
had to express its opinion that as the service by
registered post on the basis of report of the postal
peon had not been accepted it is not a good service
but even after considering the track report as well
as the envelop the Learned District Forum on
04.01.2019 hold that “... Despite received the
summons that O.P. did not turn up. …” and fix the
instant matter for exparte hearing.
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VI) For that the Learned Forum erred in law
and fact in not considering the law of service as
reported in AIR 1970 Madras 271, wherein the
Madras Full Bench has held that the Court should
declare expressly that the summons has been duly
served and although there is no form for such
declaration but such declaration in essence must
be there, in the said judgment it is also directed
that the presiding officer should apply his mind and
should consider as to whether or not the summons
has been duly served or not.
VII) For that the Learned Forum erred in law
and fact in not considering the law of service as
reported in Kashitish Chandra Kayal versus Abinash
chandra Halder (86 CWN page 100) wherein the
Hon’ble High Court at Calcutta held that it was
obligatory on the part of the Learned Judge to
consider as to whether or not summons had been
duly served and to get a finding to that effect.
VIII) For that the Learned Forum below failed
to consider that the Complainant No.1/ Respondent
No. 1herein i.e. Lina Laha make the instant
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application being CC/10/2018 in collusion with
Complainant No. 2/ Respondent No. 2 herein
without showing all documents and if the Opposite
Party/ Appellant herein get an opportunity to
appear in the instant application then it clearly
show documents, wherefrom it would appear that it
handed over two separate flats being Flat No. 303
situated at 29/A, N.K. Banerjee Street to one son of
Complainant No. 1/ Respondent No. 1 Raj Kumar
Laha and Flat No. 305 situated at 19/4, Dr. P.T.
Laha Street to one son of Complainant No. 1/
Respondent No. 1 Deb Kumar Laha, both
measuring about more or less 600 Sq.Ft carpet
area each and also handed over a flat being No.
204 situated at 92/A/1, N. K. Banerjee Street to the
daughter of Complainant No. 1/ Respondent No. 1
herein i.e. to Sita Dutta, wife of Pronob Dutta
measuring about more or less 439 Sq.ft. Carpet
area and also handed over a store room in the
ground floor being No. G-4 situated at 92/A/1, N. K.
Banerjee Street to Complainant No. 1/ Respondent
No. 1 herein measuring about 100 sq.ft. carpet
area.
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IX) For that the Learned Forum below failed
to consider that the Complainant No.1/ Respondent
No. 1 herein i.e. Lina Laha make the instant
application being CC/10/2018 in collusion with
Complainant No. 2/ Respondent No. 2 without
showing all documents and if the Opposite Party/
Appellant herein get any opportunity to appear in
the instant application then it clearly show that the
Proprietor of Opposite Party/ Appellant herein had
paid Rs. 5,98,000/- (Five Lakh Ninty Eight
Thousand) only for a) extra brick works, b) cement
plaster, c) plaster of paris, d) fream fittings, e)
doors labour charges, f) RCC Bunks with labour
charges, g) extra Kitchens material with labour
charges, h) extra Toilets (Bathrooms) material and
labour charges, i) extra electrical work and AC
Point Materials and labour charges, j) CESC Meter
charges, k) extra water tank and also paid Rs.
2,00,000/- (Rupees Two Lakhs) only to the
Respondents/ Complainants herein through Cheque
No. 895106 dated 20.03.2015 and Cheque No.
951874 dated 17.10.2016 both drawn from United
Bank of India Rishra Brance.
19
X) For that the Learned Forum below has
failed to consider that the Complainant No. 1/
Respondent No. 1 herein i.e. Lina Laha make the
instant application being CC/10/2018 in collusion
with Complainant No. 2/ Respondent No. 2 herein
without showing all documents and if the Opposite
Party/ Appellant herein get any opportunity to
appear in the instant application then it clearly
show that after getting the above stated flats and
monetary value the Complainant’s/ Respondent’s
claim of 38% constructed area had been handed
over to them and they are not been able to claim
anything from the Opposite Party/ Appellant herein.
XI) For that the Learned Forum below failed
to consider that the Opposite Party/ Appellant
herein is not liable for deficiency of service in any
way whatsoever and that the issue is totally of a
civil in nature and the Consumer Forum had no
jurisdiction to entertain such matter.
XII) For that Learned Forum below did not
discharge its duties properly inasmuch as the said
Judgment and order dated 24.09.2020 passed in
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Case No. CC/10/2018, (Smt. Lina Laha & Anr. – vs –
Sri New Tara Maa Enterprises) cannot be regarded
as a Judgment in the eye of law.
XIII) For that Learned Forum below passed the
Judgment and order dated 24.09.2020 passed by
the District Consumer Disputes Redressal Forum,
Hooghly at Chinsurah, in Case No. CC/10/2018,
(Smt. Lina Laha & Anr. – vs – Sri New Tara Maa
Enterprises) in a cryptic manner and moreso, it
does not reflect conscious application of mind and
finding supported by reasons on all the issues
arising along with the contentions put forth.
XIV) For that the appellants have made out a
good prima facie case to enable the Learned
Commission to call for records and pass
appropriate orders in the instant consumer dispute
since the Learned Forum below had acted in
exercise of its jurisdiction illegally and/or with
material irregularity while passing the impugned
Order.
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XV) For that the impugned order is otherwise
bad in law and should be set aside and/or
withdrawn and/or quashed.
6. Your appellants state that it is fit case for the Learned
Commission to call for records and pass appropriate
orders in the instant consumer dispute since the
Learned Forum below had acted in exercise of its
jurisdiction illegally and/or with material irregularity
while passing the impugned Order.
7. It is most respectfully stated that the appellants shall
suffer most serious prejudice unless an order is made as
prayed for.
8. In the circumstances as aforesaid it is most respectfully
prayed for
Under the aforesaid
circumstances, it is most
humbly prayed that Your
Lordships would graciously be
pleased –
22
a. To admit the instant appeal
and issue show cause notice
upon the Respondents;
b. To stay the operation of the
impugned order;
c. To pass an Ad-interim
orders in terms of prayer a)
and b) hereinabove;
d. To set aside the impugned
order;
e. To quash the impugned
proceeding;
f. To call for the records of the
case from the District
Consumer Disputes
Redressal Forum, Hooghly
at Chinsurah so as
conscionable justice may
herein be administered;
g. Costs for such illegal acts;
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h. To pass any such
order/orders that the
Hon’ble Commission may
deem fit and proper.
Certified that the grounds
mentioned are good grounds
and I undertake to argue the
same at the time of hearing.
Advocate
AFFIDAVIT
I, Bidyadhar Rout, son of Late Krishna Chandra Rout, aged
about 51 years, by faith : Hindu, by occupation : Business,
sole proprietor of the New Tara Maa Enterprises, residing at
28/1, Dr. P. T. Laha Street, Post Office and Police Station –
Rishra, District – Hooghly, Pin No. 712248, do hereby state as
follows :-
1. That I am the Appellant of the instant application and as
such I am well acquainted with the facts and
circumstances of the instant case and I am competent to
sign and affirm this affidavit.
2. That the statements made in paragraphs 1 to 4 are true
to my knowledge and matters of record which I verily
believe to be true and the rests are my respectful
submissions before this Learned Forum.
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Prepared in my Office
DEPONENT
Advocate Known to me,
identified by me and
signed in my
presence
Advocate
THE HON'BLE STATE
CONSUMER DISPUTE
REDRESSAL
COMMISSION AT WEST
BENGAL
F. A. No. of 2021
In the matter of :-
New Tara Maa Enterprises
… Opposite Party/ Appellant
- Versus -
Smt. Lina Laha & Anr.
… Complainant/ Respondents.
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MEMORANDUM OF APPEAL
ADVOCATE-ON-RECORD :
Mr. Abhisek Banerjee,
Advocate,
Enrolment No. WB/1436/2006
High Court, Calcutta,
Bar Association, Room No. 15
Ph No. 9433423033 (M)
. 9830500790 (M)
