Sudip Ahluwalia, Member

The instant Appeal has been filed under Section 19 of the Consumer Protection Act, 1986 (for short "the Act") in challenge to the Order dated 27.09.2018 of the State Consumer Disputes Redressal Commission, Kolkata (hereinafter referred to as the "State Commission") in Complaint No. 858 of 2017 whereby the Complaint was allowed ex-parte.

2. Brief facts of the case are that on 28.05.2011, the Complainant(s) entered into an Agreement for Sale with the O.Ps to purchase of a self-contained residential Flat measuring about 1427 sq. ft. on the 3rd floor at Premises No. 66B, Sisir Bhaduri Sarani (erstwhile Manicktala Street), P.S -Amherst Street, Kolkata - 700006 within the local limits of Ward No. 27 of Kolkata Municipal Corporation at a total consideration of Rs.55,51,650/- only @ Rs.3650/-per sq. ft. The Complainants claimed that they had already paid Rs.62,70,000/-, an excess amount as the O.Ps promised to deliver the remaining portion of 3rd Floor measuring about 512 sq. ft. at Rs.18,68,800/- @ Rs.1521/- per sq. ft. As per Agreement, the O.Ps were under obligation to complete the construction within 18 months from the date of execution of Agreement. However, the O.Ps failed to keep their promise and in this regard, all persuasions of the Complainant(s), including payment of additional amount, and correspondences went in vain. Hence, the Complainants lodged the Complaint for deficiency in service. Despite service of notice upon O.P. Nos. 2 & 3 on 28.12.2017, they did not appear. The Notice upon O.P. No. 3 was served in a substituted manner through the publication in a leading Bengali Newspaper dated 03.05.2018 published from Kolkata. Since the (O.Ps) neither appeared nor filed any Written Versions, the Complaint was heard ex parte.

3. The Complaint had been filed before the State Commission, Kolkata with the following prayers:-

                   A. An order issuing notice upon the opposite parties;

                   B. An order directing the opposite parties to forthwith complete all construction of the flats allotted to the complainants and located at the third floor of the building at 66B, Sisir Bhaduri Sarani, Kolkata- 700 006 more specifically described in the schedule below;

                   C. An order directing the opposite parties to forth with convey the title of the flats allotted to the complainants and located at the third floor of the building at 66B, Sisir Bhaduri Sarani, Kolkata-700006 after making the flats habitable and getting necessary completion certificate from the Municipal Authorities more specifically described in the schedule below. In alternative pass an order directing the opposite parties to return the consideration money already paid to the opposite parties along with 10% p.a. interest upon the amount calculated from the date of receipt of payment till the date of refund;

                   D. An order directing the opposite parties to pay to the complainants a sum of Rs.2,50,000 (Rupees Two Lakh Fifty Thousand Only) on account of the complainants having to purchase flooring material like marble, ceramic tiles, electric equipment's, steel gate, etc.;

                   E. An order directing the opposite parties to pay cost of Rs.15,00,000 on account of deficiency in service;

                   F. An order directing the opposite parties to pay cost of Rs.6,00,000 on account of inconvenience mental pain and agony, caused to the complainants;

                   G. Cost of the proceedings and pass such other order as may be deemed fit and proper.

4. After considering the contentions raised before it, the State Commission allowed the Complaint ex-parte on the ground of deficiency in service as the O.Ps had neither appeared nor filed any Written Versions.

5. Aggrieved by the Order dated 27.09.2018 of the State Commission, the Opposite Party No. 1 has filed the instant Appeal before this Commission with following prayers inter alia -

                   A. Set aside the impugned order dated 27.09.2018 passed by the Hon'ble Sate Commission in Complaint No. CC/858/2017;

                   B. Pass direction upon the Hon'ble Sate Consumer Dispute Redressal Commission, West Bengal in Complaint No. CC/858/2017 to re-open the proceedings; recall its order dated 27.09. 2018 & take on record written version of the appellant and consider the case of the appellant on its own merits;

6. Before us, the Counsel for the Respondent Nos. 1 and 2 submitted that Notice of the Complaint was duly issued to all the Opposite Parties. Despite service of Notice, the Opposite Parties No. 2 and 3, namely Sri Sushil Poddar and Smt. Sushuma Poddar, failed to appear before the State Commission, and consequently, the matter was proceeded ex parte against them. With regard to Opposite Party No. 1, namely Smt. Shyamali Paul (the Appellant herein), it was contended that she deliberately avoided service of Notice. In view thereof, the State Commission was pleased to direct service upon Opposite Party No. 1 through substituted service by way of paper publication. Despite such substituted service, Opposite Party No. 1 failed to appear, and accordingly, the proceedings were also conducted ex parte against her.

7. Further, as the Appellant failed to comply with the Order of the State Commission, the Complainants initiated execution proceedings before the State Commission, West Bengal. In the said execution proceedings, the State Commission was pleased to appoint an Engineer Commissioner, namely Sri Utpal Gangopadhyay. Pursuant thereto, the Learned Engineer Commissioner inspected the subject property in the presence of the Complainants/Decree Holders as well as the Owners, namely Smt. Shyamali Paul, Sri Sushil Poddar, and Smt. Sushma Poddar, and submitted his Report before the State Commission. The said Report reveals that the area of the Flat situated on the third floor of the premises measures approximately 1018 sq.ft.

8. Further, it was contended that the records would reveal that the Appellant, being one of the Owners-cum-Developers as described in the Agreement for Sale, has preferred the present Appeal on frivolous grounds, whereas the other two Owners-cum-Developers did not challenge the Order passed by the State Commission, West Bengal. This clearly demonstrates that the sole intention and motive of the Appellant is to harass the Complainant, who is the purchaser of the Flat.

9. Lastly it has been argued that the Appellant has failed to place on record any material regarding completion of construction or obtaining of the building Completion Certificate from the concerned Municipality. This omission clearly indicates that the Appellant, being the Owner-cum-Developer, has failed to discharge her obligations, duties, and responsibilities as a Builder/Developer, thereby constituting negligence and deficiency in service.

10. Ld. Counsel for Respondents No. 3 and 4 reiterated the facts of the case and submitted that the alleged Agreement for Sale dated 28.05.2011 was executed solely between the Appellant and Respondent Nos. 1 and 2. The said Agreement for Sale was executed behind the back of Respondent Nos. 3 and 4, who were neither parties to the Agreement nor informed of its execution.

11. It was further contended that the Agreement for Sale dated 28.05.2011 does not bear the signatures of Respondent Nos. 3 and 4. Additionally, the schedule of payment of the consideration amount appended to the said Agreement has been signed exclusively by the Appellant.

12. Further, it was argued that there was no hiring of services for housing construction by Respondent Nos. 1 and 2, and that the transaction in question was one of outright sale of the Flat. The said transaction constitutes a case of sale simpliciter, which does not fall within the ambit of the Consumer Protection Act, and therefore, the Complaint was not maintainable. It was additionally contended that Respondent Nos. 3 and 4 did not receive any payment whatsoever from Respondent Nos. 1 and 2, as would be evident from the money receipts, bank statements, and the letters dated 07.03.2015, 27.04.2017, and 07.05.2017.

13. Furthermore, it was argued that in view of the facts and legal principles, there exists no privity of Contract between Respondent Nos. 1 and 2 and Respondent Nos. 3 and 4. Respondent Nos. 1 and 2 never paid any portion of the consideration amount to Respondent Nos. 3 and 4, and consequently, there was no hiring of services by Respondent Nos. 1 and 2 from Respondent Nos. 3 and 4. Accordingly, in the absence of any Agreement between Respondent Nos. 1 and 2 and Respondent Nos. 3 and 4, Respondent Nos. 1 and 2 cannot be construed as Consumers of Respondent Nos. 3 and 4 under the Consumer Protection Act.

14. Further, it is pertinent to mention that the letter dated 7.3.2015 (Page Number 93 of Memo of Appeal written by Respondent Number 1 to the Appellant clearly specifies that the Appellant received a sum of Rs.55,50,000/- as Earnest money from Respondent Nos. 1 and 2. From the contents of the said letter, it is evident that the entire transaction relating to the said Flat was conducted exclusively between the Appellant and Respondent Nos. 1 and 2. Accordingly, Respondent Nos. 1 and 2 demanded delivery of possession and execution and registration of the Deed of Conveyance from the Appellant, who is one of the landowners of the premises bearing KMC No. 66B, Sisir Bhadury Sarani, Kolkata-700006.

15. It has also been argued that Section 2(1)(g) of the Consumer Protection Act, 1986 defines "deficiency" as any fault, imperfection, shortcoming, or inadequacy in the quality, nature, or manner of performance which is required to be maintained by or under any law for the time being in force, or which has been undertaken to be performed by a person in pursuance of a contract or otherwise, in relation to any service. In the present case, no deficiency can be attributed to Respondent Nos. 3 and 4, as they do not render any service to Respondent Nos. 1 and 2 in the capacity of service providers. Consequently, no case of deficiency in service is made out against Respondent Nos. 3 and 4.

16. We have considered the rival contentions and perused the material available on record.

17. The core grievance of the Appellant is that she was denied an opportunity to contest the Complaint filed against her by suppressing service of Notice upon her in a clever manner by the Respondent No. 1/Complainant. To support this contention, Ld. Counsel for the Appellant drew our attention to the fact that service in respect of the Appellant was effected in a substituted manner by way of publication in a vernacular Newspaper having significantly lesser circulation than the vernacular Daily "Anand Bazar Patrika" in the city of Kolkata, in which the parties are based. It has also been submitted that no publication in any leading English newspaper of the area was effected. This according to the Appellant side was a calculated strategy on the part of the Respondent/Complainant to ensure that service of Notice upon her may remain suppressed.

18. To further substantiate this contention, Ld. Counsel has drawn our attention firstly to the original Agreement for Sale executed between the parties way back on 28.5.2011, in which the address of the Appellant/Opposite Party had been shown as follows -

                   'SRIMATI SHYAMALI PAUL, wife of Sri Khagen Paul, previously residing at 68/4/1, Durga Charan Mitra Street, Kolkata- 700006, at present residing at 35/7/F, Adhar Chandra Das Lane, Kolkata-700067"

19. Now, in the Complaint (Annexure-P12) filed before the Ld. State Commission, the aforesaid two addresses of the Appellant had been depicted in the Memo of Parties (Page 122 of the Paper Book). Ld. Counsel for the Appellant thereafter drew our attention to two subsequent letters issued by the Respondent/Complainant to the Appellant which are on record as Annexure-P4 collectively. These are dated 22.12.2013 and 7.3.2015, which were issued by the Complainant/Respondent to the Appellant/Opposite Party on an altogether different address which happens to be "13-U, ARRIEF Road, 2nd Floor, Kolkata- 700067".

20. These two letters would clearly go to indicate that the Appellant had shifted from her original address as noted in the Agreement for Sale executed way back in 2011 which was well within the knowledge of the Complainant/Respondent. Our attention had also been drawn to the subsequent letter dated 27.4.23017 (Annexure-P6) issued by the Respondent to the Appellant in the form of a "LAST REMINDER NOTICE" on 27.4.2017, again on her new address as noted above. Thereafter, the Appellant from her side sent her Reply to the aforesaid Reminder Notice of the Complainant vide her letter dated 7.5.2017 (Annexure-P7) by Speed Post.

21. Four days later, the Complainant/Respondent approached the Hon'ble Minister of the Consumer Affairs Department, Government of West Bengal, vide his Complaint dated 11.5.2017 (Annexure-P8), on the basis of which a Notice was issued from the Directorate of Consumer Affairs to the Appellant on 16.6.2017 (Annexure-P9) again on her new address as noted above. Such documents on record would leave no scope to doubt at all that not only the Complainant/Respondent was aware of the actual residential address of the Appellant, but had also corresponded with her continuously on the said address for a period of at least four years. However, when he filed the Complaint, the only address mentioned in the Memo of Parties was that as shown in the original Agreement of Sale executed more than 6 years earlier. Such conduct would ipso facto indicate a positive element of fraud, wilful suppression of a material fact pertaining to the actual residence/address of the Appellant which was well within the knowledge of the Respondent/Complainant.

22. We asked the Respondent who appeared before us to explain why he had not disclosed or depicted the subsequent address of the Appellant, or sought to have her served in the Complaint at such address instead of depicting her old address alone, and having a publication effected in a single vernacular Newspaper having limited circulation in the city of Kolkata. The Respondent could not give any satisfactory answer to this question. He only said that he had correspondence with the Appellant at her new address of 'ARRIEF Road', and both sides had been cordial and visiting terms with each other before the dispute between them arose.

23. In this view of the matter, we are of the opinion that the Respondent/Complainant cannot be granted any indulgence by ignoring his visible conduct of suppressing the actual address of the Appellant well known to him, and thereafter obtaining an exparte Order against her in a dubious manner.

24. For the aforesaid reasons, the instant Appeal is allowed and the impugned Order passed by the Ld. State Commission is set aside.

25. The Appellant is granted liberty to file her formal reply in the Complaint before the next date to be fixed before the Ld. State Commission.

26. The parties are now directed to appear before the Ld. State Commission on 16.3.2026, which shall thereafter re-decide the Complaint on merits without granting any unnecessary adjournments to either side.

27. No orders as to costs.

28. Pending application(s), if any, also stand disposed off as having been rendered infructuous.