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WEST BENGAL STATE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLKATA
Dipa Sen (Maity), Presiding Member and Subhra Sankar Bhatta, Judicial Member
Sabita Shaw – Appellant
versus
Axis Bank and Ors. – Respondents
First Appeal No.A/97/2021
(Arisen out of Order Dated 29/10/2021 in Case No.CC/332/2021 of District Kolkata-II (Central))
Decided on 22.9.2023
Counsel for the Parties:
For the Appellant:Mr. S.S. Ghosh, Advocate
For the Respondent:Ms. Soni Ojha, Advocate
For the Respondent:Ms. Gargi Chakraborty, Advocate
Headnote:
Consumer Protection Act, 1986 – Section 15[Consumer Protection Act, 2019 – Sections 41, 38] – Appeal – absence of cause of action – Maintainability of claim - Real Estate – Allotment of Plots / Flats – On facts, the present Appellant/Complainant is not at all a consumer under Respondent Nos. 1 and 2/Axis Bank. It is crystal clear from the materials available on record that the Appellant/Complainant did not avail any service from the Axis Bank at any point of time. It is an admitted position that Respondent Nos. 1 and 2/Axis Bank did not join as a party in the sale agreements dated 27.07.2020 and 19.05.2021 respectively. Thus being the position it can be safely concluded that the terms and conditions of the sale agreements dated 27.07.2020 and 19.05.2021 are not at all binding upon the Respondent Nos. 1 and 2/Axis Bank - Undoubtedly, the claim of the Appellant/Complainant is not maintainable or sustainable in the eye of law. In fact, Appellant/Complainant cannot claim that Respondent Nos. 1 and 2/Axis Bank are not liable to return the title and issue NOC in favour of the Appellant/complainant. No cause of action has arisen at any point of time between the Appellant/complainant and the Axis Bank over the issue of house building loan in question – Thus, Appeal dismissed. [Paras 8, 9].
Result: Appeal dismissed.
ORDER
Subhra Sankar Bhatta, Judicial Member—This appeal has been preferred at the instance of the Appellant viz. Sabita Shaw who was the original Complainant before the District Consumer Disputes Redressal Commission, Kolkata Unit-II (Central) (hereinafter referred to as ‘the District Commission’ for short) assailing the impugned order dated 29.10.2021 vide order no. 3 passed by the District Commission in connection with consumer Complaint Case no. CC/332/2021 whereby Ld. District Commission was pleased to dispose of the Miscellaneous Application no. 372/2021 being not tenable. The impugned order runs as follows:—
“In view of the above discussion, we refused to grant permission to file the instant consumer complaint to this Commission and complaint should be filed at a place where the cause of action has arisen.
Thus, Miscellaneous Application being no. 372/2021 is disposed of.
In view of forgoing observation, Complai-nant’s application dated 06.09.2021 under Section 38(8) of the C.P. Act, 2019 is not tenable. Thus, MA being no. 372/2021 is disposed of.
Order be uploaded on www.confonet. nic.in.”
2. Feeling aggrieved by and dissatisfied with the above order of the Ld. Commission the Complainant as Appellant has preferred the present appeal on various grounds as canvassed in the memorandum of appeal. It has been contended in the memorandum of appeal that the impugned order of the Ld. District Commission is without jurisdiction; that the Ld. District Commission failed to appreciate the fact that OP No. 3 surrendered his loan liability to the Petitioner/Appellant by way of an agreement in writing and OP Nos. 1 and 2 accepted the payment of dues towards the said loan from OP No. 3; that the Ld. District Commission did not consider the letter of reply given by OP Nos. 1 and 2 to the Petitioner acknowledging the payments for and on behalf of OP No. 3 and also asked the Petitioner/Appellant to take back of Rs.25,38,823/-; that the Ld. District Commission also failed to appreciate that despite getting the dues Respondent Nos. 1 and 2 did not handover the original documents/title deed and NOC to Respondent No. 3; that the observation of the District Commission to the effect that Ld. Commission below has no territorial jurisdiction to try the complaint case is absolutely erroneous. On all such grounds the Appellant has prayed for allowing the present appeal after setting aside the impugned order of the Ld. District Commission.
3. Fact of the case, in a narrow campus, is that the Complainant/ Appellant herein instituted the petition of complaint before the Ld. District Commission on 6th September, 2021 praying for reliefs and redressal as sought for in the prayer portion of the petition of complaint. It has been contended that OP No. 3 had purchased the two storied building in question measuring an area of 700 sq.ft. each with bastu land after obtaining house building loan from Opposite Party no. 1/Axis Bank. Subsequently, OP no. 3 executed an agreement for sale with the son of the Complainant to purchase the said building and land at a total consideration of Rs. 35,00,000/- on condition to repay the balance housing loan of OP No. 3. During the existence of the agreement for sale deed dated 27.07.2020 purchaser Bitoo Shaw died. After the demise of Bitoo Shaw the Complainant being the mother of the deceased paid the entire dues of the Bank and a fresh agreement for sale was executed between the Complainant Smt Sabita Shaw and OP No. 3 Mohon Shaw on 19th day of May, 2021. Complainant Sabita Shaw paid the entire loan amount of Rs.25,63,231/- to the OP No. 1/Bank with a request to foreclose the loan account of OP no. 3 with the further request to issue NOC in her favour. It has been specifically contended that despite payment of entire dues the OP No. 3/Axis Bank did not issue NOC in favour of the Complainant. Consequently, OP No. 3 failed and neglected to execute and register the said building with bastu to the Complainant. It has be
