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WEST BENGAL STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CALCUTTA
Manojit Mandal, President, Samiksha Bhattacharya, Member and Shyamal Kumar Ghosh, Member
Bulbul Mondal – Appellant
versus
Samir Chatterjee – Respondent
First Appeal No.A/446 of 2019
Decided on 2.2.2023
Consumer Protection Act, 1986 – S.19 [Consumer Protection Act, 2019 – S.51] – Appeal against order of State Commission – Real Estate – Agreement to Sell - No proof of delivery of Possession – Continuous cause of action – no bar to pass order against legal heirs - not barred by Limitation - Whether the complainant/appellant is a consumer since the complainant has entered into the Agreement for sale for purchasing two flats - As per Clause 6 of both the Agreements for sale, it was agreed that rest amount would be paid by the complainant/appellant/purchaser at the time of delivery of possession of the flats as well as at the time of delivery of the possession of the covered space - Therefore, there is no question arises at all to pay the balance consideration amount by the complainant since the possession has not been offered to the complainant till date. The Respondents No. 2 & 3 have failed to produce single scrap of paper that they have offered the delivery of possession and complainant has failed to pay the balance consideration or the Respondent No. 1, since deceased, had offered the possession and demanded the balance consideration - Neither of the Agreements for sale has been cancelled by the Respondent No. 2 & 3 – Therefore, both the agreements are in force and the possession of the flats and the car parking space are not being delivered to the complainant, therefore, there is continuous cause of action and the case is not barred by limitation. Therefore, the Ld. Forum has erred in passing the judgment observing that the case is barred by limitation - Upon hearing the parties and on perusal of the record it appears to us that OP No.1 purchase the property and he became the owner of the property. Therefore, there is no bar to pass any order against his legal heirs since the legal heirs are now the land-owners of the property in question – thus, deficiency in service and unfair trade practice on the part of the Respondents No. 2 & 3 since deceased and as such complainant is entitled to relief. As a result, the judgment passed by the Ld. District Commission is hereby set aside - Respondents No. 2 & 3 are directed to deliver the possession of the flats and the covered space to the Appellant/Complainant within 45 days from the date of passing this order. [Paras 20 to 30].
Result: Appeal allowed.
JUDGMENT
Samiksha Bhattacharya, Member—The instant appeal has been directed by the appellants u/s 15 of C.P. Act, 1986 against the order dated 12.03.2019 in Case No. CC/37/2017 passed by the Ld. District Commission (DCDRC), South 24 Parganas.
2. The facts of the case, in brief,are that the Appellant is an intending purchaser of two self-contained flats being Flat No. 1 and Flat No. 5 for his entire joint family depending upon the complainant on the second floor and a covered space in the premises situated at Mouja Parbangla, DaulatpurRoad, P.S. Maheshtala, South 24 Parganas. Accordingly, two agreements for sale were executed between the complainant and the respondent No. 1/OP, since deceased on 26.05.2009. As per agreement, the complainant entered into the agreement for sale of two flats being No. 1 & 5, super built-up area more or less 1500 sq.ft. on the second floor, each of 875 sq.ft. for a total consideration of Rs.13,12,500 and a covered space with an intention to use it as garage measuring about 70 sq. ft. for a consideration price of Rs.1,00,000/-. Out of total consideration of Rs.14,12,500/- for the flats and the covered space, the complainant paid an amount of Rs.4,00,000/- for purchasing the flats and Rs.30,000/- for purchasing the covered space as advance. It was agreed that the balance amount of sale consideration will be paid at the time of handing over the possession of the premises by the Respondent No. 1/OP, since deceased. As per agreement, the Respondent No. 1/OP, since deceased agreed to hand over the possession of the flats by December 2011. But the promoter failed to handover the possession of the flat and the covered space as per agreement for sale within the time limit. Under this circumstance, the complainant sent a letter dated 04.07.2016 requesting the OPs to get the said flats registered in the name of the complainant as well as handover the possession of the flats within 10 days from the receipt of the notice. But no reply has been received by the complainant till date. After waiting for a long time, complainant again sent a final notice on 04.01.2017 to the Respondent No. 1/OP, since deceased but the letter could not be served with a postal endorsement “insufficient address”.
3. Finding no other alternative, the appellant/complainant filed the complaint being No. CC/37/2017 before the Ld. DCDRC, South 24 Parganas praying for a direction upon Respondent No.1/OP, since deceased to deliver the possession letter along with completion certificate as per Municipal Building Rule, execution and registration of the deed of conveyance and handing over the physical possession of the flats as early as possible. Complainant has also prayed for a direction upon Respondent No.1/OP, since deceased to pay compensation @ of 12% as admissible on advance payment for a period commencing from the date of specified delivery of possession i.e., 30.12.2011 to the date of handing over the possession of the flats along with compensation of Rs.1,00,000/- for causing physical harassment and mental agony and for deficiency in service and Rs.50,000/- as litigation cost.
4. Respondent No.1/OP, since deceased filed written version to contest the case before the District Commission.
5. In his written version, OP denied all material allegations inter alia stated that the complainant agreed to purchase two flats on second floor measuring about 1500 sq. ft. super built-up area in total along with a cover space of 70 sq. ft. for use of a garage space and consented for variation of measurement, if needed, at the time of sanction of the plan for construction and the consideration amount would be varied and fixed at the same rate of Rs.875/- per sq. ft. at the time of registration and possession. Complainant paid Rs.4,00,000/- for the flats in question and Rs.30,000/- for the covered space. The complainant has suppressed the material fact that he agreed to the terms and conditions of the ParasNo. 13 and 14 of page No. 11 of the Agreement
(1) Limitation - Both the agreements are in force and the possession of the flats and the car parking space are not being delivered to the complainant, therefore, there is continuous cause of action ....
(1) Power of attorney - In absence of power of attorney, OPs No. 1 & 2 have no power to construct the building or to execute and register the deed of conveyance in favour of the complainant.(2) Natur....
The court affirmed the validity of executing and registering the sale deed upon payment of the balance consideration while dismissing claims of defects due to lack of prior complaints.
Non-execution of the Sale Deed by Respondent in favour of the appellant sufficiently indicates that total amt. of consideration was not received by the Respondent.
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