ORDER

The present First Appeal has been filed under Section 19 of the Consumer Protection Act, 1986 (“the Act”) against the Order dated 05.09.2018 passed by the learned West Bengal State Consumer Disputes Redressal Commission, Kolkata (“the State Commission”), in Consumer Complaint No.398 of 2015 wherein the State Commission partly allowed the complaint.

2. For convenience, the parties will be referred to as per their position in the original complaint before the State Commission. Dum Dum Club Town Residents Associates Club Town Estates will be denoted as the “Complainant’s Association” (“Respondent”), and Cannon Properties Pvt. Ltd., the Promotor Developer of Dum Dum Club Town Estates, will be referred to as the “Opposite Party (OP)” or “Developer” (“Appellant”).

3. Brief facts, as per the Complainant’s Association, are that during the development and sale of the property, the Opposite Party (OP) executed agreements for sale with the flat owners, stipulating that buyers must deposit a sinking fund towards the management, maintenance, repairs, and upkeep of the residential building and other necessary contingencies related to the housing complex, Dum Dum Club Town Estates. This sinking fund was set @ Rs. 30/- per Sq Ft. Upon completion of the buildings/flats, the OP handed over the flats to the owners, and subsequently, the management was transferred to Dum Dum Club Town Residents’ Association in October 2012. However, after handing over of the flats, OP failed to transfer the sinking fund of Rs.78,05,510/- and ignored several communications. Aggrieved, they filed Consumer Complaint No. CC 398 of 2015, seeking a directive to OP to pay Rs. 78,05,510/-, along with interest, and compensation of Rs. 1,50,000/-.

4. In reply, the OPs raised a preliminary objection, contending that the complaint is time-barred as vide letter dated 04.06.2010 the Complainant Society informed the OPs that the newly elected committee Association had taken over management and maintenance responsibilities from 07.03.2010. However, the complaint was filed in 14.10.2015. On merits, they asserted that the accounts for Rs.78,65,000/- were withheld because the Complainant allegedly occupied certain properties of the OP forcefully and illegally. These properties included a flat measuring about 1000 Sq Ft on the ground floor adjacent to the Community Hall, one small room under Block-4, a 350 sq. ft. space with a toilet beneath Block-5, and an open car park behind Block-1. The OPs emphasized that they would provide an account of the sum once the Complainant returned the properties they were allegedly holding unlawfully.

5. The learned State Commission vide impugned Order dated 05.09.2018, partly allowed the Complaint as under:—

“On evaluation of materials on record, I am of the view that the Complainant Association has been able to substantiate their case. As a result, they are entitled to some reliefs. Considering the facts and circumstances and the sufferance of the Complainant Association, I think the Complainant Association is entitled to get the amount of sinking fund to the tune of Rs. 78,05,510/- and compensation in the form of interest @ 9% p.a. from the date of registration i.e. 10.10.2012 till its realisation. As the situation compelled the Complainant Association to lodge the complaint for which they have to incur expenses, they are entitled to litigation cost which I quantify at Rs.25,000/-.

With the above discussion, I dispose of the complaint with the following directions:—

i. The Opposite Party is directed to handover the amount of sinking fund to the tune of Rs. 78,05,510/- to the Complainant Association.

ii. The Opposite Party is directed to pay compensation in the form of simple interest @9% p.a. over the amount of Rs.78,05,510/- from 10.10.2012 till its realisation.

iii. The Opposite Party is directed to pay Rs. 25,000/- to the Complainant Association as costs of litigation.

iv. The above payments must be made within 60 days from dat