For the Complainants             - Mr. Madan Mohan Das, Advocate

For the OPs 1&2                                 -  Mr. Prasanta Banerjee, Advocate

For the OPs 3, 5 & 6               -Mr. Dipak Kumar Paul, Advocate

FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT

            The instant complaint u/s 12 of the Consumer Protection Act, 1986 (hereinafter refer to as “the Act”) is at the behest of purchasers against M/s. Vasudeva Builders (OP1), its proprietor and owners of the land on the allegation of deficiency of services in a dispute of non execution and registration of Deed of Conveyance.

            In a capsulated form, complainants’ case is that on 23.09.2004 they entered into a registered agreement for sale with OP1 to purchase a residential flat measuring about 800 sq.ft. super built up area being Flat No. 4B consisting of two bed rooms, one living, one dining room, one kitchen, two bath cum privy on the 4^th floor of the G+4^th storied building being KMC Premises No.18, Paddapukur Lane, P.S. Ballygunge, Kolkata-700020 at a total consideration of Rs.14,00,000/-. The complainants have stated that they have paid the entire consideration amount and on 31.03.2005 the Developer put them in possession over the subject flat. Despite request and legal notice dated 01.01.2018 the Developer OP1 did not execute and register Deed of Conveyance of the subject flat and handover completion certificate. Hence, the complainants have approached this Forum with prayer for following reliefs – (a) an order directing the OPs to execute and register Deed of Conveyance of the subject flat fully described in Part-I of the registered Agreement for Sale dated 23.09.2004 (b) to pay Rs.5,00,000/- as compensation for harassment and mental agony and  (c)  to pay Rs.15,000/- as litigation cost.

            The OPs 1 & 2 by filing a written version have stated that the consumer case is not maintainable either in law and or in facts. The specific case of the answering OPs is that OPs 3 to 6 being the owners of the property lying and situated at 18, Paddapukur Lane, Kolkata-700020 extrusted him for development of the property and to construct a building thereon after demolishing the existing structure standing thereon. The answering OPs in terms of the Development Agreement obtained a building sanction plan from the Kolkata Municipal Corporation and constructed a building. The answering OPs made some addition and alteration of the building at the instance of the landowners and the landowners also executed a declaration inter-alia that they are responsible for such addition and alteration and also undertook that they will take necessary steps to that effect. Subsequently, the landowners did not fulfill their declaration and also revoked the Power of Attorney dated 10.07.2003. As a result, the answering OPs could not process of obtaining building completion certificate from the Kolkata Municipal Corporation. The answering OPs duly handover possession of the subject flat to the complainants with a request to get the flat registered but the complainants did not come forward to get it done. Therefore, the complaint should be dismissed with costs.

            The OPs 3 & 5 by filing written version disputed and denied the material allegation leveled by the complainants. According to the OPs 3&5, the case is barred u/s. 24A of the Consumer Protection Act, 1986. The specific case of the answering OPs is that the complainants are not the consumer as defined under the C.P.Act as they have transferred the subject flat to third party. The answering OPs and OP 6, Sanjay Kumar Mukherjee since deceased filed three consumer case against the OPs 1 & 2 before the DCDRF, Unit-I, Kolkata. Those cases were disposed of and the OPs 1&2 were directed to supply completion certificate and occupation certificate to the OPs 3, 5 and 6, since deceased within 03 months from the date of order failing which the Developer shall be liable to pay damages @.30/- per day till supply of the completion certificate and occupation certificate. The OPs 1&2 were further directed to pay compensation of Rs.5000/-  and litigation cost of Rs.1000/- only within two months failing which it would carry interest @8% p.a. till realisation. Being aggrieved and dissatisfied with the final order dated 21.07.2008 passed by the DCDRF, Unit-I, Kolkata, OPs 1&2 preferred three appeals before the Hon’ble SCDRC and the Hon’ble SCDRC has been pleased to upheld the final order dated 21.07.2008 with a little modification. Warrant of arrest was issued against the Developer (OP2). Developer filed application under Article 227 of the Constitution of India challenging the orders passed by the Hon’ble SCDRC in C.O. Nos. 1158 of 2018, 1162 of 2018 and 1164 of 2018 and those applications are still pending for disposal. The General Power of Attorney executed by the answering OPs has lapsed in 2005 and the OPs 1 & 2 had no selling right in respect of four flats in the constructed building. The answering OPs have prayed for dismissal of the consumer case with cost.

            Despite service of notice the OP 4 did not opt to contest the case. As such, the case has been proceeded exparte against OP 4.

            At the outset, it would be worthwhile to record that OP 6 Sanjoy Kumar Mukherjee died and his wife Smt. Mina Mukherjee has been substituted vide Order No. 10 dated 04.12.2018 and she adopted  W.V. of OPs 3&5 vide order dated 31.01.2019.

            In support of their case, Complainant No. 1 Ranen Gandhi has tendered evidence through affidavit. The Complainant No. 1 has also given reply against the questionnaire set forth by the OPs. On behalf of the OPs 1&2 and OPs 3&5 two evidence on affidavit have been filed. At the time of final hearing, Complainants and OPs 3&5 have also filed their brief notes of arguments. Ld. Advocate for OPs 1&2 did not participate in the final hearing.

            On perusal of the pleadings, evidence led by the parties coupled with the documents annexed therewith it would reveal that OPs 3 to 5 and Sanjoy Kumar Mukherjee were the absolute owners of a piece or parcel of land measuring more or less four cottahs and eight & ¾ chittacks being KMC Premises No. 18 Paddapukur Lane, Kolkata-700020. They had entered into a Development Agreement dated 14.12.2002 with the OP2 being  the proprietor of OP1 for construction of a building containing several independent and self contained flats /units/car parking space according to building plan sanction by the Kolkata Municipal Corporation at his cost and the proposed new constructed building the Developer/OPs 1&2 shall keep entire 03^rd and 04^th floor (having four flats) and car parking space/s at the ground floor and owners shall keep entire 1^st and 2^nd floor (having four flats) and car parking space/s at the ground floor. The owners have also executed and registered Power of Attorney dated 10.07.2003 in favour of the OP2 proprietor of OP1 M/s. Vasudeva Builders. It is also true that the complainants entered into a registered agreement for sale dated 23.09.2004 with the OP1 represented by its proprietor (OP2) to purchase a self-contained flat measuring about 800 sq.ft. super built up area being flat No.4B on the 4^th floor including all common facilities, amenities mentioned in the  agreement and one covered car parking space with proportionate undivided share of common land at a total consideration of Rs.14,00,000/-.

            The overwhelming evidence on record further go to show that the complainants have already paid full consideration amount of Rs.14,10,662/- to the OP2 proprietor of Vasudeva Builders (OP1) and the complainants were put in possession in the subject flat but Deed of Conveyance is not executed in spite of several request and reminder. The validity and/or the date of termination of the Power of Attorney was in force for 24 months from the date of its signing and registration. The registered Power of Attorney dated 10.07.2003 became elapsed on account of expiry of 24 months.

            Mr. Dipak Kumar Paul, Ld. Advocate for the OPs 3&5 has submitted that the instant case is barred by limitation as cause of action has arisen on 31`.03.2005 and the instant consumer case has been filed on 21.05.2018. On the contrary, Mr. Madan Mohan Das, Ld. Advocate for the complainants has submitted that cause of action will continue till possession is given and conveyance deed is executed. In support of his contention, the Ld. Advocate for the complainants cited a decision reported in 2016(2) CPR 655(NC) (Ram Kedia & Anr-vs-J.N.Ambalkar & Ors.).

            We have perused the above cited decision. The Ld. Advocate for the OPs 3&5 has tied to mis-lead us. The cause of action will continue till the possession is given and the conveyance deed is executed, this is a continuous cause of action. It is true that deed of conveyance in favour of the complainants has not yet been executed and registered. The Hon’ble NCDRC in the case “Bhagyalaxmi Construction-vs-Monoranjan Basal & Ors” in Revision Petition No.668 of 2013 decided on 31.05.2013 observed:-

            “5. Coming to the issue of limitation, raised before the fora below on behalf of RP/OP. The State Commission has agreed with the finding of the District Forum that it was a case of continuing cause of action. The question of complaint being barred by limitation does not arise. From a perusal of the records and from the arguments of the counsel for the revision petitioner, I find that it is a case where existence of an agreement between the parties for the purchase of a flat is not denied. Receipt of consideration for the same is also not denied. I, therefore, find myself in agreement with the fora below that the cause of action had continued to exist because neither the possession was delivered nor the conveyance was executed in favour of the complainant.”

            Thus, the instant consumer case is not barred u/s 24A of the Consumer Protection Act, 1986.

            As it evident from the record that subject flat has not been registered in the name of the complainants for almost 14 years from the date of possession. OPs 1&2 in their W.V. have taken a specific plea that despite their request the complainants did not come forward get the flat registered. No documentary evidence in this behalf has been placed before us. Only plea to the efforts made by the OPs 1&2 to get the sale deed registered are frustrated by non-cooperation of the complainants. It is therefore, clear that no evidence of any value is adduced before us in support this contention.

            In their written version the OPs 3&5 have stated that the complainants are not the consumer as defined under the Consumer Protection Act, 1986 as they have transferred the subject flat to third party. No documentary evidence in this behalf has been placed before us. Thus, the OPs 3&5 have failed to establish that the complainants have transferred the flat to third party is not correct. Thus, the complainants are the consumers as defined u/s. 2(1)(d) of the C.P. Act, 1986.

            The Ld. Advocate for the OPs 3&5 has argued that the answering OPs 3, 5 and Sanjoy Kumar Mukherjee since deceased had filed three consumer case against the OPs 1&2 before the DCDRF, Unit-I, Kolkata, those cases were disposed of in their favour, appeal preferred by the OPs 1&2 were also upheld with a little modification but no documentary evidence is forthcoming in this regard.

            On perusal of the record, we find that the land owners/OPs 3&5 did not put questionnaire against the evidence of Complainant No.1 on affidavit. Thus, it is deemed that the land owners have admitted the evidence of the complainants as true. Similarly, the OPs 1&2 reluctant to file reply on affidavit against the questionnaire filed by the complainants on the evidence of the OPs 1&2. Therefore, the OPs 1&2 have nothing to deny the statement made in the evidence on affidavit of the complainants as well as allegation made out in the consumer complaint.

            Both parties admit about non granting of completion certificate by the competent authority alleging deficiency against each other. The OPs 1&2/Developer have taken a specific plea in their W.V. that the landowners revoked the Power of Attorney after taking possession of their allocation. The contesting landowner have also admitted that the General Power of Attorney executed by them has lapsed in 2005 and the Developer had no selling right in respect of four flats in the constructed building.

            On evaluation of materials on record it is quite evident that General Power of Attorney was executed and registered on 10.07.2003 and the total period of its validity was 24 months from the date of its registration. The Agreement for sale between the Developer and the complainants was executed and registered on 23.09.2004 within the validity period of General Power of Attorney. Thus, the Dev- eloper had selling right in respect of four flats in the constructed building. While the Developer has failed to prove that the complainants are responsible for the delay, non execution of the conveyance deed remains admitted fact. More than anyone else, the Developer being a construction Firm, should know that sale of flat is completed with registration of the sale deed and not with mere transfer of physical possession.

            Having heard both sides and keeping in view the facts and circumstances of the case we are of the view that the complainants are entitled to get relief. With the following discussion, complaint is allowed on contest in part against the OPs 1, 2, 3, 5 and 6 and exparte against the OP 4 with the following directions:-

1. The OPs are directed to execute and register Deed of Conveyance in respect of flat No. 4B measuring about 800 sq.ft. super built up area consisting of 02 bed rooms, 01 living, 01 dining room, 01 kitchen, 02 bath cum privy on the 04^th floor of Premises No. 18, Paddapukur Lane, Kolkata-700020 with right to park a motor car on the ground floor of the said building in favour of the complainants.
2. The OPs are jointly and severally directed to make payment of Rs.10,000/- as costs of litigation in favour of the complainants.
3. The complainants shall bear the stamp duty and cost of registration also.

Time of compliance is 60 days from the date of order failing which complainants may enforce the order u/s 25 & 27 of the C.P.Act, 1986 against the OPs and also execute and register Deed of Conveyance of the subject flat through the machinery of the Forum.

Order be communicated to the parties as per rules.