Before Hon’ble President: Debasish Bandyopadhyay

Brief fact of this case:-  This case has been filed u/s. 12 of the C.P. Act, 1986 by the complainant against the opposite Party by describing that the complainant entered into an agreement with the Opposite party on 24/02/2007 for the purpose of purchasing 1^st floor flat measuring about 656 sq. ft. and ground floor flat measuring 2428 sq. ft. including 4 feet path way (Rasta) and the said property has been described of the complaint petition.  It is stated that the said flat has been promoted and developed by the Opposite party on the vastu land measuring in 6 Cottahs of Sub Registry Office, Serampore, U/S. R.S. Khatian no. 1924 and RS dag no.6188 corresponding LR Dag no. 6749 under Serampore, Municipality having holding No. 14, Library Lane being recognized as “Çhhayadrita” in the District of Hooghly.  It is alleged that the complainant  as per agreement has equal rights in the commonplace such as staircase, septic tank, common passage,  electricity connection, main entrance, tube water tank, drain, pump including pump room electric wiring  light of the passage, pipe line of drainage water municipal water tank etc.

According to the case of the complainant he has entered into 2 flats by taking the possession of the said 2 flats which is described as  “kha” schedule and the Opposite party has given delivery of possession to the petitioner in an incomplete shape of said 2 flats and paid consideration money of Rs. 20,69,000/- and by way of issuing cheque and by payment of cash on various dates from 24/03/2007 to 21/07/2008.  It is pointed out that the complainant requested the Opposite party to make sale deed for execution and registration of deed of sale of the said 2 flats which has been described in Kha schedule property. 

It is further been alleged that the Opposite party thereafter demanded Rs. 8,27,000/- from the petitioner and the petitioner complainant paid the said amount but in spite of receiving the said amount the Opposite party has not yet fixed any date for execution and registration of sale deed  of  the said flat (kha schedule property) and according to the case of the complainant side he is always ready and willing to execute and register the deed in respect of the 2 flats (kha schedule property).

It is also be the case of the complainant that the complainant repeatedly requested the Opposite party to execute and register the sale deed in favour of the petitioner.  But it has not yet been done.  It is also pointed out by the complainant side that the complainant has already paid the entire consideration money of the said 2 flats.  But the Opposite party is not willing to execute and register the said deed in respect of the (Kaw schedule property) although opposite party cannot get rid of his liability.  It is stated that the cause of action arose on 24/02/2007 and it is continued up to 31/01/2012.  For all these reasons the complainant has filed this case for getting relief as per prayer of the complaint petition.

Defense case  : The Opposite party is contesting this case by filing written version denying inter alia all the material allegation leveled against him in the complaint petition. The specific case of the Opposite party in a nutshell is that this case is not maintainable in the eye of law and there is no cause of action for filing this case and this case is barred by limitation and this District Commission / Forum has no territorial or pecuniary jurisdiction to try this case.  It is alleged that no such agreement for sale of 1^st floor flat and the ground floor flat in respect of the Kha schedule property has been executed and the Opposite party had never given position of the said flat to the complainant and the Opposite party has not fixed any date of registration of sale deed of the flat in respect of the Kha scheduled property.  The Opposite party has admitted that the Opposite party requested the petitioner for registration of deed by sending letter and there was/ is no lacunas on the part of the Opposite party.

It is also pointed out that the complainant has never paid any amount of Rs. 8,27,000/- to the Opposite party.  It is further alleged that as per agreement dated 24/02/2007 the petitioner is bound to purchase bathroom fittings at his own cost and as such Opposite party has no responsibility regarding the said works.  According to the case of the Opposite party there is no deficiency of service on the part of the Opposite party towards the petitioner and there is no negligence on the part of the Opposite party.  For all of these reasons the Opposite party has prayed for dismissing this case with heavy cost.

Issues/points of consideration  :

 On the basis of the pleadings of the parties, the District Commission in the interest of proper and complete adjudication of this case is going to adopt the following points of consideration:-

1. Whether the complainant is a consumer of the Opposite party or not?
2. Whether this Forum/Commission has territorial / pecuniary jurisdiction to entertain and try this case?
3. Is there any cause of action for filing this case by the complainant?
4. Is this case barred by limitation?
5. Whether there is any deficiency of service on the part of the Opposite party?
6. Whether the complainant is entitled to get relief which has been prayed by the complainant or not?

Evidence of record  :

The complainant has filed evidence on affidavit which is nothing but replica of the complaint petition supports the averments described in the complaint petition by the complainant and denial of the written version of Opposite parties.

The answering opposite party has filed evidence on affidavit which reflects the averments of the written version and denial of the complaint case.

Argument highlighted by the Ld. Lawyers of the Parties :

On close examination of the materials of this case record it appears that complainant and opposite party have filed written notes of argument of this case.  As per BNA Ld. Lawyers of complainant and opposite party have given  emphasis on the evidence of affidavit filed by the complainant and Opposite party as well as on the document filed by the parties of this case and also highlighted the points described in the agreement.

Decision with reasons:

The first four issues and / or points of consideration adopted in this case by the District Commission are related with the points of maintainability, jurisdiction, cause of action, limitation and whether complainant is consumer or not, are vital issues and so these four points of consideration are clubbed together and taken up for discussion jointly at first.

Regarding these four points of consideration, it is very important to note that opposite party even after the appearance of this case and after filing written version have contested this case but no separate application on the points of non maintainability of this case has been filed due to the reason best known to him.  Under this position the District Commission/Forum had no other alternative but to proceed with this case as no separate application on the ground of maintainability jurisdiction, lack of cause of action and on the limitation point has been filed and so the said issues were not decided at the early stage of this case although this case is pending for more than 10 years after filing.  The opposite party only in their written version pleaded the above noted points.  So the District Commission is of view that there is necessity of passing their decision over the said four points of consideration.  The District Commission / Forum after going through the materials of this case record finds that the complainant is a resident of Serampore, Hooghly which is lying within the territorial jurisdiction of the District Commission and moreover the complaint case has been filed with a claim which is below 50 lakhs and so it is crystal clear that the District Commission has not only territorial jurisdiction but also pecuniary jurisdiction.  Thus the pleading of the opposite party on the ground of jurisdiction and maintainability has no legs to stand upon.  Moreso, u/s 34 of the C.P. Act 1986 and 2019 this District Commission has territorial and pecuniary jurisdiction to try this case. The opposite party has also raised the plea of limitation and in the written version it is pointed out that this case is barred by limitation.  But in this case it is important to note that the provision of Sec. 69(2) of CP Act, 2019 depicts that complaint case can be entertained by the District Commission or State Commission or National Commission even after the expiry of 2 year if the complainant satisfies the Ld. Commission that he /she has sufficient ground for not filing this case within 2 years.  Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite party which has been described in the written version is not also acceptable.  On close examination of the pleadings of the both party it also transpires that there is cause of action for filing this case by the complainant side against the opposite party.  Moreso, after going to the provisions of sec. 2(1)(e) of the C.P. Act , 2019 it appears that this case is maintainable in its present form and also in the eye of law. According to the provisions sec. (2) (7) the complainant is a consumer in the eye of law.  The definition of expression ‘service’ as per sec. 2(o) of the CP Act, 1986 was wide enough to comprehend service of every description and so the District Forum has the jurisdiction to entertain and try such complaint.  This legal principle has been laid down by the Apex Court and it is reported in II 2022(2) CP R 249(SC).  Thus it is crystal clear that this case is maintainable and complainant is a consumer under the opposite party and the District Commission has territorial/pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite party.

In the result the above noted four points of consideration are decided in favour of the complainant.

Decision in respect points of consideration no. 5 and 6:

The point no. 5 is related with of the question as to whether there is deficiency in the service on the part of the opposite party or not and the point no. 6 is connected with the question as to whether the complainant is entitled to get any relief in this case or not?

These two points of consideration are interlinked/ interconnected with one another and for that reason these two points of consideration are also clubbed together and taken up for discussion jointly

For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted question,  there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity of making scrutiny of the document filed by the parties of this case.

On comparative studying of the evidence on affidavit filed by the complainant and the evidence of affidavit filed by the opposite party and with the documents filed by both sides it appears that on the following points:

The parties of this case either admitted or have not any dispute:-

1. After going through the evidence on records it appears that an agreement dated 24/02/2007 in respect of purchasing one 1^st floor flat measuring about 656 sw. ft. ground floor measuring about 2428 sq. ft. including 4 feet path way in the front side of the premises situated at Vastu land measuring 6 Cottahs at Serampore  under RS Khatian No. 1924 and under Rs Dag no. 6188 corresponding to LR Khatian No. 26612, 2661, 26614 and LR Dag no. 6749 under Serampore municipality at holding no. 14, Library Lane recognized as ‘Chhyadrita’ has been executed in between complainant and opposite party of this case.
2. The complainant after execution of the agreement dated 24/02/2007 paid consideration money of Rs. 20,69,000/- either by cheque or by cash from 24/02/2007 to 21/07/2008.
3. There is no dispute on the point that the complainant also has taken possession in respect of the Kha schedule property and complainant still in possession of the said property (Kha schedule).
4. It is admitted fact that the sale deed in respect of the 1^st floor flat and ground floor flat (Kha schedule property ) has neither been executed nor been registered as yet.
5. There is no controversy over the issue that the opposite party has sent a letter to the complainant for execution and registration of the deed but the same has not yet been done.
6. It is admitted fact that complainant is ready and willing to execute and register the sale deed. 

On the background of the above noted series of admitted facts and circumstances it is important to note that the main points of difference and /or apple of discord between the parties is that  whether non execution and non registration of the sale deed in respect of the kha schedule property which has been described in the complaint petition is a deficiency of service or not? Over these issues it is the settled principle of law is that non execution of sale deed is a deficiency in service.  These legal principle has been observed by National Consumer Disputes Redressal Commission, New Delhi and it is reported in II (2022) CPJ 168(NC). Similar observation has been adopted by Hon’ble State Commission, West Bengal and it is reported in II (2022) CPJ 50 (WB).  This legal principle has also been adopted by Hon’ble State Commission, Madhya Pradesh and it is reported in II (2022) CPJ 89 (MP).

Thus it is crystal clear that the complainant is  also entitled to get relief as per points of consideration number 5 and 6 and so these two points of consideration are also decided in favour of the complainant. It is held that complainant is entitled to get the award of getting the sale deed executed and registered in respect of the two flats which has been described in the kha schedule property. The complainant is also entitled to get compensation of Rs. 20,000/- for delay in executing and registration of the sale deed from Op.  Complainant is also entitled to get litigation cost of RS. 10,000/- from the Op of this case.

In the result, it is accordingly,

                                                   Ordered

That this complaint case being no. 101/2012 be and the same is allowed on contest but in part.

It is held that complainant is entitled to get the award of getting the sale deed executed and registered in respect of the two flats which has been described in the kha schedule property. The complainant is also entitled to get compensation of Rs. 20,000/- for delay in executing and registration of the sale deed from Op.  Complainant is also entitled to get litigation cost of RS. 10,000/- from the Op of this case.

Op is directed to execute and register the sale deed in favour of the complainant in respect of kha schedule property and to pay compensation and litigation cost of Rs. 30,000/- within two months from the date of this order. Otherwise complainant is given liberty to execute this order as per law.

In the event of failure to comply with the order t he opposite party shall pay cost  Rs. 50/- for each day’s delay, if caused, on expiry of the aforesaid 60 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.

      Let a plain copy of this order be supplied free of cost to the parties or their Ld. Advocates / Agents on record by hand under proper acknowledgement or sent by  ordinary post for information and necessary action.

    The Final Order will be available in the following website www.confonet.nic.in.

Dictated and corrected by me.