PER SHRI.S.M.SHEMBOLE, HON'BLE JUDICIAL MEMBER
Challenge in this appeal is the judgment and order dated 5/5/2009 passed by District Consumer Forum, Nagpur in CC No.21/2009 partly allowing the complaint directing the appellant/opponent who is a developer to execute the sale-deed of the plot in question by receiving balance consideration from the Respondent/complainant Smt.Ranjana Fedewar and further to pay compensation of Rs.5000/- and Rs.1000/- as cost to the complainant. (for brevity sake, hereinafter the appellant is referred to as Opponent and Respondent as complainant).
Brief facts giving rise to this appeal are that the opponent had decided to develop his own land bearing survey No.57/2 of Mouza Hudkeshwar and to sell house by getting land converted into non agricultural and also getting the layout sanctioned. On 16/6/03, complainant agreed to purchase plot No.13 for a consideration of 4 lacs and paid Rs.2,50,000/- to the Opponent. It was agreed to pay the balance consideration at the time of execution and Registration of sale-deed. It was agreed to execute the sale-deed within 6 months from the date of agreement for sale i.e. on or before 16/12/2003. According to complainant, she was ready and willing to get the sale-deed executed by paying the balance consideration. However, despite receiving Rs.50,000/- from the complainant on 15/10/2006, the opponent failed to perform his part of contract and execute the sale-deed. Therefore, complainant issued notice to the opponent, but the opponent failed to execute the sale-deed. Therefore, the complainant filed the complaint before the District Consumer Forum, Nagpur.
The Opponent resisted the complaint by his reply dated 25/3/2009 contending interalia that the complaint is barred by limitation, and, that the complainant himself failed to perform her part of contract by making the balance payment within 6 months as agreed.
By filing rejoinder, the complainant resisted the contention raised by the opponent.
On hearing both the sides and considering the evidence on record, the District Consumer Forum partly allowed the complainant directing the appellant/opponent who is a developer to execute the sale-deed of the plot in question after obtaining NA permission within 6 months by receiving balance consideration of Rs.1 lac from the Respondent/complainant Smt.Ranjana Fedewar and further to pay compensation of Rs.5000/- and Rs.1000/- as cost to the complainant.
Feeling aggrieved by that judgment and order, the opponent has filed this appeal.
Today, the appeal was for hearing before admission, however, counsel for both the sides requested this commission to hear the appeal finally and, therefore, we heard counsel for both the parties, perused the copy of judgment and order and other documents produced on record.
Adv.Sirsikar, learned counsel for the appellant/opponent challenged the impugned judgment and order on the following grounds.
1. Limitation &
2. Non performance of contract by the complainant by paying the balance consideration within 6 months as agreed.
Mr.Sirsikar pointed out that the complainant paid Rs.50,000/- in the year 2006, however, he filed the complaint in the year 2009. Hence the complaint being barred by limitation is not at all tenable.
Further, Mr.Sirsikar pointed out from para 3 of the deed of agreement and vehemently contended that though the complainant had agreed to pay the balance consideration within 6 months from the date of agreement, he failed to pay the same, and therefore, according to him, the complaint, is not at all tenable.
Per contra, Mr.Bhoskar, learned counsel for the Respondent/complainant denied arguments advanced by Mr.Sirsikar and pointing from para 1 of the same copy of deed of agreement submitted that it was agreed to make the payment of balance consideration at the time of execution of sale-deed and not within any specific period. But the appellant fraudulently got written in para 3 of the agreement that the payment of balance consideration is to be made on or before 16/12/2003 and the complainant signed the same without knowing its contents etc.
We find much force in the submission of Mr.Bhoskar, because though undisputedly, it was agreed by the opponent to execute the sale-deed on getting the NA sanction, he has not yet complied this condition by obtaining NA sanction. In the notice reply given by the Opponent, it is clearly mentioned that the sale transaction could not be done as NA permission and TP sanction was not obtained etc. Therefore, the contention of the opponent that the complainant failed to perform her part of contract and the complaint is barred by limitation is being fallacious, can not be accepted.
Moreover, it is pertinent to note here that though the opponent has contended that the sale-deed was to be executed within 6 months from the date of deed of agreement, undisputedly he received the amount of Rs.50,000/- out of the balance consideration on 15/10/2006 and accordingly given acknowledgment at the foot of the deed of agreement. This fact also falsifies his contention that the balance consideration was to be paid on or before 16/12/2003.
Moreover, Mr.Bhoskar, learned counsel for the complainant submitted that under Consumer protection Act, if the sale-deed of the plot is not executed, the cause of action is continuous and, therefore, the complaint is not barred by limitation. He relied on the authority of National Commission in the case of G.L.Narsimhan Vs. B.S. Venkateswaruli & Anr. IV (2009) CPJ 113 (NC). It is well settled law that in case of specific performance of contract, when specific period is not mentioned, the cause of action is continuous.
However, Mr.Sirsikar, learned counsel for the appellant/opponent tried to support his contention by relying on the decision of the Supreme Court in the case of State Bank of India Vs. BS Agrawal Industries I (2009) 6 Mh.L.J. page 369 in which it is observed by the apex court that Consumer Forum has to examine on its own whether the complaint has been filed within the limitation period prescribed thereunder. But, in the present case, we have already examined the facts of the present case as discussed above. Therefore, this authority of Supreme Court can not be applicable to the present case. When undisputedly, the opponent has received the amount as part of balance consideration after laps of 6 months period, as stated earlier, the contention of the opponent that it was agreed to execute the sale-deed within 6 months and as such the complaint is barred by limitation can not be accepted.
For the forgoing reasons, we find no infirmity or any illegality in the impugned order and hence, no interference is warranted.
In the result, the appeal is being devoid of merit deserves to be dismissed.
Hence the order…
ORDER
1) Appeal is dismissed.
2) No order as to cost.
3) Inform the parties accordingly.
Delivered on 05/10/2011.
