28/10/14

HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT

            This Appeal is directed against the judgment and order passed by Learned District Forum, Howrah in case no.CC 62 of 2012 allowing the complaint with the direction to the OP No.1 to execute and register the deed of conveyance after receiving the balance amount of Rs.10,46,000/-.  The OP No.1 was directed to pay compensation of Rs.50,000/- and litigation cost of Rs.5000/- to the Complainant. 

            The case of the Complainant/Respondent, in short, is that she entered into an agreement with the OPs on 16/06/11 for purchase of a flat with certain terms and conditions.  OP No.1 is the Developer and OP Nos.2 and 3 are the owners of the property.  The total consideration amount was Rs.13,86,000/- and the Complainant paid Rs.3,45,500/- under proper receipt, but the OP No.1 did not supply the relevant papers relating to the scheduled flat to the Complainant.  At the time of agreement the Complainant told the OPs that the balance amount of consideration money shall be paid by her after taking loan from the Bank and the application for loan was duly submitted before the Bank of India and the process was going on.  Due to non-supply of the necessary papers by the OP the balance amount could not be paid.  There is no laches or negligence on the part of the Complainant.  The Complainant is still ready and willing to purchase the scheduled flat and undertakes to purchase the flat after getting loan from the Bank.  The Complainant several times requested the OPs to execute and register the sale deed relating to the flat in question, but to no effect.  For the said reason, the complaint was filed before the Learned District Forum.

            The Learned Counsel for the Appellant has submitted that the papers were duly supplied to the Complainant.  The Learned Counsel has referred to the letter dated 12/03/12.  It is contended that time was the essence of contract which was specifically mentioned in the agreement.  It is submitted that the allegation of non-supply of documents is not correct.  It is submitted that due to non-payment of balance amount of consideration money the agreement was cancelled and it was duly communicated to the Complainant vide letter dated 12/03/12. 

            The Learned Counsel for the Respondent has submitted that the Learned District Forum rightly passed the impugned judgment and order.  It is contended that there is no document to show that the necessary papers and documents were supplied by the OP/Appellant.  It is submitted that there is no ground to interfere with the impugned judgment passed by the Learned District Forum. 

            We have heard the submission made by both sides and examined the papers on record.  It appears that the total consideration amount was Rs.13,86,000/- out of which the Complainant paid Rs.3,45,500/- as it is evident from the letter of the OP dated 12/03/12 and letters of the Complainant through Learned Advocate dated 23/03/12 and 26/04/12.  The agreement is dated 16/06/11.  In clause 4 of the agreement it has clearly been mentioned that the balance amount was to be paid within 4 months and the possession will be delivered followed by the registration of the deed.  In clause 6 of the agreement it has specifically been mentioned time is the essence of contract and the entire deal shall be completed within the period mentioned above.  It is the contention of the Complainant/Respondent that the OP did not supply the copy of documents for which she was unable to take loan from the Bank.  It appears that both parties duly executed the agreement and the contention of non-supply of necessary documents by the OP is not acceptable, in as much as, when the Complainant entered into agreement she must have enquired into the title of the land owner, the development agreement and power of attorney etc.  The question whether time is the essence of contract or not, it depends upon the intention of the parties which is to be gathered from the recital in the agreement.  Since it has been specifically mentioned in the agreement that the balance amount was to be paid within 4 months and time was the essence of contract, we are of the considered view that because of the failure of the Complainant to pay the balance amount of the consideration money, the OP cancelled the agreement which was communicated to the Complainant vide letter dated 12/03/12.  In this connection we place reliance on the decision reported in 2013 (1) CPR 65 (NC) [Delhi Development Authority Vs. Mr. Rajendra Singh] wherein it has been held that allotment of flat can be cancelled for default in payment.  The Complainant, therefore, is entitled to get refund of the sum of Rs.3,45,500/- which was paid by her to the OP No.1.

            The Learned Counsel for the Appellant has referred to the decision reported in 2014 (2) ICC 853 [Smt. Bithi Das & Ors. vs. Sri Debabrata Majumder & Ors.] wherein it has been held by the Hon'ble High Court, Calcutta that in view of the provisions contained in West Bengal Building (Regulation and Promotion of Construction and Transfer by Promoters) Act, 1993 the petition of complaint before the Learned District Forum was not maintainable.  In this connection the Hon'ble National Commission in RP Nos.2540 of 2004 and 2541 of 2004 [Basudeb Banerjee & Anr. Vs. Amlan Bhattacharyya & Ors., decided on 07/10/05] held that the Fora under the C. P. Act, 1986 are not the Civil Courts though they have trappings of Court and that the bare perusal of sub-section (i) of section 12A would show that it creates bar on jurisdiction of Civil Court and not the Consumer Fora.  As per the decision of the Hon'ble National Commission reported in 2008 CTJ 954 (NC) [NCDRC Bar Association (Regd.) vs. Davinder Malhotra & Ors.] it has been held that Consumer Fora in the country are bound to follow the decisions rendered by the National Commission in the consumer cases filed under the provisions of C. P. Act.  In the decision reported in 2012 (4) CPR 191 (NC) [Arun Khanna vs. Smt. Sashi Sharma & Ors.] it has been held that the complaint before Consumer Forum is not suit and in the said case the Hon'ble National Commission relied on a decision of the Hon'ble Apex Court reported in AIR 2009 (SC) 3127 [EICM Exports Ltd. vs. South Indian Corporation (Agencies) Ltd. & Anr.].  In view of the aforesaid decisions of the Hon'ble National Commission, we are of the considered view that the petition of complaint is maintainable. 

            The Appeal is allowed in part.  The Appellant/OP No.1 of the complaint is directed to refund Rs.3,45,500/- to the Complainant with interest @ 9% p.a. with effect from the date of the filing of the complaint and litigation cost of Rs.5,000/- to the Complainant within 45 days from this date failing which further interest @ 9% p.a. will accrue from the date of default till realisation.  The other directions passed by the Learned District Forum are set aside.  The impugned judgment stands modified accordingly.