28.08.2015

MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER

            The instant Appeal u/s 15 of the Consumer Protection Act, 1986 has been filed by the OP Nos. 4,5 & 6 challenging the judgment and order dated 30.7.2013 passed by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas in C.C.Case No. 302 of 2012, directing the OPs to execute and register the Deed of Conveyance in respect of the flat in question in favour of the Complainant within 30 days from the date of the order.  The OP Nos. 4,5 & 6 were also directed to complete the construction of the boundary wall of the said premises and to pay to the Complainants Rs. 20,000/- as compensation and Rs.10,000/- as cost within the said period, failing which the said amounts would carry interest @ 10% p.a. for the entire of default.

          Facts, which are leading to the present case, are, in short, that the Respondent Nos. 1 & 2/Complainants entered into an Agreement for Sale dated 18.11.2001 with the Appellants/OP Nos. 4,5 & 6 for purchase of a duplex flat of 1500 sq. ft. super built-up area bearing No. 20, Type-A, for a total consideration of Rs. 8,25,000/-, as evident from the reply to the questionnaire by the Appellants/OP Nos. 4,5 & 6 (Running Page-66 & 67 of Memo of Appeal).  Also it appears from the Memo of Appeal (Para-6) that the Respondent Nos. 1 & 2/ Complainants were in possession of the flat in question since 2004, but the Appellants/OP Nos. 4,5 & 6 did not complete execution and registration of the Deed of Conveyance and also the unfinished works as alleged in the Petition of Complaint.  In this background, the Respondent Nos. 1 & 2/Complainants moved the Ld. District Forum which passed the impugned judgment and order in the above manner.  Aggrieved by such order the OP Nos. 4,5 & 6 have preferred the present Appeal.

          The Ld. Advocate for the Appellants/OP Nos. 4,5 & 6 submits in the beginning that the Ld. District Forum erred in law in entertaining the Complaint in question which was filed after lapse of about 7 years from the year of delivery of the possession of the flat in question in the year 2004 and hence, it is clearly barred by limitation of time as prescribed u/s 24A of the Consumer Protection Act, 1986.  The Ld. Advocate further submits that as the Respondent Nos. 1 &2/Complainants have not yet made full and final payment including the cost of extra works done at the behest of the Respondent Nos. 1 & 2/Complainants in respect of the flat in question, the Appellants/OP Nos. 4,5 & 6 could not execute and register the Deed of Conveyance and hence, the Appellants/OP Nos. 4,5 & 6 have no deficiency in service on their part.

          The Ld. Advocate finally submits that in view of the submission so advanced, the Appeal should be allowed and the impugned judgment and order be set aside, the same being unlawful and unjust.

          On the contrary, the Ld. Advocate for the Respondent Nos. 1 & 2/Complainants submits that as the execution and registration of the Deed of Conveyance in respect of the flat in question has not yet been completed by the Appellants/OP Nos. 4,5 & 6, the Complaint Case is not hit by limitation as prescribed u/s 24A of the Consumer Protection Act, 1986 as the cause of action of the Complaint Case still continues. 

          The Ld. Advocate further submits that Rs. 8,58,000/- in total against the total consideration of Rs. 8,25,000/- in respect of the flat in question had been paid, as is indicated in the reply to the questionnaire by the Appellants/OP Nos. 4,5 & 6 before the Ld. District Forum (Running Pages-66 & 67 of Memo of Appeal), indicating the cost of extra works, if any, which are not substantiated by any cogent evidence.

          The Ld. Advocate finally submits that despite handing over of possession of the flat in question sometime in the year 2004 and receiving the payment in full, the act of non-execution and non-registration of the Deed of Conveyance, on the part of the Appellants/OP Nos. 4,5 & 6 who were duly authorized by the landowner by a registered Power of Attorney dated 22.11.1996 (Running Page-35 of Memo of Appeal) for execution and registration of the flat in question, constitutes gross deficiency in service on the part of the Appellants/OP Nos. 4,5 & 6 and hence, the instant Appeal should be dismissed and the impugned judgment and order be sustained.

          We have heard the submission of the parties appearing on the date of final hearing, considered their respective submission and perused the materials on records.

          As regards the issue of bar of limitation as prescribed under the Consumer Protection Act, 1986, we are in full agreement with the Ld. Advocate for the Respondent Nos. 1 & 2/Complainants that the instant Complaint Case is a case of continuing cause of action as execution and registration of the Deed of Conveyance in respect of the flat in question has not yet been completed.  In this connection, reliance is placed on a decision of the Hon’ble National Commission in Rajubhai Tank & Ors. Vs. Bindraben Bharatkumar Mavani (Minor) & Anr. decided on 2.4.2014 in Revision Petition No. 2391 of 2013 and also in Bhagya Laxmi Construction Vs. Monoranjan Basal & Ors. decided on 31.5.2013 in Revision Petition No. 668 of 2013, wherein it was held that the ‘cause of action has continued to exist because neither the possession was delivered nor the conveyance was executed in favour of the Complainant’, in which the Hon’ble Supreme Court dismissed the SLP decided on 11.11.2013 in SLP (Civil) No. 28910 of 2013.

          As to the execution and registration of the Deed of Conveyance, we also find substance in the submission of the Ld. Advocate for the Respondent Nos. 1&2/Complainants that there was deficiency in service on the part of the Appellants/OP Nos. 4,5 & 6 for non-execution and non-registration of the Deed of Conveyance in question inspite of handing over the possession of the flat in question sometime in the year 2004 and receiving the payment more than the total consideration of the flat as noted hereinbefore.

          In view of the above discussion and also in view of the citation (supra) we are unable to interfere with the impugned judgment and order, there being no illegality or material irregularity.

          In the result, the instant Appeal is dismissed and thus the impugned judgment and order stands affirmed.  No order as to costs.