Date of Hearing : 23rd day of February, 2016

Date of Judgment : Friday, 4th day of March, 2016

                                      Judgment

         The instant appeal u/s 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) is at the behest of Opposite Party No. 1 to impeach the judgment dated 30th June, 2014 passed by the Ld. District Consumer Disputes Redressal Forum, South 24-Parganas (for short, Ld. District Forum) in C.C. No. 387/2013 wherein and whereby the Respondent’s consumer complaint u/s 12 of the Act was allowed  on contest against the O.P. No. 1 and exparte against the rest with a direction upon the O.P.’s to deliver possession and execute a registered  Deed of Conveyance in respect  of the property in question as per agreement within one month from date, to pay compensation of Rs.1,00,000/- and Rs. 15,000/- as litigation costs.

         The sole respondent herein initiated the complaint alleging that on 16.12.2013 complainant booked a plot measuring about 180 sq. ft. being plot No. Middletown (Bhasa) – 43 under P.S. Bishnupur, District South 24-Parganas at a consideration of Rs. 1,80,000/- only including the development costs/charge of the said land.  The complainant had already paid a sum of Rs. 1,83,820/- through A/C Payee cheques on diverse dates.  The O.P. 1/Developer promised to hand over the possession and registration of said plot in favour of the complainant within 2/3 years from the date of receipt of final payment and completion of development work.  But the O.P. did not hand over the plot in question in favour of the complainant and in this regard the request and reminders including legal notice dated 12.8.2013 went in vain.

         The O.P. No. 1 by filing a written objection challenge the maintainability of the case on the ground that it is barred by limitation.  The O.P. 1 states the complainant deliberately and intentionally for wrongful gain suppressing the material fact so far as undated letter and letter dated 10.9.2012 wherein they offered options, refund and surrender etc.  Therefore, the complaint should be dismissed as it lacks bonafide.

         After assessing the materials on record, the Ld. District Forum by the impugned judgment allowed the consumer complaint with the directions as indicated above, which prompted O.P. 1 to prefer this appeal.

         We have scrutinised the materials on record and considered the submissions advanced by the Ld. Advocates appears for the parties.

         Admittedly, an agreement for sale was entered into by and between appellant and respondent on 02.02.2007 with regard to purchase of a piece of land measuring about 2 cottahs/1800 sq. ft. being plot No. Middletown (Bhasa) – 43, Mouza – Bhasa, P.S. Bishnupur. District South 24-Parganas at a consideration of Rs. 1,80,000/-.  The respondent had paid the entire consideration amount in favour of the appellant through A/C Payee Cheques on different dates.  It was stipulated that the appellant being developer will hand over and deliver the possession and execute the registration of the said plot in favour of the respondent within 2/3 years from the date of receipt of final payment and completion of development work.  In fact, the respondent has paid excess amount of Rs. 3,820/- and in spite of receipt of payment of same, the appellant did not deliver or hand over the physical possession of the plot in question  in favour of the respondent.  Even, after passing of six years from the date of agreement the respondent did not take any pain to execute and register deed of conveyance in favour of the respondent.

         Needless to say, after accepting the consideration amount a developer/land owner is bound to execute the sale deed in favour of the purchaser and unless the deed is executed or plot in question is delivered to the purchaser, cause of action would be continuous one.

         Mr. Chandrasekhar Mukherjee, Ld. Advocate appearing for the appellant has submitted that the consumer complaint should have been filed within two years from the date of agreement i.e. on 02.02.2007.  The argument put forward by the Ld. Advocate for the appellant is devoid of merit.  In 2015 (1) CPR – 837 (M/S Usha India Limited v. Mr. Kajal Bhattacharjya), the Hon’ble National Consumer Commission has observed that until the possession is given to the intending purchaser the cause of action will continue.  Therefore, the question of limitation in the instant case does not arise at all.

         Ld. Advocate for the appellant, thereafter has submitted that by issuing letter undated and another letter dated 10.9.2012 the developer had given alternative proposal to the respondent regarding registration of Deed of Conveyance, housing and refund on surrender. In the letter dated 10.9.2012 issued by Managing Director of appellant, a proposal was given to the respondent that the plot will be registered but an additional 20% shall be borne by the respondent.  Ld. Advocate for the appellant has submitted that when in spite of alternative proposal for refund of money or handing over the plot on payment of additional 20% amount the respondent did not agree, no liability can be attributed upon them.

         In reply to the same Mr. Gouranga Gupta Roy, Ld. Advocate appearing for the respondent has placed reliance to a decision of National Consumer Commission reported in iv (2012) CPJ 155 (Meerat Development Authority v. Ashoke Kumar Sood).  In Paragraph 8 of the said decision it has been mentioned that it is a settled law that the original price will prevail.  The petitioner cannot charge the enhance price either in respect of original flat or in respect of alternative plot.

         The observation is based on sound legal principle that everybody is bound by the terms of the agreement being parties to the same.  Both the parties have signed the agreement with open eyes evaluating its pros and cons and therefore nothing can be added or detracted from the terms and conditions of the agreement. Therefore, bilateral agreement executed by and between the parties cannot be cancelled unilaterally by the developer alone.

         It cannot be disputed that the complainant had booked the plot and the developer had undertaken to deliver the possession within 2/3 years from the date of payment of entire consideration amount.  The respondent has paid the entire consideration amount.  Almost 6 years have gone but the appellant has failed to deliver the possession of the plot as promised.  This itself amounts to deficiency in service.  In other words, the appellant/developer has collected excess consideration amount than that of agreed amount from the respondent with no intention to hand over the plot within stipulated period.  Therefore, in our view, appellant has been grossly deficient in providing the stipulated service.

         After giving consideration to the submission advanced by the Ld. Advocate appearing for the parties, we are of the opinion that the appeal being devoid of merit should be rejected, but at the same time we must also record that the developer having no reasonable ground has come up before this Commission with this frivolous appeal and as such they must be saddled with costs which we quantify at Rs. 10,000/-.

         For the reasons aforesaid, the appeal is dismissed on contest with costs of Rs.10,000/- to be paid by the appellant in favour of respondent i.e. the complainant of the case. 

The judgment dated 30th June, 2014 passed by the Ld. District Forum in C.C. No. 387/2013 is hereby affirmed.