Per Mrs. M. Shreesha, Member

Challenge in this First Appeal, filed by the M/s Gokul Properties, under Section 19 of the Consumer Protection Act, 1986 (for short the “Act”) is to the order dated 01.08.2017 passed by the  West Bengal State Consumer Disputes Redressal Commission,  (for short “the State Commission.”) in CC No. CC/203/2017.    

2.       By the impugned order, the State Commission has allowed the Complaint on contest against the first and second Opposite Parties, jointly and severally, and directed them to execute the Sale Deed of the subject property in favour of the Complainant within 30 days after payment of ₹6,29,790/- towards balance consideration by the Complainant in favour of the first Opposite Party.  The first Opposite Party was also directed to make payment of compensation of ₹1,00,000/-  along with litigation costs of ₹10,000/- totalling ₹1,10,000/- in favour of the Complainant within 30 days from the date of the order otherwise it would carry interest @ 8% p.a. from the date of order till compliance of the same.

3.       Briefly stated, the facts of the case are that on 16.06.2006 the Complainant entered into a registered Agreement for Sale with the first Opposite Party (hereinafter referred to as “the Developer”) and second Opposite Party (hereinafter referred to as “the Landlord”) to purchase a self-contained flat measuring 711 sq. ft. super built-up area on the 3^rd floor of the building commonly known as “Mangaldeep” along with one open undemarcated car parking space on the ground floor and proportionate share in land at Premises No. 64/68/1, Khudiram Bose Sarani, Kolkata for a total consideration of ₹10,30,950/- @ ₹1,450/- per sq. ft. of the flat +cost of roof garden of ₹30,000/- + ₹80,000/- for car parking space aggregating to a sum of ₹11,48,950/-.  For making the payment of the said consideration the Complainant took housing loan from the 3^rd Opposite Party Bank of Baroda (for short “the Bank”) against the mortgage of the flat in question and upon confirmation by the office of the Complainant i.e. Air India for the sanctioned amount of ₹9 lacs, the Promoter directly received the amount of ₹7,99,160/- from the said Bank.  It is stated that in spite of making the payment of the entire amount to the tune of ₹11,48,950/- as per the Terms of the Agreement, the Opposite Parties did not proceed either to complete the construction of the flat or to deliver the same to the Complainant.   It is stated that since the construction remained incomplete and the pressure was mounted against the Complainant for accommodation, the Developer agreed that he would take all responsibility of the entire loan amount of the bank and he would return the same to the Bank on behalf of the Complainant after taking back the flat from the Complainant.  By such understanding, the Developer initially returned ₹2,10,000/- but thereafter did not pay any amount and as such the settlement did not materialize and thus the Developer grabbed the rest of the amount to the tune of ₹7,27,000/-.  It is further stated that in spite of repeated reminders, the Developer did not proceed in the matter and had left the building in a half-done condition i.e. after completing 90% of the job.  The Developer did not pay any heed to the request of the Complainant either to deliver the flat or to complete execution of the registration.  It is stated that the Developer informed him that the Landlord was not ready to deliver the flat or to register the Deed of Conveyance.  It is stated that the Complainant is paying interest to the Bank since 2006 without enjoying the property.

4.       Aggrieved, the Complainant filed a Complaint before the State Commission seeking the following reliefs:-

           1. Opposite Parties be directed to execute the Deed of Conveyance in favour of the Complainant and deliver the vacant possession of the flat with Completion Certificate to the Complainant;

          2.  Opposite Parties be directed to pay compensation to the tune of ₹20,00,000/- for mental agony, tension and unnecessary harassment;

          3.       To pay costs of ₹10,000/- towards costs.       

5.       The Developer filed their Written Version stating therein that the Complainant took the possession of the subject flat forcefully by breaking the key of the flat in question and has been enjoying the flat till then without paying the full consideration to the Developer. A verbal understanding was reached between the parties whereby the Complainant agreed not to purchase the flat and the loan had to be returned by the Developer. It is stated that the Complainant sought for refund of entire deposited amount from the Developer including the amount of ₹65,000/- paid towards the costs of registration charges paid by the Complainant at the time of registration of the Agreement for Sale.    It is further stated that the Developer paid a sum of ₹2,20,000/- towards instalments of loan obtained by the Complainant from the Bank. The Developer then intended to sell the said flat to a third party i.e. one Sh. Amitava Sardar so that he could make payment of the due amount to the Bank and for that the Developer repeatedly asked the Complainant to get the Registered Agreement for Sale cancelled but the Complainant refused to take any effective steps regarding the issue leaving the Developer with no option but to cancel the deal with the third party.  Complainant did not make any payment of EMI to the Bank at any point of time

6.       The Landlord filed a separate Written Version stating therein that the Developer did not construct the building in accordance with the Plan approved by the Municipal Corporation and hence the proceedings were stayed by the Municipal Corporation and vide its order dated 25.03.2008 the Special Officer of Municipal Corporation directed demolition of the entire unauthorized construction on the 3^rd floor and other portions of the newly constructed building.  It is stated that thus the Landlord had to suffer in the hands of the Developer.  It is further stated that the Developer failed and neglected to deliver the property within the stipulated period of 18 months as agreed to in the Agreement for Development; that the alleged flat of the Complainant is constructed beyond the sanctioned plan of the Kolkata Municipal Corporation and the said flat is required to be regularized by the Developer by procuring revised sanctioned building plan of the building. 

7.       The Bank also filed separate Written Version stating therein that as on 17.09.2015 the outstanding amount against the loan obtained by the Complainant amounts to ₹7,87,165/-.

8.       The State Commission vide the impugned order dated 01.08.2017 has partly allowed the Complaint directing both the Developer and the Landlord, jointly and severally, to execute the Sale Deed in favour of the Complainant within 30 days after receipt of an amount of  ₹6,29,790/- due towards balance sale consideration, together with compensation of ₹1,00,000/- to be paid by the Developer and costs of ₹10,000/-. 

9.       Aggrieved by the said Order the Developer preferred this First Appeal. 

10.     We have heard the Learned Counsel for the parties and perused the material before us.

11.     Learned Counsel appearing for the Appellant/Developer vehemently argued that the State Commission has erred in not considering that on receiving the entire deposited amount from the Developer, the Complainant’s relation with the Appellant as a ‘Consumer’ stands terminated; The Complainant’s letter dated 3.08.2008 gives liberty to the Appellant/Developer to transfer the said flat to a third party without any consent or permission of the Complainant; the Complainant filed the case after a lapse of six years from the date of the termination of the Agreement and that the State Commission has not addressed to this aspect and that the Complaint is barred by limitation.  Learned Counsel appearing for the Complainants contended that the Complaint cannot be said to be barred by limitation  as the cause of action is a continuous one since the Sale Deed has not been executed and only part of the amount was refunded to the Complainant.  For better understanding of the case, the letter dated 30.08.2008 is reproduced as herein:-

“With reference to the discussion and as settled between you and me it is hereby agreed that you are at liberty to sell ______ (illegible) ­­______ illegible and assure the said Flat unto and in favour of any Purchaser/Transferee at any condition and in any consideration as it may be decided by you against the said Flat excepting the amount by and through Bank which amount you are to pay directly to the Bank concerned.

          Please note it that the above liberty of transferring the said Flat by any means whatsoever is subject to making payment of the ______(illegible) dues to the Bank.

          After the entire amount is paid to the bank I hereby undertake to execute and if necessary to register all such papers, deeds, declarations, etc. etc. whichever and whatever it may be needed by you for valid transfer of the said Flat to any intending purchaser and I shall get the registered Agreement made in respect of the aforesaid Flat, cancelled by registration, cost of which shall be paid borne and discharged by you.

          This letter/Declaration is made irrevocable if the aforesaid terms and conditions are duly complied with.”

12.     The contention of the Learned Counsel appearing for the Appellant/Developer that at the time of booking of the subject flat the area of the Flat was 711 sq. ft. super built up area and after cancellation of the deal the area of the flat in question was modified to 1526 sq. ft. super built up area and thereafter the Complainant with the help of anti-social elements occupied the flat cannot be taken into consideration at this belated stage as it is seen from the record that admittedly no suit was filed by the Appellant herein challenging this action. 

13.     It is also seen from the record that a questionnaire was filed on behalf of the Appellant to the affidavit-in-chief filed by the Complainant.  Question No. eight states that the Appellant herein had repaid an amount of ₹2,15,000/- by way of Bankers’ cheque and by cash on various dates to the Complainant.  In reply to the said question the Complainant deposed that the amount paid was ₹2,10,000/-.  In reply to question No. 10 dealing with re-payment of ₹4,35,000/- to the loan account with Bank of Baroda, the Complainant had replied that the record of the Bank reveals the exact amount which has been paid.  The material on record evidences that the total sale consideration as agreed to between both the parties for a flat admeasuring 711 sq. ft. was ₹11,48,950/-, out of which the Complainant had paid ₹1,50,000/- and thereafter applied for a loan from Bank of Baroda, which has sanctioned ₹2,00,000/- on 13.09.2006, ₹3,99,580/- on 29.12.2006 and 1,99,580/- on 16.01.2007 totalling to ₹7,99,160/- The record shows that this amount was debited from the bank account of the Appellant/Developer. It is an admitted fact that the Appellant/Developer had refunded an amount of ₹2,10,000/-. The bank account shows that an amount of ₹2,20,000/-  was deposited in the loan account of the Complainant.  Totally the Complainant had paid an amount of ₹9,49,160/- (₹7,99,160/-+1,50,000/-).  Therefore, the Complainant had paid an amount of ₹5,19,160/- out of the total sale consideration of ₹11,48,950/- after deducting the amount of ₹4,30,000/- and hence the Complainant is due to pay to the Appellant/Developer an amount of ₹6,29,790/- as balance sale consideration. The Learned State Commission had recorded that the Complainant had failed to produce any possession letter issued by the Developer in favour of him. But however, has observed that the land-owner has revoked the Power of Attorney given to the Appellant/Developer on 20.02.2010 and has given a categorical statement that they have no objection to execute the Sale Deed in favour of the Complainant.  Having regard to the fact that the Complainant has paid part consideration to the Appellant/Developer towards the subject flat and also no steps were initiated by the Appellant/Developer if indeed the possession was taken by the Complainant by force, we are of the considered view that the cause of action is a continuing one and cannot be said to be barred by limitation as the Sale Deed was still not executed. 

14.     As regarding the letter dated 30.08.2008, it is stated that it is only after the entire amount is paid to the Bank that the Complainant would undertake to execute and cooperate to register any document.  It is evident from the record that the Bank had sanctioned an amount of ₹7,99,160/- by 16.01.2007 but the Appellant/Developer had refunded only an amount of ₹4,30,000/- and hence it cannot be said that the Appellant/Developer adhered to the terms of the letter dated 30.08.2008 and, therefore, the contention of the Appellant herein that the Complainant is not a ‘Consumer’  and that the privity of contract between the two has seized from 30.08.2008, is unsustainable.   Keeping in view all the afore-noted reasons this Appeal is dismissed confirming the order of the State Commission.

15.     The statutory deposit made by the Developer at the time of filing the First Appeal shall stand transferred to the Complainant/Respondent No. 1 herein.