DATE OF FILING : 01-09-2011.
DATE OF S/R : 29-11-2011.
DATE OF FINAL ORDER : 10-04-2012.
Smt. Mamata Banerjee,
wife of Sri Arup Kumar Banerjee,
residing at 14, Balai Mistry Lane, P.S. Shibpur,
District –Howrah,
PIN – 711103. ------------------------------------------------------------------ COMPLAINANT.
Versus -
1. Sri Swapan Dey,
son of Late Haran Chandra Dey,
residing at 62/1, Madan Biswas Lane,
P.S. Golabari, District – Howrah,
PIN – 711106, and also at 46/2, Kalitala Lane,
Salkia, P.S. Golabari.
2. Sri Phanindra Nath Chakraborty,
son of late Santosh Kumar Chakraborty,
residing at 72/6, Sheikh Para Lane, P.S. Shibpur,
District – Howrah,
PIN – 711103.
3. Sri Rabindra Nath Chakraborty,
son of late Satish Kumar Chakraborty,
residing at 72/5, Sheikhpara Lane,
P.O. B. Garden, P.S. Shibpur,
District – Howrah,
PIN – 711103.
4. Sri Nagendra Nath Chakraborty,
son of late Santosh Kumar Chakraborty,
residing at 31 & 32, Balai Mistry Lane,
P.S. Shibpur, District – Howrah,
PIN – 711 103.
5. Sri Harendra Nath Chakraborty,
son of late Santosh Kumar Chakraborty,
residing at 60/5, Sheikh Para Lane,
P.O. B. Garden, P.S. Shibpur,
District – Howrah,
PIN – 711103.
6. Smt. Shalata alias Smt. Ruma Chatterjee,
Wife of Sri Sisir Chatterjee,
Of 6, Kuldanaga Lane, P.S. Malipanch Ghora,
Howrah – 711106.
7. Smt. Anima Mal,
Wife of late Bachu Ram Mal,
Residing at 31 & 32, Balai Mistry Lane,
P.S. Shibpur, District – Howrah,
PIN - 7111031.
8. Sri Tapan Mal,
Son of late Bachu Ram Mal,
Residing at 31 & 32, Balai Mistry Lane,
Shibpur, District – Howrah,
PIN – 711103. -----------------------------------------------------OPPOSITE PARTIES. .
P R E S E N T
1. Hon’ble President : Shri T.K. Bhattacharya.
2. Hon’ble Member : Smt. Samiksha Bhattacharya.
F I N A L O R D E R
The instant case was filed by complainant U/S 12 of the C.P. Act, 1986,
against O.Ps. alleging deficiency in service wherein the complainant has prayed for direction upon the O.Ps. to execute and register the deed of conveyance with respect to flat measuring 920 sq. ft. in the 2nd floor of building at holding no. 31 & 32, Balai Mistri Lane, P.S. Shibpur, District – Howrah, together with the prayer for damages or compensation and cost of litigation.
The case of the complainant stands as follows :
The O.P. no. 1 in collusion with the other O.P. nos. 2 to 7 failed to execute the sale deed in favour of the complainant in spite of receipt of Rs. 5,32,000/- out of the total agreed consideration of Rs. 7,59,000/- vide agreement dated 20-04-2007 and further tender of the balance consideration of Rs. 2,27,000/-. To frustrate the spirit of the agreement for executing the sale deed within 36 months from the date of agreement, the O.P nos. 1 to 7 cancelled the power of attorney which was earlier granted in favour of O.P no. 1. The complainant made several approaches from 12-06-2010 to 15-06-2011 for causing execution and registration of the deed of conveyance but in vain. Hence the case.
3. The O.P. no. 1 by filing separate written version contended interalia that the complaint is not maintainable in view of the pendency of the Title Suit being no. 160 of 2011 pending before the Ld. Civil Judge, Sr. Division, Howrah, filed by the complainant on the self-same ground.
4. The O.P. nos. 2, 3, 5 & 6 by filing separate written version stated that all the o.ps. from 2 to 6 are the owners and occupiers of the land measuring 5 cottah 12 chatak 03 sq. ft. situated at 31, Balai Mistri Lane, Shibpur, Howrah, and contended interalia that the complaint is not maintainable as it is barred by limitation ; that the complaint was filed after 44 months from 30-08-2007 when the o.ps. refused to sell the property ; that the complaint is also barred by the principle of res-judicata in view of the pendency of T.S. No. 160 of 2011 ; that the complainant has not come before Court in clean hands ; that the description of the subject matter i.e. measurement of the residential flat is vague. So the complaint should be dismissed.
5. Upon pleadings of parties the following points arose for determination :
i) Whether the suit is maintainable ?
Is there any deficiency in service on the part of the O.P. ?
Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
6. POINT No. 1
Ld. Lawyer for the o.ps. argued that the case is not maintained as it is barred by limitation. It has been urged before us that the o.ps. ultimately refused to sell dated 30-08-2007 and the complaint was filed on 01-09-2011, not within the two years as enjoined in the Act, and that the complainant as plaintiff filed T.S. 160 of 2011 before the Ld. 3rd Court ( Civil Judge, Sr. Division, Howrah ) over the same cause of action and same subject matter. Therefore, it is barred by the principle of res judicata.
7. True it is that Section 24A of the Consumer Protection Act, 1986 as amended prescribed that no Forum shall admit a complaint unless the same was filed within two years from the date on which the cause of action arose. Sub section ( 2) of Section 24A authorizes the Forum or the Commission to entertain a complaint even after the period of limitation on the existence of sufficient cause for not filing the complaint within the statutory period by recording its reasons for condoning the delay. In fact the provisions of the Limitation Act, 1963 have not been specifically made applicable to the proceedings under this Act. The Limitation Act does not extinguish a right but only bars the remedy after a prescribe period of limitation. Section 2( j ) of the Limitation Act, 1963 defines the ‘period of limitation’ to mean the period of limitation prescribe for any suit, appeal or application by the schedule attached to the Limitation Act. The instant complaint is neither a suit, nor an appeal nor an application within the meaning of the provisions of the Limitation Act. We are to bear in mind that the Consumer Protection Act was made for better protection of interests of consumers and to make provision for the establishment of Consumer Council and other authorities for the settlement of consumer disputes and matters connection therewith. To be precise the Act has been enacted to promote and protect the rights of consumers.
8. Hon’ble Supreme Court in its decision reported in (1999) 6 Supreme Court Cases 627 opined that the addition of Section 24A in the Consumer Protection Act reflects the mind of the legislators that they had initially not intended to prescribe any period of limitation for filing the complaint under the Act. Furthermore the case of the complainant is fortified by the decision reported in CPJ Vol. I 2011 page 71 wherein Hon’ble National Commission is of the view that in case of continuing cause of action, the case cannot be barred by limitation. Therefore, it is immaterial if the agreement was executed on 20-04-2007 and the cause of action arose on 30-08-2007 i.e. the date of refusal to sell.
9. With respect to the principle of res judicate as canvassed on behalf of the o.ps. we are of the view that the provisions of this Act shall be in addition to and not in derrogatin of the provisions of any other law for the time being in force ( Section 3 ). In the instant case the complainant is a consumer and the o.ps. are service providers to give speedy relief and to protect the interest of the consumers the Consumer Forum Act has been enacted. Naturally the fragile reasoning that the suit is barred by the principle of res judicata cannot have any legs to stand upon as the suit has not yet been decided. Accordingly the point is disposed of in favour of the complainant.
POINT NOS. 2 & 3
10. Both the point nos. 2 & 3 are taken up together for consideration. The non execution and non registration of the sale deed is the bone of contention. The agreement for sale was executed on 20-04-2007. Admittedly the o.ps. accepted the part payment to the tune of Rs. 5,32,000/- and the balance consideration amount of Rs. 2,27,000/- out of total Rs. 7,59,000/- was tendered to the parties who refused to accept the same and ultimately refused to execute the deed of conveyance on 30-08-2008 to frustrate the contract dated 20-04-2007 the o.p. nos. 2 to 7 revoked the existing power of attorney already granted in favour of O.P. no. 1. We are constrained to hold that this bid on the part of the o.ps. is not supportable in the eye of law and they have no respite from the rigours of law. This is the principle of law that in absence of execution and registration, fact of possession of flat in question is totally meaningless and without any significance. So long the O.P. does not discharge this basic obligation, Forum has wide reach to direct the O.P. to complete the registration within stipulated date as fixed by the Forum.
11. Since the consideration money as per the agreement was fixed to be Rs. 7,59,000/- and the complainant has made part payment to the tune of Rs. 5,32,000/- and she is eager and ready to pay the outstanding amount to the tune of Rs. 2,27,000/-, the conduct of the o.ps. in delaying the execution and registration of the deed of conveyance requires to be dealt with handsome penalty. This is because punitive damages if saddled upon the recalcitrant o.ps. , that would serve as a beacon of hope to the helpless purchasers of identical properties and at the same time serve as a note of caution to the obstinate o.ps. who take recourse to fragile reasoning in refusing the execution and registration.
12. Therefore, we are of the view that the deficiency in service by the service provider o.ps. is glaring and therefore it is a fit case where the prayer of the complainant shall be allowed.
In the result both the points are disposed of in favour of the complainant.
Hence,
O r d e r e d
That the C. C. Case No. 64 of 2011 ( HDF 64 of 2011 ) be allowed on contest against O.Ps. with costs.
The O.Ps. be directed to execute and register the sale deed in terms of the agreement for sale dated 20-07-2007 in favour of the complainant in respect of the flat as mentioned in the schedule of the complaint after receiving the balance consideration money of Rs. 2,27,000/-, within 30 days from the date of this order failing the o.ps. shall pay compensation @ Rs. 100/- per diem till execution, registration and making over of the documents are completed.
The O.Ps. be further directed to pay a compensation to the tune of Rs. 1,00,000/- and litigation cost of Rs. 10,000/- within 30 days, failing the amount aggregating to Rs. 1,10,000/- shall carry interest @ 10% per annum till recovery.
The complainant is at liberty to put the decree into execution after expiry of the appeal period.
Supply the copies of the order to the parties, as per rule.
