This is an appeal under Section 15 of the C.P Act, 1986 against the Judgement and Final Order dated 05.10.2018 passed by the Ld. D.C.D.R.F., Siliguri in CC No 19 S 2006. The fact of the case in nutshell is that the appellant filed the instant Consumer Complaint against one Anjali Gupta and her son Satadal Gupta to the effect that the Complainant entered into an agreement with one Anjali Gupta on 19.12.2003 for purchasing a residential flat to be constructed and buildup by the land owner Anjali Gupta at Siliguri and the value of the flat was confined to 7,54,000/- at the rate of Rs. 650 per sq.ft along with car parking space of measuring 150 ft for a gross amount of Rs. 1 Lakh and it was further stipulated in that agreement that additional amount Rs. 1 Lakh would be payable towards electricity. Water, electric pump and other incidental works and down payment of the agreement was settled at Rs. 1,20,000/- in advance which was handed over on 17.12.2003 and it was further agreed that the Appellant/Complainant would pay an amount of Rs. 4 Lakh within seven days and third installment Rs. 1,40,000/-to be paid within 31.01.2004 and the final installment would be paid to the tune of Rs. 3,14,000/- at the time of handing over the possession of the said residential flat. It was also stipulated that the respondent would deliver the possession of the flat within six months from the date of agreement. To procure the money the appellant took loan of Rs. 9 Lakh from LIC HCL in the month of January 2004. It was further stipulated in the agreement that after 15 days from the date of delivery of possession of the flat and car parking space to the appellants the respondent would make arrangement for registration of the sale deed in favour of the appellants. The appellants in due course has paid all the consideration money in installments after taking loan by hypothecating flat but the original respondent Anjali Gupta intentionally harassed the appellant and did not take any initiative for handing over the possession of the flat and to get registration of the flat in the name of the appellants. The appellants time to time sent letter to the address of the respondent Anjali Gupta for such delivery of possession and registration of the sale deed but all the requests of the appellant was turned down by the respondent and for that reason the appellant was compelled to register the instant Consumer Complaint. Anjali Gupta after receiving the notice has contested the case by filing W.V through Power of Attorney Holders Satadal Gupta who happens to be the O.P No. 2 of that case. The Written Version in the name of Anjali Gupta contended that she was agreed to sale out the proposed flat to the Appellant/Complainant to the tune of Rs. 9,74,000/- as consideration price which also includes the other extra work and incidental cost and deed of agreement to that effect was executed on 19.12.2003 and the Complainant made payment as advance at Rs. 1,20,000/- on 20.12.2003 but the said advance money was returned back again to the Complainant by executing another money receipt on 28.02.2004. Thereafter, the Complainant/Appellant by persuasion obtained a house building loan from the LIC to the tune of Rs. 8,80,000/- and the youngest son of the Opposite Party stood as guarantor as the said loan. At first, the LIC sanctioned 6,40,000/- loan and disbursed the same by cheque to this Opposite Party as first disbursement. And at that point of time the Complainant requested the Opposite Party to have Rs. 2,40,000/- from the O.P as accommodation loan showing his acute financial crisis and the said accommodation loan was issued by a bank account cheque. Subsequently, the LIC disbursed Rs. 2,40,000/- in favour of the Opposite Party and accordingly the Opposite Party completed the work of the flat and ready to hand over the same. But, the Appellant/Complainants by adopting some tricks delayed the process of registration and he had intention to settle monetary gain and by laps of time the disturbance between the O.P and the Complainant become very critical and some well-wishers came to patch up the dispute and it was settled mutually that the remaining part of the agreement would be fulfilled very soon but ultimately the Complainants in order to gain something in the aforesaid deal intentionally deferred the process of registration of the sale deed and smelling out about the ill intention of the Complainant/Appellant the Opposite Party sent a letter on 07.01.2005 for urging the Complainant to have getting the registration of the deed, failing which necessary consequences would be followed to rescind the deed of agreement and ultimately on 11.03.2005 she rescinded deed of agreement and the Opposite Party Anjali Gupta communicated the said rescind the agreement by sending notice through Post with AD to the Complainant and subsequently she has refunded entire money of loan to the LIC department and liquidated the said loan amount and ultimately the LIC has issued certificate of NOC after satisfy the refund of the loan amount along with interest . The said W.V was submitted before the Ld. D.C.D.R.F., Siliguri on 01.06.2011 by Anjali Gupta through her son Satalal Gupta constituted power of attorney. The O.P No. 2 Satadal Gupta adopted the Written Version of his mother Anjali Gupta and also filed an additional Written Version on 06.01.2016 and contended that his mother Anjali Gupta has rescinded the said agreement dated 19.12.2003 and his mother Anjali Gupta out of her love and affection had transferred the said residential flat in favour of her Daughter-in-law in the month of November 2005 and since the said date of deed of gift Sikha Gupta got interest in the said property and for that reason the instant Consumer Complaint got infructuous and not executable in its present form. During the pendency of the case Anjali Gupta has expired and her sons and daughters as heirs of her was impleaded as parties to the case and they also contested the case by filing separate W.V.s. Thereafter, the Ld. Forum after recording the evidences has passed the impugned order where Ld. Forum came into conclusion that the instant deed of agreement was not registered as per provisions of Section 17 of the Registration Act and the original deed of agreement having only notarized certificate was not produced on the part of the Complainant/Appellant and for that reason the photostat copy of deed of agreement could not be considered and for that reason Ld. Forum has concluded the observation to the score that the no question of deficiency of service do arises vide the agreement dated 19.12.2009 and the claim of the Complainant was not based on proper foundation and no reliance could be given upon the said secondary evidence of photostat copy of the agreement and for that reason the case was bad in law. It was further observed by the Ld. Forum that daughter-in-law of the original O.P Anjali Gupta has got the property by virtue of a registration of the deed of gift from her mother-in-law Anjali Gupta and the Complainant without inquiry the actual owner of the property in question instituted the case against the persons who have no right or interest over there and for that reason the case of the Complainant becomes baseless having no authority in law to get relief anything in that case. Being aggrieved with this order this appeal follows on the ground that the Ld. Forum has mis-appreciated the facts and circumstances of the case. Ld. Forum has failed to understand the exact provisions of law. Ld. Forum has failed to scrutinized the evidences of this case in a rightful and proper manner and the order of Ld. Forum was liable to be set aside. The appeal was registered against the heirs of Anjali Gupta that is Satadal Gupta, Utpal Gupta, Chaitali Aich and Mitali Bhowal. All the respondents after admission of the appeal has received the notice of this appeal case and entered their appearance before this Commission to contest the appeal and the appeal was contested by them through personally and through by Ld. legal counsels. The appellant in this case also conducted the hearing on behalf of appellant No. 1 Arup Sengupta and Ld. Senior Advocate Mr. B. Prasad participated the hearing in this case on behalf of other appellants. The respondent Satadal Gupta being a practicing Advocate has conducted the hearing personally on behalf of respondents. Ld. Advocate Mr. T. Das also participated in the hearing on behalf of other respondents.

Decision with reasons

The history of the case is a checkered one as because it is pending since 2006. The alleged deed of agreement was executed between the Anjali Gupta and the appellants on 19.12.2003 and as per the agreement the date of handing over the possession of the flat and registration of the deed was stipulated in the month of June 2004. While, the process of construction of the flat and the incidental works of registration of the flat and payments of full consideration money and delivery of possession was not executed in the tune of the settlement stipulated in the deed of agreement dated 19.12.2003. Subsequently, the disputes were cropped up between the vendor and the purchaser for different reasons. Different of mind was arisen between themselves. Subsequently, the project was abandoned and the original Opposite Party since deceased Anjali Gupta has rescinded the agreement on 11.03.2005 by a postal letter registered with AD addressing to the appellants. Now, the question is whether such unilateral cancellation of the agreement is permissible in law? Second point is that for not performing the obligation of the agreement on the part of the seller comes within the purview of deficiency of service of the provisions of C.P Act, 1986. Such questions are to be answered in a judicious manner. On the contrary it is also to be considered whether before the registration of the case the property in question was already transferred by the original owner Anjali Gupta in the name of her daughter-in-law on 10.11.2005. Ld. Advocate of the appellant at the time of argument of the case mentioned the respondent No. 2 at the time of pendency of the case before the Ld. D.C.D.R.F., Siliguri on 12.05.2006 by filing a petition mentioned that the property in question was already transferred in the name of Sikha Gupta but the said petition was not disposed of by the Ld. Forum. It is further mentioned that before final decision Ld. Forum has almost delivered 217 Interlocutory Orders and not a single order reflects anything that the original owner Anjali Gupta has delivered the property in question in favour of her daughter-in-law. It is further argued that the respondent all along concealed the fact about the transfer of the said mortgaged suit property to Sikha Gupta which speaks a volume about the process of cheating adopted by the contesting respondents not only with the Complainant/Appellant but the justice delivery system. Ld. Advocate of the appellant mentioned that in this case the admitted fact that the agreement dated 19.12.2003 is not disputed by any party to this case and according to provisions of Section 58 of the Evidence Act no fact need be proved in any proceeding which the parties thereto or their agents agree to admit. He further argued that at the time of obtaining the loan the original agreement was deposited to the LIC Authority for hypothecation and the LIC Authority had returned back the said agreement to sale deed to the Opposite Party No. 1 when the Opposite Parties refunded loan amount to the LIC and obtained the NOC from the authority. So, the original deed was lying in the custody of the Opposite Party and for that reason the Complainant files petition before the Ld. Forum to direct upon the Opposite Parties to this case to cause production of the said deed of agreement before the Ld. Forum and the Ld. Forum by Order No 72 dated 27.06.2011 asked the Opposite Parties for cause the production of the said documents but that order was not complied with. So, the Complainant had no authority to produce the original document as the same was lying in the custody of other side which was intentionally withheld. So, the observation of the Ld. Forum in this respect is bad in law. He further argued that in this case the Siliguri Municipal Corporation has issued the occupancy certificate on 15.11.2006 while the Opposite Party unilaterally rescinded the contract on 11.03.2005 which is utter illegal on the part of her and clear intention of defrauding the purchaser is well reflected in the attitude of the Opposite Party. He further argued the LIC has sanctioned the loan and disburse the same to the O.P by creating equitable mortgage over the flat and car parking space as primary security. And at the time of such hypothecation the O.P undertook responsibility by executing mortgage agreement separately with the financier LIC HPL not to transfer right title and the interest in favour of any third party before repayment of loan. He, further argued that the O.P No. 2 falsely claimed that they have repaid the entire loan but the factual position is that which is reflected from the repayment schedule of loan shows that the appellants refunded the loan in installments till 2007 and unfairly utilized the  individual house building loan amount of appellants for the construction of the said apartment for commercial purpose for some monetary gains that too was repaid after a long time of termination of agreement and before received of occupancy certificate from Siliguri S.M.C. He further argued that the Opposite Parties intentionally harassed the Complainant/Appellant which is clearly revealed from their attitude and conduct when on 14.05.2018 Sikha Gupta wife of respondent No. 2 Satadal Gupta filed a petition under Order 1 Rule 10 of C.P.C for impleading herself in this case as party on 14.05.2018 that is very belated stage where the  process of adjudication of the instant Consumer Disputes were almost completed and the case was pending for final verdict. As such Ld. Forum was pleased to reject the said petition filed by Sikha Gupta. So, the act and conduct of the respondents in this case according to the contention of the Ld. Advocate of the appellant that the appellants a bonafide consumer who intended to purchase a flat for their residential purpose was defrauded and the bonafide purchasers should not be unprotected wherein the provisions of Consumer Protection Act is very much there to protect the interest and safeguard of the intending purchasers of the residential flats and for that reason the order of Ld. Forum should be set aside and proper reliefs should be provided in this case in favour of the appellant consumers.

All the respondents in counter argument mentioned that seeing the unwillingness of the appellant to get the registration of the property in question the mother of the respondents was compelled to terminate the said deed of agreement on 11.03.2005 by issuing a letter to the appellants and matter was also communicated to the LIC HFL. Thereafter the appellants and mother of the respondents with the intervention of some well wishers mutually settled the dispute and it was decided and agreed that the appellants would refund the said accommodation loan to the tune of Rs. 2,40,000/- which was taken by the appellants from the mother of the respondents and it was also decided that the appellants will refund the cost of the extra work to the mother of the respondents as per the actual bill amount and the remaining loan amount will be refunded to the LIC HFL. The appellant did not refund the said amount sum of Rs. 2,40,000/- to the mother of the respondent and also failed to pay the said cost of extra work to the mother of the respondents. But the mother of the respondents refunded the entire loan amount including the interest total sum of Rs. 9,55,313/- to LIC and after clearance of the loan transaction and the finality of the loan account the mother of the respondents has transferred the interest of the property in question in favour of her daughter-in-law Sikha Gupta on 12.11.2015 by deed of gift. That the mother of the respondents also filed a money suit against the appellant No. 1 for recovery of the said accommodation loan of Rs. 2,40,000/- before Ld. Civil Judge Senior Division Siliguri and get a decree and the execution case of the said decree is now pending. Ld. Advocate of the respondent Nos. 3 and 4 at the time of his argument mentioned that in a Consumer Case the person claims to be a consumer must prove that amount of consideration which he has to pay must of necessarily be proved to be available, right from the date of the initiation till the date of the decree he must prove that he has always ready and always been wiling to perform his part of the contract. The factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. Admittedly, the amount paid to the vendor through LIC was returned back before the initiation of the case rightly or wrongly with his consent or behind his back. He knew that the loan was not subsisting, he was not paying the installments. It was within his knowledge. He got all his documents back from LIC he never stated that he was ready to pay the money again. It was the obligation and responsibility to state specifically the part he has supposed to play in terms of the contract. Ld. Advocate Mr. Das who appears on behalf of respondent Nos. 3 and 4 further contended that during the course of the hearing of the case the Appellant/Complainant realized the inherent weakness of this case and so they changed their course and now claim compensation instead. In the original complaint he prayed for other reliefs but in that present context of the Consumer Complaint after amendment of complaint his prayer confines to only compensation. There was no averment of compensation in his original petition, no evidence for determination of such compensation. No whisper event in his Memo of Appeal so he cannot under any lawful way fall back upon his relief.

After hearing both sides and after consulting different judicial decisions of Hon’ble Courts cited by the Ld. Advocates to this case the Bench finds that the main defect in this case lies as because the property in question was already transferred by the original owner to the transferee Sikha Gupta before final pronouncement of Ld. D.C.D.R.F., Siliguri. After, change of ownership of the property in question the basic character of the case drastically changed. We know very well that in case of breach of contact the relief should be claimed by the person who has lost the valuable right for such breach of contract of the other side. It is apparent on the face of the record that until and unless the occupancy certificate is not handed over by the concerned building sanctioning authority there is no provision to have registration of the flat in favour of the purchaser. Admittedly, here in this case the occupancy certificate was issued by the Siliguri Municipal Corporation on 15.11.2005 whereas the unilateral rescind of the agreement took place on 11.03.2005. Rather, the refund of loan amount on the part of the owner of the property that is Anjali Gupta was completed in the year 2007. But, in the meantime she has transferred the property in the name of her daughter-in-law on 12.11.2005. So, the intention to defraud a purchaser of a flat is very much reflected in the present context of the case. For breach of such agreement certainly flows some right in favour of the looser of the agreement and such looser may protect his right before a Competent Authority for getting compensation. At the time of adjudication of this case before the Ld. D.C.D.R.F., Siliguri said Anjali Gupta was no more in the world. Suddenly, the question arises against whom the Complainant would get reliefs. According to the, provisions of Hindu Succession Act the heirs who have inherited the property of the persons committed the breach of contract, are indebted to pay all the dues to the looser of the agreement in proportionate to the shares they have inherited from the deceased who has violated the provisions of any agreement. Here in this case the picture is different, said Anjali Gupta has delivered interest of her property in the subject matter of the case in favour of her daughter-in-law by virtue of deed of gift executed on 12.11.2005 and her son Satadal Gupta by filing the additional W.V on 06.11.2006 mentioned before the Ld. D.C.D.R.F., Siliguri that his mother Anjali Gupta has delivered the said property in favour of Sikha Gupta. So, to safe the case from defects of the party the Complainant had the opportunity to implead Sikha Gupta in this case. Though, Sikha Gupta or her husband Satadal Gupta did not produce any deed of gift to prove the said transaction. However, in the year 2018 before the final adjudication by Ld. D.C.D.R.F., Siliguri, Sikha Gupta filed an application for substitution under Order 1 Rule 10 of C.P Code and Ld. Forum had the opportunity to implead her in this case to settle the dispute in a rightful manner. So, in that prospective the Ld. Forum has committed an error not allowing Sikha Gupta as party to the case and also the Complainant/Appellants has suffered a lot for not impleading a necessary party in this case. If, there is any deceitful activity on the part of the vendor towards the purchaser of flat then such deceitful activity may come within the purview of deficiency of service on the part of the vendor and such purchaser should come within the purview of Consumer Protection Act.

So, in overall observation this Appellate Forum finds that due to non production of original deed of agreement the case of the Complainant/Appellant should not be fatal where the document in question is undisputedly admitted by the other side. The second observation of the Ld. Forum that the Complainant/Appellants only had the option to go before the Ld. Civil Court as soon the agreement of sale was rescinded by the original Opposite Party No 1 since deceased Anjali Gupta and no cause of action was there to register a Consumer Complaint. This observation of Ld. Forum appears to be incorrect in the eye of law as because the settled position of law is that where a party sustains loss by reason of a breach of contract, the damages are to be guaranteed so has to place suffering the party in the same position as if the contract had been performed. If, it was found that there was some deceitful intention for such breach of contract then as per provisions of Section 3 of C.P Act, 1986 the person suffered for breach of such contract may approach the Consumer Forum for compensation. So, the overall view of this Bench is that the Judgement and Final Order delivered by the Ld. Forum challenged in this appeal suffers from inherent defects and liable to be interfered. Rather, the subsequent transferee when approached before the Forum for impleading her in this case the Forum had the opportunity to implead her to adjudicate the dispute in a proper manner. Rather, the Forum never discussed whether such rescindment of the agreement to sale on the part of the vendor unilaterally was the effect of deliberate latches on the part of the purchaser or not. And for that reason, the Ld. Forum should consider whether there was any deficiency service or not on the part of the vendor of the agreement. In such a position it is better to send back the case to the Ld. Forum for re-adjudicate the dispute after impleading the subsequent transferee Sikha Gupta who should be asked to file W.V and evidence and after completing the process of recording evidence through affidavit of Sikha Gupta and cross-examination in the shape of questionnaires and reply and after hearing the argument afresh of all sides shall deliver a fresh Judgement and Final Order touching the merit of the case without having any influence over the observation of this Bench. Thus, the appeal has got some merits.

Hence, it’s ordered

That the appeal be and the same is hereby allowed on contest without any cost. The Final Order dated 05.10.2018 delivered by Ld. D.C.D.R.F, Siliguri in CC No 19/S 2006 is hereby set aside. The case is returned back to the Ld. D.C.D.R.F, Siliguri to re-adjudicate the dispute after impleading the subsequent transferee Sikha Gupta who should be asked to file W.V and evidence and after completing the process of recording evidence through affidavit of Sikha Gupta and cross-examination in the shape of questionnaires and reply and after hearing the argument afresh of all sides shall deliver a fresh Judgement and Final Order touching the merit of the case without having any influence over the observation of this Bench.

In case said subsequent transferee of the property in question Sikha Gupta does not want to contest the case by filing W.V within 45 days from this day. Then, the Ld. Forum shall adjudicate the dispute afresh on hearing  argument only of both sides and by taking into consideration the deed of gift was executed on 12.11.2005 by original owner since deceased Anjali Gupta in favour of Sikha Gupta in respect of the property in question. All the contesting parties in this appeal are directed to appear before the Ld. D.C.D.R.F., Siliguri on 31.01.2022 for further direction from the end of Ld. D.C.D.R.F., Siliguri.

Let a copy of this order be supplied to the parties free of cost and the same to be communicated to the Ld. D.C.D.R.F., Siliguri.