Date of Hearing the 27th Day of December, 2015
Date of Judgment Wednesday, the 2nd Day December, 2015
JUDGMENT
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) is at the instance of the Developer(Opposite Party No.1) against the intending Purchaser (Complainant) and Land Owners (Opposite Party Nos.2&3) to challenge the Judgment/Final Order dated 30.10.2014 passed by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Alipore (For short, Ld. District Forum) in Consumer Complaint No.189 of 2014.
The Respondent No.1 herein being Complainant initiated the Consumer Complaint under Section 12 of the Act alleging that the Opposite Party Nos.2&3 are joint owners of the land with a structure lying and situated at premises No.177/1, B. B. Chatterjee Road, P.S. Kasba, Kolkata – 700042 and he is a tenant under them in respect of two rooms with varandah on the ground floor of the said premises. Opposite Party Nos.2&3 being land owners entered into an agreement for development with Opposite Party No.1 for raising a multi-storied building. On 23.06.2007 an agreement was executed by and between the Complainant and the Opposite Parties in respect of selling out a flat measuring about 805sq. ft. on consideration price of Rs.900/- per sq. ft. for the area measuring about 565 sq. ft. and Rs.1200/- per sq. ft. in the excess area on consideration that an amount of Rs.25,000/- to be paid as an advance and balance amount will be paid after completion of the flat. It was stipulated that within 18 months the Developer shall hand over the said unit to the Complainant and will execute and register the Deed of Conveyance. It was also stipulated that the Developer shall bear expenses of alternative accommodation of the Complainant. In spite of payment of earnest money of Rs.25,000/- the Developer is not executing the Deed of Conveyance. Therefore, the Complaint has been filed with the following prayers, viz. - (a) a direction upon the Opposite Parties to execute and register the Deed of Conveyance in favour of the Complainant in respect of a residential flat of 805 sq. ft. as mentioned in the Schedule of the Petition of Complaint ; (b) to direct the Opposite Parties to hand over and deliver the possession; (c) to direct the Opposite Parties to pay Rs.3,000/- p. m. as per terms of the agreement; (d) to direct the Opposite Parties to pay the sum of Rs.3,30,650 for rents/licensing fees etc.; (e) to direct the Opposite Parties to pay a sum of Rs.1,00,000/- as compensation for harassment and mental agony etc.
The Opposite Party No.1 by filing a Written Version disputed the allegation contending inter-alia the Consumer Complaint is not maintainable and it is barred by limitation. It has been specifically stated that after expiry of 18 months as stipulated that alleged agreement stands rescinded and as such, the status of the Complainant became a monthly tenant under the Opposite Party Nos.2&3 in respect of demised premises.
Upon hearing the Ld. Advocates for the respective Parties and on going through the materials on record including evidence led by the Parties Ld. District Forum allowed the Consumer Complaint with costs of Rs.10,000/- payable by the Opposite Party No.1/Appellant in favour of the Complainant/Respondent No.1 with a direction upon the Opposite Parties to execute and register the Deed of Conveyance in respect of the property in question as per agreement and to deliver possession within one month, to pay a sum of Rs.3,000/- towards rental charge from the date of delivery of possession of tenanted portion till handing over the flat in question and to pay compensation of Rs.50,000/- towards harassment and mental agony, which prompted the Opposite Party No.1(Developer) to prefer the appeal.
I have scrutinised the materials on record including the B.N.A. filed on behalf of the Appellant and considered the submission advanced by the Ld. Advocates appearing for the Parties.
The materials on record indicate that the Opposite Party Nos.2&3 were the joint owners of the land with a structure lying and situated at premises No.177/1, B.B. Chatterjee Road, P.S. Kasba, Kolkata – 700042 and the Complainant is a tenant under the Opposite Party Nos.2&3 in respect of two rooms with varandah, kitchen and exclusive use of bath and privy on the ground floor of the said premises. On 21.05.2005 Opposite Party No.2&3 entered into an agreement for development with Opposite Party No.1 to raise a 4-storied building in the said premises. It also remains undisputed on 23.06.2007 the Opposite Parties had entered into an agreement with the Complainant wherein they agreed to sell a residential flat measuring about 805 sq. ft. with a condition that the Complaint shall make payment of Rs.900/- sq. ft. on the area measuring about 565 sq. ft. covered area which was in actual possession of the Complainant in the old building and Rs.1200/- per sq. ft. on the area in excess of the area which Complainant used to occupy.
It also remains undisputed that in accordance with the terms of the agreement the Complainant has paid Rs.25,000/- only as an advance and it was agreed that the balance amount will be paid by the Complainant after completion of the aforesaid flat. It was agreed by and between the Parties that within 18 months from the date of agreement the Developer (Opposite Party No.1) shall hand over the flat in question to the Complainant inhabitable condition and he shall also execute and register the Deed of Conveyance in favour of the Complainant after obtaining sanctioned plan from the Kolkata Municipal Corporation.
The fact remains that the said agreement was not translated into action for which the Complainant has come before the Consumer Forum for redressal of his grievances. In the Written Version the Developer has contended that after expiry of 18 months from the date the agreement, the agreement in question stands rescinded and as such, the status of the Complainant became monthly tenant under the land-lords (Opposite Party Nos.2&3). Such a proposition is not at all acceptable because after executing the Deed of Agreement the Parties cannot resile it. It is well settled law that after accepting part consideration amount and more particularly when the Purchaser is agreed to pay the balance amount the Developer has no scope to frustrate it. In this regard, the decision of Hon’ble National Consumer Disputes Redressal Commission at New Delhi reported in 2015 (2) CPR 310 (NC) (Bhikhubhai alias Vishal Bhai Ishwar Bhai Desai – Vs. – Hirabhai Kikabhai Patel and Another) is a pointer where it has been held that a builder is bound to execute Sale Deed after accepting consideration from buyer. In that view of the matter the Opposite Party No.1(Developer) cannot take plea that the agreement stands rescinded rather it indicates that the Developer is not at all interested to fulfil his part of obligation in executing the Deed.
Ld. Advocate appearing for the Appellant has submitted that the agreement in between the Complainant and Opposite Party No.1 was executed on 23.06.2007 but the Consumer Complainant has been filed on 25.04.2014 and as such, the proceeding was barred by law of limitation in accordance with the provision under Section 24A of the Act. The record reveals that in paragraph 15 of the Complainant has stated that the cause of action was arose on and from 23.06.2007 when the agreement for sale was executed by and between the Parties and lastly on 30.05.2013 when the Opposite Party No.1 in respect of receiving the request letter from the Advocate of the Complainant failed and neglected to execute and register the Deed of Conveyance in respect of the property and the same has been continuing day to day thereafter.
In this regard, the record reveals that the existence of an agreement between the Parties is quite apparent. The Opposite Party No.1(Developer) has accepted part consideration amount of Rs.25,000/-. The Complainant is also agreed to make payment of balance consideration amount but the Opposite Party No.1 is reluctant to execute the Sale Deed. The reason of such reluctance on the part of the Developer is quite understandable owing to sky rocketing price of the flat in the locality and to earn more profit.
Be that as it may it is well settled law that the cause of action is continuous, unless and until the possession and Sale Deed are not executed. In 2014 (2) CPR 32 (NC) (Raju Bhai Tank, Director of Odhab Hari Developers Pvt. Ltd. and Others – Vs. – Bidraben Bhavat Kumar Mavani (minor) through her natural guardian and another) the Hon’ble National Consumer Disputes Redressal Commission, New Delhi has held that the cause of action is continuous unless possession and Sale Deed are not executed. Therefore, the submission of the Ld. Advocate for the Appellant with regard to delay in instituting the Consumer Complaint does not appear to be acceptable.
Thereafter, Ld. Advocate for the Appellant has contended that in view of the provisions of Section 12A of the West Bengal Building (Regulation of Promotion of Construction and Transferring by Promoters) Act, 1993 his client being promoter, the Consumer Complaint is not maintainable. The submission of the Ld. Advocate for the Appellant in this regard also could not inspire me because in a decision of the Hon’ble Supreme Court of India reported in AIR 2009 SCC 3127 (EICM Exports Ltd. – Vs. – South Indian Corporation (Agencies) Ltd.) the Hon’ble Apex Court in paragraph 11 has been held that the word ‘suit’ has technical meaning which denotes proceeding instituted under Section 9 of the Civil Procedure Code, 1908. All legal procedure in the country are not suit. There are Petitions/Complaints/Application before the various Tribunals or Authorities but they are not suits as per Section 9 of CPC’. In another decision reported in (2008) 3 SCC 345 (Faqir Ch. Gulati –Vs. - Uppal Agencies Pvt. & another) the Apex Court has observed – ‘where the Builders commit breach of his obligation, the owner has the right to approach the Forum under the Consumer Protection Act, 1986 for relief as a consumer against the Builder as a service provider’. Section 3 of the Act makes it clear that the ‘remedy available under the Act is in addition to the normal remedy or other remedy they may be available to the Complainant’. Therefore, keeping in view the authorities mentioned herein above I have no hesitation to comment that the submission of the Ld. Advocate for the Appellant in this regard appears no force at all.
Lastly, Ld. Advocate for the Appellants has raised a point regarding impounding of the instrument of agreement. The agreement in question was executed in an unregistered document by the Developer as well as the intending Purchaser. Now, the Developer cannot take advantage of his own wrong. The impounding agreement is not a matter to be considered by the Consumer Fora. Where there is scope on the part of the Purchaser to purchase the property in question by paying stamp duty and registration fee at the time of execution of the agreement, the Developer would not be prejudiced in any way. .
Therefore, having heard the Ld. Advocates for the respective Parties and on going through the materials on record I have no hesitation to hold that the appeal is meritless one. To my mind, the Opposite Party No.1(Developer) had no occasion to prefer this appeal. In other words, the Developer (Opposite Party No.1) has made vein attempt to kick against pricks so as to cause delay of disposal against the spirit of the provisions of the Act and as such, the appeal is liable to be dismissed with costs which I quantify at Rs.10,000/- in favour of the Respondent i.e. Complainant.
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 the Respondent No.1 i.e. the Complainant of the case.
The Judgment/Final Order dated 30.10.2014 passed by the Ld. District Consumer Disputes Redressal Commission, South 24 Parganas at Alipore in Consumer Complaint No.189 of 2014 is hereby affirmed.
