State Consumer Disputes Redressal Commission
Ms/ Calcutta Skin Suppiers & Ors vs Md. Hussain Ali, Son Of Late ... on 30 August, 2013
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO FA/159/2012 (Arisen out of Order dated 14/03/2012 in Case No100/2011 of Unit-I, District Kolkata DF) DATE OF FILING :12.04.2012 DATE OF ORDER: 30.08.2013 APPELLANTS : 1. M/S. CALCUTTA SKIN SUPPLIERS, a partnership firm having its office at 45/1B, Shamsul Huda Road, Police Station- Karaya, Kolkata-700 017 2. M/S. S. MD. SAMIMULLAH SAHIB AND COMPANY, a partnership firm having its office at 45/1B, Shamsul Huda Road, Police Station-Karaya, Kolkata-700 017 3. AFTAB ALAM, son of Alhaj Samimullah, residing at 45/1B, Shamsul Huda Road, Police Station-Karaya, Kolkata-700 017 4. MEHER JAHAN, wife of Aftab Alam, residing at 45/1B, Shamsul Huda Road, Police Station-Karaya, Kolkata-700 017 5. TANVEER AHMED, son of Aftab Alam, residing at 45/1B, Shamsul Huda Road, Police Station-Karaya, Kolkata-700 017. RESPONDENTS : 1. MD. HUSSAIN ALI, son of Late Mohirunddin Ahmed, residing at 45/1B, Shamsul Huda Road, Police Station-Karaya, Kolkata-700 017 2. YASSIN BEGUM, wife of Md. Hussain Ali, residing at 45/1B, Shamsul Huda Road, Police Station-Karaya, Kolkata-700 017 HONBLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT MEMBER : MR. S.COARI MEMBER : MRS. MRIDULA ROY FOR THE APPELLANTS : Mr. Javed K. Sanwarwala, Ld. Advocate FOR THE RESPONDENTS : Mr.Shuvanil Chakraborty, Ld. Advocate. MRS. MRIDULA ROY, MEMBER
The instant appeal is directed against the judgment and order being No. 11 of 2011 dated 14.03.2012, passed by the Ld. District Consumer Disputes Redressal Forum, Unit-I, Kolkata in CDF Case No. 100 of 2011, allowing the petition of complaint ex parte against the OPs with costs, directing the OPs jointly and severally to execute the Deed of Conveyance in favour of the Complainant in respect of Flat in question and install a generator for the domestic purpose and arrange to use terrace as per agreement executed by the parties, further, directing the OPs to pay a sum of Rs.20,000/- (Rupees twenty thousand only) towards compensation for causing harassment and mental agony and a sum of Rs.3,000/- (Rupees three thousand only) towards litigation cost, within 45 days from the date of communication of the order, in default, an interest @ 9% p.a. shall accrue over the entire sum due to the credit of the Complainant till full realization.
Being aggrieved by that order, the OPs preferred the instant appeal on the grounds specifically including the point of limitation and on the point of not being heard.
The case of the Complainants (Respondents herein) , in brief, is that they have entered into an agreement for sale with the OPs (Appellants herein), for purchasing a flat measuring about 800 sq.ft. at a multi-storied building situated at premises no. 45/1/B, Samshul Huda Road, Kolkata-700 017 for a consideration of Rs.10,40,000/- (Rupees ten lakhs forty thousand only). The Complainants had paid Rs.8,92,000/- (Rupees eight lakhs ninety two thousand only) out of the total consideration amount. The balance amount was scheduled to be paid at the time of registration of Deed of Conveyance. The Complainants got possession of the said flat in the first week of November, 1998 and since then have been enjoying the same. The specific allegations of the Complainants are that the OPs, in violation of the terms of the agreement dated 07.05.1998, have not allowed the Complainants to use the terrace and did not install a lift and generator for use for domestic purpose by the flat owners, which caused much inconvenience to the Complainants. Further, OPs have installed a telecommunication network tower on the roof top of the said building, and, therefore, kept a huge noisy generator in the staircase which compels the Complainants to spend sleepless nights. The Complainants requested the OPs on several occasions to install the lift and the generator for domestic purpose, to allow them to use the terrace and to remove the noisy generator set from the space under staircase, but all were in vain. Lastly, the Complainants served legal notice upon the OPs to that effect but that too did not yield any fruitful result. Hence, the Complainants filed the case before the Ld. District Forum praying for direction upon the OPs to register the Deed of Conveyance, to perform all the duties and liabilities as per agreement, to pay Rs.1,00,000/- (Rupees one lakh only) to the Complainants for compensation for deficiency in service by not installing the lift, to pay Rs.1,00,000/- (Rupees one lakh only) towards compensation for deficiency in service for not registering the Deed of Conveyance and to pay Rs.1,00,000/- (Rupees one lakh only) towards compensation for unnecessary harassment, mental agony and anxiety.
Hearing the Complainants, the Ld. District Forum passed the order as mentioned above.
In course of hearing of the appeal, Ld. Advocate for the Appellants submits that the Appellants had filed a civil suit being Title Suit No. 257 of 2005 before the Ld. 2nd Civil Judge (Junior Division) at Alipore, praying for nullity of the agreement for sale dated 07.05.1995.
Ld. Advocate for the Appellants further submits that the case filed by the Respondents before the Ld. District Forum does not lie for being barred by the law of limitation as contemplated under Section 24A of the Consumer Protection Act. In support of his contention, Ld. Advocate for the Appellants cited decisions of (i) Honble National Commission, reported in II (2012) CPJ 514 (NC), in Jyoti Sharma vs. Haryana Urban Development Authority & Ors., and (ii) Honble Supreme Court of India, reported in AIR 2009 SC 2210 in State Bank of India vs. B.S. Agricultural Industries (I).
Ld. Advocate for the Appellants, furthermore, submits that having been served by the notice from the Ld. District Forum, the OPs, i.e., the instant Appellants engaged their Ld. Advocate to contest the case. The Ld. Advocate fell seriously ill while he was on a visit to Udaipur, Rajasthan, the brief of the case was lying with the Ld. Advocate. Owing to all these, no step was taken by the OPs before the Ld. District Forum. Ultimately, the OPs attempted to take step for filing show cause for non appearance along with W.V. But the Ld. District Forum declined to accept the same and finally passed the order ex parte.
The Appellants raised the point of limitation on the ground that the agreement for sale was executed on 07.05.1998 and as per Section 24A, CP Act, the petition of complaint ought to have been filed within two years from the date of execution of the agreement. Since the registration of Deed of Conveyance have not been executed so far, it cannot be said that the selling process, as per the agreement dated 07.05.1998, has been completed. Since the sale has not been completed so far, the cause of action is to be considered as continuing one. The decisions filed in this context by the Appellants are not applicable to the instant case since the cause of action is completed in the cited cases.
From the submission of the Ld. Advocate for the Appellants, it is clear that the Appellants were served with notice before the Ld. District Forum, but their Ld. Advocate did not take proper steps. In this connection, we are of opinion that the object of the Consumer Protection Act is to provide speedy remedy and there should be finality in the matter of adjudication of the dispute. The Ld. District Forum recorded that the OPs did not file W.V. and the matter was heard ex parte. The Ld. Advocate for the Appellants submitted that the Ld. District Forum did not pass any order for payment of balance amount of consideration.
The Ld. Advocate for the Respondents has submitted that they are willing to pay the balance amount of consideration.
Under these circumstances, we modify the impugned judgments to the extent as stated hereunder:-
The appeal is allowed, in part on contest without cost. The OPs are jointly and severally directed to execute the Deed of Conveyance in favour of the Complainants in respect of the Flat in question on receiving the balance amount of Rs.1,48,000/- (Rupees one lakh forty eight thousand only) towards consideration from the Complainants and also to install the lift and generator and to allow the Complainants to use the terrace of the said building as per agreement executed by and between the parties. The OPs are further directed to pay a sum of Rs.20,000/- (Rupees twenty thousand only) towards compensation for causing harassment and mental agony and a sum of Rs.3,000/- (Rupees three thousand only) towards litigation cost, within 45 days from the date of communication of the order, in default, an interest @ 9% p.a. shall accrue over the entire sum due to the credit of the Complainant till full realization.
The appeal is thus disposed of.
MEMBER MEMBER PRESIDENT