State Consumer Disputes Redressal Commission
Dr. Karnadhan Saha vs Shri Kausik Ghosh on 7 April, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/1134/2015 (Arisen out of Order Dated 10/09/2015 in Case No. Complaint Case No. CC/322/2015 of District Howrah) 1. Dr. Karnadhan Saha S/o, Lt. Janmenjoy Saha, 4, Raghu Nath Chatterjee lane, Kolkata - 700 006. ...........Appellant(s) Versus 1. Shri Kausik Ghosh Bazarpara, P.S - Uluberia, Howrah - 711 316. 2. Shri Sajal Kumar Ghosh Bazarpara, P.S - Uluberia, Howrah - 711 316. 3. Shri Nirmal Kumar Ghosh Bazarpara, P.S - Uluberia, Howrah - 711 316. 4. Shri Debasis Ghosh Bazarpara, P.S - Uluberia, Howrah - 711 316. 5. Smt. Bula Ghosh Bazarpara, P.S - Uluberia, Howrah - 711 316. 6. Smt. Kaberi Mitra (Ghosh) Bazarpara, P.S - Uluberia, Howrah - 711 316. 7. Smt. Aparna Ghosh Bazarpara, P.S - Uluberia, Howrah - 711 316. 8. Smt. Tulu Bose Bazarpara, P.S - Uluberia, Howrah - 711 316. 9. Smt. Tusar Basu Bazarpara, P.S - Uluberia, Howrah - 711 316. 10. Sri Shyamal Ghosh Bazarpara, P.S - Uluberia, Howrah - 711 316. 11. Shri Pradip Kumar Dey Vill & P.O - Bazarpara, P.S - Uluberia, Howrah - 711 316. 12. Shri Sudip Kumar Dey Vill & P.O - Bazarpara, P.S - Uluberia, Howrah - 711 316. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Mr. Debraj Dey, Mr. Anirban Guin , Advocate For the Respondent: Mr. Amitesh Chakraborty, Advocate Mr. Amitesh Chakraborty, Advocate Mr. Amitesh Chakraborty, Advocate Mr. Amitesh Chakraborty, Advocate Mr. Sandipan Pal, Advocate Mr. Sandipan Pal, Advocate Dated : 07 Apr 2017 Final Order / Judgement
Date of Filing - 08.10.2015 Date of Hearing - 28.03.2017 The instant Appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the behest of the Complainant Dr. Karnadhan Saha to impeach the Order No.1 (Later) dated 10.09.2015 passed by the Ld. District Consumer Disputes Redressal Forum, Howrah (for short, Ld. District Forum) in CC/322/2015 whereby the Consumer Complaint initiated by the Appellant under Section 12 of the Act was dismissed with an observation that the same is not maintainable being barred by limitation.
The Appellant herein being Complainant lodged the complaint stating that the respondent nos. 1 to 10 being joint owners of a piece of land measuring about 31.10 decimel in Mouza -Latibpur, P.S. - Uluberia, Dist-Howrah within the local limits of Ward No.07 of Uluberia Municipality entered into an agreement with the respondent nos. 11 & 12 being partners of Annapurna Construction for raising construction of multi-storied building. The appellant agreed to purchase one self-contained flat measuring about 720 sq. ft. in 4th floor under Block-'B' being Flat No. A and one car parking space at Bazarpara, Mouza- Latibpur, P.S.- Uluberia, Dist-Howrah and entered into an agreement on 15.11.2010 with the respondents at a total consideration of Rs.13,00,000/-. The appellant has stated that he has paid the total consideration amount of Rs.13,00,000/- to the developer but a Deed of Conveyance was executed on 01.02.2012 only in respect of the flat showing the value of the same Rs.11,00,880/-. Therefore, on the allegation for not providing the car parking space, the appellant approached the Ld. District Forum with prayer for - (a) to direct the opposite parties to execute the Deed of Conveyance in respect of the garage space; (b) to direct the opposite parties to pay compensation of Rs.80,000/- and (c) litigation cost.
On 10.09.2015 the petition of complaint was moved for admission. The complainant also filed an application under Section 24A of the Act for condonation of delay of 586 days in filing the complaint. The Ld. District Forum after hearing the complaint has observed that as there is delay of 586 days after the execution and registration of the Deed of Conveyance on 01.02.2012, the case is barred by limitation in view of the provisions of Section 24A of the Act.
I have heard the Ld. Advocates appearing for the parties and seen the materials available on the record.
Having heard the Ld. Advocates appearing for the parties and on going through the materials on record, it would reveal that the appellant had entered into an agreement with the Respondents on 15.11.2010 to purchase one self-contained flat measuring about 720 sq. ft. in 4th floor under Block-'B' being Flat No. A and one car parking space at Bazarpara, Mouza- Latibpur, P.S.- Uluberia, Dist-Howrah at a total consideration of Rs.13,00,000/-. The appellant has paid the entire consideration amount but the developer has executed a Deed of Conveyance on 01.02.2012 only in respect of the flat at Rs.11,00,880/-.
Needless to say, after accepting the consideration amount, it is statutory obligation on the part of the builder to execute the Sale Deed in favour of the buyer and unless and until the Sale Deed is executed, the cause of action is a continuous one. In the case beforehand, inspite of accepting the entire consideration amount, in accordance with the terms of the Agreement for Sale dated 15.11.2010, the developer is yet to execute the Sale Deed in respect of garage space in favour of the appellant. The Ld. District Forum could not appreciate the situation from real perspective and in fact the appellant had no reason for filing an application for condonation of delay.
In 2014 (2) CPR 32 (Rajubhai Tank, Director of Odhav Hari Developers Pvt. Ltd. & Ors.- vs. - Bindraban Bharat Kumar Mavani (minor) through her natural guardian and Anr.) the Hon'ble National Consumer Commission referring a decision of the National Commission dated 01.05.2013 in RP/668/2013 (Bhagyalaxmi Construction - vs. - Manaranjan Basal) has observed thus -
" 5. Coming to the issue of limitation, raised before the Fora below on behalf of RP/OP, the State Commission has agreed with the finding of the District Forum that it was a case of continuing cause of action. The question of complaint being barred by limitation did not arise. From a perusal of the records and from the arguments of the Counsel of the revision petitioner, I find that it is a case where existence of the agreement between the parties for the purchase of a flat is not denied. Receipt of consideration of the same is also not denied. I, therefore, find myself in agreement with the Fora below that the cause of action had continued to exists because neither the possession was delivered nor the conveyance was executed in favour of the complainant".
In the case beforehand, it is quite evident that the respondents/developer could not keep their promise by registering or handing over the garage space for which they have already received the entire consideration amount. So, the decision referred above will squarely be applicable in the facts and circumstances of the present case.
Having given due consideration to the submission of the Ld. Advocates and on perusal of the materials available on the record, this Commission finds that the Ld. District Forum has misdirected itself in passing the order impugned. In other words, the impugned order being not in conformity with the proposition of law, it should be set aside.
In view of the above, the appeal is allowed on contest.
The impugned order is hereby set aside.
The complaint is admitted and registered.
The parties are directed to appear before the Ld. District Forum on 04.05.2017 positively and on that date the opposite parties must file written version keeping in view the provisions of Section 13(2)(a) of the Act and the decision of Three-Judge-Bench of Hon'ble Supreme Court reported in 2016 (1) Supreme 319 (New India Assurance Co. Ltd. - vs. - Hilli Multipurpose Cold Storage Pvt. Ltd.).
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Howrah for information.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER