State Consumer Disputes Redressal Commission
M/S. Ashoka Housing Corporation vs Ms. Mithu Mukherjee on 2 April, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/693/2013 (Arisen out of Order Dated 28/05/2013 in Case No. CC/224/2011 of District Kolkata-I) 1. M/s. Ashoka Housing Corporation 11, R.N. Mukherjee Road, Nilhat House, Kolkata - 700 001. 2. Ashok Kumar Baid, partner of Ashoka Housing Corporation A-7, Ironside Apartment, 11/3B, Old Ballygunge Second Road, P.S. Karaya, Kolkata - 700 019. ...........Appellant(s) Versus 1. Ms. Mithu Mukherjee D/o Late Samar Mukherjee, 111, Dr. Meghnad Saha Sarani, Kolkata-700 029 & also at Flat No.3D, 3rd Floor, 207, Sarat Bose Road, Kolkata - 700 029. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE KALIDAS MUKHERJEE PRESIDENT HON'BLE MRS. MRIDULA ROY MEMBER HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER For the Appellant: Mr. Avijit Chatterjee Mr. S. Roy Chowdhury Ms. Banasree Nandi, Advocate For the Respondent: Mr. A. K. Mukherjee, Advocate ORDER
02/04/15 HON'BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT This Appeal is directed against the judgment and order passed by Learned District Forum, Kolkata, Unit-I in case no.CC 224 of 2011 allowing the complaint case on contest with litigation cost of Rs.10,000/-. The OPs were jointly and severally directed to execute and register the deed of conveyance in respect of the flat in question in favour of the Complainant and to pay compensation of Rs.1,25,000/- for harassment and mental agony.
The case of the Complainant/Respondent, in short, is that the premises no.111, Southern Avenue now known as Dr. Meghnath Saha Sarani, Kolkata-700 029 was developed by OP No.1 as Owner-Developer since the partners of the said Corporation who are the Owner of the said premises decided to construct a multi storied building at the premises comprising of apartment and garages in the year 1976. The OP No.2 as partner of OP No.1 entered into an agreement with the Complainant on 23/03/76 for the sale and transfer of flat no.11B, 11th floor measuring about 2390 sq. ft. at a consideration of Rs.1,60,960/-. The consideration money was paid in full. Possession was delivered, but registration of the deed of conveyance has not been made. The Complainant got her name mutated in the Kolkata Municipal Corporation and paid municipal tax. The Complainant also paid maintenance bills raised in the name of the Complainant and also paid the electricity bills. The Complainant on several occasions requested the OP Nos.1 and 2 for the registration of the deed of conveyance, but to no effect. For the said reason, the complaint was filed before the Learned District Forum.
The Learned Counsel for the Appellant has submitted that the agreement for sale was executed on 23/03/76 and the Complainant had written a letter to the OP on 04/01/11. It is contended that the C. P. Act came into force in the year 1986 and, as such, the complaint is not maintainable. It is submitted that the valuation of the flat at present is more than Rs.4 crore and the Learned District Forum did not dispose of the prayer for amendment of W.V. It is submitted that the possession has been delivered, but the judgment of the Learned District Forum being without reason is bad in law. It is submitted that no document has been filed showing the payment of consideration in full. It is submitted that no application u/s 24A of the C. P. Act was filed. It is contended that in the letter dated 04/01/11 the Complainant expressed her personal difficulties which was not considered by the Learned District Forum. It is submitted that there is no deficiency on the part of the Appellant and compensation cannot be awarded under the circumstances of the case. The Learned Counsel for the Appellant has submitted BNA wherein reference has been made to the decisions reported in (2009) 3 RCR (Civ) 888 [Kandimalla Raghavaiah vs. National Insurance Co.]; (2009) 2 RCR (Civ) 628 [State Bank of India vs. B. S. Agricultural Industries]; (2001) 3 CPR (NC) 129 [Ramesh Bhai Vrajlal Ranpura vs. Gujarat Industrial Development Corpn.]; (2010) 4 RCR (Civ) 600 [Kranti Associates PVT. Ltd. vs. Masood Ahmed Khan]; (1996) 2 CPJ (NC) 103 [Quality Foils India Pvt. Ltd. vs. Bank of Madura Ltd. & Anr.]; (2007) 6 JT 49 [Co-operative Company Ltd. vs. Commissioner of Trade Tax, U.P.]; (2006) 2 PLR (SC) 159 [Mahabir Vegetable Oils Pvt. Ltd. vs. State of Haryana]; (2006) 2 Scale 345 [S. L. Srinivasa Jute Twine Mills P. Ltd. vs. Union of India]; (2008) 9 SCC 306 [T. Kaliamurthi vs. Five Gori Thaikal Wakf].
The Learned Counsel for the Respondent/Complainant has submitted that in view of decision reported in II (1999) CPJ 41 (SC) [Mr. France B. Martins & Anr. Vs. M/s Mafalda Maria Teresa Rodrigues], complaint case is maintainable and is not barred by limitation. It is contended that the payment of consideration money has been paid in full and the receipt towards acknowledgement has been filed. It is submitted that no escalation of the valuation beyond the agreed amount as per agreement for sale is permissible. It is contended that the agreement was executed in the year 1976 and the possession was delivered in the year 1978. It is submitted that when the C. P. Act came into force no period of limitation was prescribed.
We have heard the submission made by both sides and perused the papers on record. The Respondent has filed BNA. It appears that the agreement for sale is dated 23/03/76 and the possession was delivered on 01/03/78. The mutation has also been made in the name of the Complainant. It is the contention of the Complainant that she several times requested the OPs to execute and register the deed of conveyance, but to no effect. As to the point of maintainability it is the contention of the Learned Counsel for the Appellant/OP that the agreement was executed when the C. P. Act did not come into force and, as such, the case is not maintainable. On this point we place reliance on the decision of the Hon'ble Apex Court in the case of Mr. France B. Martins & Anr. Vs. M/s Mafalda Maria Teresa Rodrigues (supra). In the said case the agreement was executed in the year 1983 and possession was delivered in 1985. In the instant case the agreement was entered into by the parties on 23/06/76 followed by delivery of possession on 01/03/78. As regards the payment of consideration money it appears that the OP acknowledged the receipt of sum of Rs.35,960/- towards full and final settlement for flat no.11B, 11th floor of 'Ashoka' at 111, Southern Avenue, Kolkata-700 029 (vide annexure B) as per agreement for sale dated 23/03/76. This receipt was signed by the OP on 28/02/78. So it is evident that the consideration money was paid in full. It further appears that the OP has confirmed the delivery of possession of the flat in favour of the Complainant on 01/03/78 (vide annexure B1) as per agreement for sale dated 23/03/76. As per annexure C the Complainant paid Rs.2,055/- towards mutation. The Complainant vide letter dated 22/02/11 requested the OP to approve the draft deed of conveyance. The Learned Counsel for the Appellant has drawn our attention to the letter dated 04/01/11 written by the Complainant to the OP wherein the Complainant stated that due to various reasons and personal difficulties she could not get the deed of conveyance executed and registered in her favour to complete the transaction in respect of the above flat. No letter appears to have been written by the OP to the Complainant asking her to get the deed of conveyance registered. When the possession was delivered after receiving the payment of consideration money in full the non-registration of the deed of conveyance is a deficiency in service on the part of the OP.
As regards the present valuation of the flat the contention of the Learned Counsel for the Appellant is not acceptable, in as much as, the parties cannot deviate from the terms and conditions of the agreement. Having considered the submissions made by both sides and on perusal of the materials on record, we are of the view that facts of the instant case are identical with those of Mr. France B. Martins & Anr. Vs. M/s Mafalda Maria Teresa Rodrigues (supra) and the ratio laid down therein by the Hon'ble Apex Court is squarely applicable. The decisions cited by the Learned Counsel for the Appellant are not applicable in the facts of the instant case. There was long delay in the registration of the deed and we are of the view that the Learned District Forum was justified in passing the impugned judgment and order.
The Appeal is dismissed. The impugned judgment is affirmed. [HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MRS. MRIDULA ROY] MEMBER [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER