Ashis Kumar Sarkar vs Uttam Karmakar & Anr

R.K. Agrawal, J., President Member

This First Appeal, under Section 19 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act), has been filed by one Ashis Kumar Sarkar, Opposite Party No.1 in the Complaint under the Act, against the Order dated 09.04.2018, passed by the West Bengal State Consumer Disputes Redressal Commission at Kolkata (hereinafter referred to as the State Commission) in Complaint Case No. 423 of 2016, whereby the State Commission, while allowing the Complaint on contest against Opposite Party No.2/Respondent No.3 herein and ex-parte against Opposite Party No.1/Appellant herein, directed both the Opposite Parties to jointly and severally execute and register the Deed of Conveyance in respect of Flat mentioned in the Schedule of the Complaint in favour of the Complainants/Respondents No.1 and 2 herein within 60 days from the date of the Order and to pay compensation of Rs.10,000/- and costs of litigation of Rs.5,000/- within 30 days from the date of the Order, failing which the same shall carry interest @ 8% per annum from the date of the Order till realization.

Briefly stated, the facts leading to the filing of the First Appeal are that the Complainants/Respondents No. 1 and 2 herein had entered into an Agreement dated 21.01.2008 with M/s Aartee Constructions, of whom Opposite Parties No. 1 and 2, the Appellant herein and Respondent No.3 herein respectively, were Partners, to purchase a Flat in the building to be developed by the said Opposite Parties at 10/1A, Turf Road, P.S. Kalighat, Kolkata.  The Opposite Parties had already entered into a Development Agreement with the Owners of the aforesaid premises for constructing/developing a multi-storied building on the said premises.  However, subsequently, the Opposite Parties purchased the said premises from the Owners and, therefore, cancelled the aforesaid Agreement dated 21.01.2008 and entered into another Agreement for Sale dated 17.05.2010 with the Complainants/Respondents No. 1 and 2 herein for a Flat on East portion of the third floor of the proposed building, measuring 1200 sq. ft., for a total consideration of Rs.23,10,000/-.  The amount already paid to the Opposite Parties was adjusted in the Agreement dated 17.05.2010.  After completion of construction of the building and payment of full consideration amount by the Complainants/Respondents No. 1 and 2, possession of the Flat was handed over to the Complainants/Respondents No. 1 and 2 on or about 05.10.2014.  The Opposite Parties requested the Complainants/Respondents No. 1 and 2 to hand over the original Agreement for mutation of their name in Kolkata Municipal Corporation and the Complainants/Respondents No. 1 and 2 handed over the same to the Opposite Parties. Thereafter, the Complainants/Respondents No. 1 and 2 requested the Opposite Parties to execute/register the Deed of Conveyance in their favour but they did not pay any heed to their request.

On 10.08.2016, the Complainants/Respondents No. 1 and 2 issued a legal notice to the Opposite Parties.  While the legal notice sent to Opposite Party No.1/Appellant was received back with the postal remarks “not claimed”, Opposite Party No.2/Respondent No.3 received the same and replied that he was ready and willing to execute and register the Deed of Conveyance but due to inaction of Opposite Party No.1/Appellant the same could not be executed and registered.

In this factual matrix, the Complainants/Respondents No.1 and 2 filed the afore-noted Complaint before the State Commission, praying for the following directions to the Opposite Parties, including the Appellant:

“(a) to direct the opposite parties to execute and register the Deed of Conveyance in respect of the flat described in the schedule hereunder in favour of the complainants or their nominee within a stipulate period and in default the conveyance execute and register through the machinery of the Hon’ble Commission;

(b)  to direct the opposite parties to hand over the original agreement and also to hand over the Completion Certificate;

(c)  to direct the opposite parties to pay Rs.5,00,000/- as compensation;

(d)  to pay cost of the proceeding as assessed Rs.50,000/-;

(e)  to pass injunction, receiver, attachment and interest;

(f)   such further or other order or orders as this Hon’ble Commission may deem fit and proper.”

Upon notice, while Opposite Party No.1/Appellant herein chose not to contest the Complaint, Opposite Party No.2/Respondent No.3 herein filed his Written Version to the Complaint, stating that he was willing to register the Deed of Conveyance in respect of the subject Flat.

On appreciation of the Evidence adduced by the Complainants/Respondents No. 1 and 2 herein as also Opposite Party No.2/Respondent No.3 herein and the material available before it, the State Commission allowed the Complaint and issued the aforesaid directions to the Opposite Parties, including the Appellant herein, inter alia, observing thus:

“On perusal of pleadings and the evidence on record it would reveal that on 17.05.2010 the complainants entered into an agreement with the OPs/developer-cum-owner to purchase of a self-contained flat measuring about 1200 sq.ft. super built up area on the 3rd floor at premises no. 10/1A, Turf Road, P.S. – Kalighat, Kolkata – 700025 at a total consideration of Rs.23,10,000/-.  The evidence on record goes to show that the complainants have paid the entire consideration amount to the OPs.  Accordingly, possession of the subject flat was duly delivered in favour of the complainants on 05.10.2014.

It is well settled that after accepting the entire consideration amount, it is bounden duty on the part of the developer/builder – (a) to deliver possession, (b) to execute the sale deed and (c) to obtain Completion Certificate from the local authority.  In that perspective, the OPs must fulfill their part of obligation.  The record reveals that though OP No.2 agreed to abide by the terms and conditions of the agreement but OP No.1 is evading his responsibility in this regard which simply signifies deficiency in service.

Considering the above, the complainants are entitled to reliefs.  In my view, an order directing the Opposite Parties to execute the deed of conveyance in respect of the property as mentioned in the schedule of the complaint within 60 days from date will meet the ends of justice otherwise the complainants may get the deed executed through the machinery of the Commission.  The complainants have to suffer to some extent for delay in execution of sale deed and as such they are entitled to compensation which I assess at Rs.10,000/-.  As the situation compelled the complainants to lodge complaint, they are also entitled to litigation cost which I quantify at Rs.5,000/-.”

Feeling aggrieved with the Order passed by the State Commission, the present Appeal has been filed by Opposite Party No.1/Appellant herein.

We have heard learned Counsel for the Parties and gone through the material on record.

The contention of Opposite Party No.1/Appellant herein is that he came to know about passing of the Impugned Order only when he received notice/copy of the Execution Application, being EA No. 126 of 2018, on 13.11.2018 and, thereafter, he obtained a copy of the Impugned Order on 16.11.2018.  He has not received any consideration amount from the Complainants/Respondents No. 1 and 2 herein and is not liable to execute/register the deed of conveyance.  It is further contended that he never received notice of filing of the Complaint and the postal endorsement about either receipt or refusal of the notice is also vague.  The newspaper, namely, “Aaj Kal”, wherein publication was made, is not widely circulated Bengali newspaper.  It is also contended on behalf of Opposite Party No.1/Appellant herein that he had filed a Civil Suit against Opposite Party No.2/Respondent No.3 herein for declaration, permanent injunction with mandatory injunction and also for restraining the Defendant from handing over, alienating or transferring the possession, right, title or interest in the suit property at 10/1A, Turf Road, P.S. Kalighat, Kolkata, wherein the subject flat was situated. Therefore, the Impugned Order be set aside and the matter be remanded back to the State Commission for fresh adjudication upon hearing the Parties and further Execution proceedings be stayed.

Learned Counsel appearing for the Complainants/Respondents No. 1 and 2 stated that as the consideration amount has already been paid and possession of the Flat in question has been handed over to them, there is nothing wrong in the Impugned Order passed by the State Commission, wherein the Opposite Parties, including the Appellant herein, have been directed to execute and register the Deed of Conveyance and pay compensation of Rs.10,000/- and litigation costs of Rs.5,000/- and, therefore, the Appeal is liable to be dismissed.

Learned Counsel appearing for Opposite Party No.2/Respondent No.3 stated that his client was ready and willing to execute and register the Deed of Conveyance in respect of the Flat in question in favour of the Complainants/Respondents No. 1 and 2 but because of inaction and non-cooperation on the part of Opposite Party No.1/Appellant herein, the Deed of Conveyance could not be executed and registered.

From a perusal of the Memo of Appeal, filed by Opposite Party No.1/Appellant herein, and the Complaint, filed by the Complainants/Respondents No. 1 and 2 herein, we find that the address of Opposite Party No.1/Appellant herein as mentioned in both the Cases is same.  Further, as stated in the Memo of Appeal itself, publication of notice in the Complaint was made in the newspaper, namely, “Aaj Kal” to serve Opposite Party No.1/Appellant herein and it was only thereafter when nobody had appeared on his behalf before the State Commission on the date fixed that the State Commission decided to proceed ex-parte against him and finally decided the Complaint after recording in the Impugned Order that “OP no.1 did not appear to contest”.  The said newspaper is a Bengali Edition published at Kolkata, Siliguri and Agartala, having a good circulation of about 1,90,000 copies per day, as per the data provided on the website of the said newspaper.  In this view of the matter, it cannot be accepted that the said newspaper is not widely circulated; no notice was served on Opposite Party No.1/Appellant; and he came to know about the Impugned Order on receipt of notice in the Execution proceedings, initiated by the Complainants/Respondents No. 1 and 2 herein.  Besides publication, we are unable to comprehend why the notice issued by the State Commission in the Complaint to Opposite Party No.1/Appellant herein at a particular address would not have served whereas notice sent by the State Commission in the Execution proceedings to the said person at the said address was served.  The presumption in such a situation would be that Opposite Party No.1/Appellant herein was served with the notice and for the reasons best known to him he was evading the said proceedings.  Opposite Party No.1/Appellant is taking a lame excuse that the aforesaid newspaper was not widely circulated.  In view of non-appearance on behalf of Opposite Party No.1/Appellant, the State Commission rightly proceeded ex-parte against him and decided the Complaint.  Even otherwise, had Opposite Party No.1/Appellant put in appearance before the State Commission and contested the Complaint on merits, in our opinion, for the reasons to be stated hereinafter, the fate of the Complaint, culminating in the aforesaid directions to the Opposite Parties, including the Appellant herein, would not have changed.

Further, as far as the payment of consideration amount in respect of the Flat in question is concerned, the State Commission has recorded a finding that evidence on record goes to show that the Complainants/Respondents No. 1 and 2 herein have paid the entire consideration amount to the Opposite Parties, which finding is based on due appreciation of evidence adduced by the Parties.  Had the consideration amount been not paid, the possession would not have been handed over to the Complainants/Respondents No.1 and 2.  There is also nothing on record to show that there was any arrangement of deferred payment between the Parties and the possession was not contingent upon the same.  In this view of the matter, even if the contention of Opposite Party No.1/Appellant is accepted that he had not received any consideration amount, it cannot be said that the Complainants/Respondents No. 1 and 2 have not paid the consideration amount.  In view of the aforesaid finding recorded by the State Commission, it is a fact that the Complainants/Respondents No. 1 and 2 have paid the consideration amount and it is internal matter between the Opposite Parties which of the said two Opposite Parties have actually received the consideration amount.

Insofar as the Civil Suit filed by Opposite Party No.1/Appellant, whereby he has prayed for certain reliefs, including a direction to restrain Opposite Party No.2/Respondent No.3 herein from handing over, alienating or transferring right, title and possession in the suit property at 10/1A, Turf Road, PS Kalighat, Kolkata, wherein the subject flat is situated, is concerned, the Complainants/Respondents No.1 and 2 cannot be made to suffer on that count.  They have already paid the consideration amount and, therefore, the Opposite Parties are obligated to execute and register the Deed of Conveyance.  In any case, the present proceedings have nothing to do with the said Civil Suit.

In view of what has been stated above, no ground is made out to interfere with the well-reasoned Order passed by the State Commission.  The Appeal fails and is dismissed accordingly.