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Judgment
THESE appeals arises out of common order dated 23.2.2011, passed by State Consumer Disputes Redressal Commission, West Bengal (for short as '' State Commission '')
RESPONDENTS No.1 and 2/Complainants entered into agreement with Appellants/O.Ps.No.1 to 5 and Respondent No. 6/O.P.No.6 for purchase of flat along with garage space for a consideration of Rs.24,75,500/-. After paying entire consideration amount, respondent no.1 and 2 got the possession. Since purchase, they have requesting appellants and OP no.6 to execute and get registered the Deed of Conveyance, but till date they have failed to do so. Accordingly, complaint was filed before the State Commission. Appellants in their written versions denied the averments made in the complaint. It is stated that whatever, transaction have been entered between respondents Nos. 1, 2 and 6 is not known to them and as such they cannot be held responsible. It is further stated by the appellants that they have cancelled the Power of Attorney in favour of respondent No. 6.
STATE Commission vide impugned order allowed the complaint and passed following directions: " Hence, it is ORDERED that the petition of complaint stands allowed on contest with cost of Rs.5,000/- (Rupees five thousand only) against the OP Nos. 1 to 5 and ex parte without cost against the OP No. 6. We also hold that the complainants are also entitled to get compensation to the tune of Rs. 25,000/- (Rupees twenty five thousand) from the OP Nos. 1 to 5 for the harassment meted out to them as mentioned above and the OP Nos. 1 to 5 are jointly and severally liable to pay the amounts to the complainants. The OP Nos. 1 to 5 are directed to execute and register the deed of conveyance in favour of the complainants. The OP Nos. 1 to 5 are further directed to comply with the above orders in toto within 45 (forty five) days from the date hereof, failing which the complainants will be entitled to have the deed executed and registered through due process of law and also put the decree into execution as per law ".
ALONG with these appeals, applications for condonation of delay have been filed. However, in these applications, no period for which condonation is sought is mentioned. Reasons given for seeking delay as mentioned in the application state ; " That the impugned judgment and order was passed by the Hon ''ble State Commission on 23.2.2011 and a copy of the same was issued to the appellant on 01.03.2011 which was received by the appellant on 05.03.2011. Thereafter the appellant took legal advice regarding future steps to be taken in the matter and the local counsel advised to file appeal before Hon ''ble National Commission at New Delhi. Due to non-availability of the counsel because of summer vacation in the month of May and June, the appellant could not make a contact with their counsel at Delhi. However, in the month of July, 2011 the appellant No. 2 came to Delhi and met with his counsel who advised to sent all the papers pertaining to the present case for drafting a revision appeal properly. After procuring all the relevant papers including complaint case of the respondents herein, on 04.10.2011, the appellant sent the same by post which reached the counsel ''s office on 11.10.2011. The counsel prepared draft appeal and sent the same to the appellant for swearing affidavit, etc. hence the present First Appeal is being filed before this Commission ".
IT is apparent from the record that copy of impugned order was received by appellants on 5.3.2011 whereas, appeals were filed on 28.10.2011. Thus, there is a delay of about seven months in filing of these appeals. Only ground on which condonation of delay has been sought is, that it took about seven months for appellants to take legal advice regarding future steps to be taken in the matter. No name of the counsel from whom the legal advice was sought has been mentioned. Moreover, as per appellants '' case, appellant No. 2 met the counsel for the first time in July, 2011, then why appeals were filed after four months. There is no sufficient or reasonable explanation for this delay.
IT is well settled that " sufficient cause as envisaged under Section 5 of the Limitation Act, 1963 in each case is a question of fact " In "R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108 ", it has been observed: " We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition . "
FURTHER , Supreme Court in "Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) "laid down that; " It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer Foras. "
SINCE , no reasonable explanation for delay in filing of these appeals has been given, we hold that no sufficient cause nor any cogent reason has been shown which entitle the appellants to have the delay of 210 days condoned. Accordingly, these appeals are liable to be dismissed, being barred by limitation. Even on merits, appellants have no case. Contention of learned counsel for appellants is that respondents have procured the impugned order by practicing fraud upon the State Commission.
THIS plea of practicing fraud has been taken up for the first time before this Commission.
IN grounds of appeal, appellants have taken following pleas ;- (i) Respondents have failed to show that they have paid the entire amount of consideration to the builders; (ii) State Commission failed to consider this fact that respondents no. 1 and 2 have paid only part of consideration amount and not the entire amount; (iii) Appellants would be exposed to civil and criminal liabilities in future actions in the event they execute the Deed of Conveyance against such unpaid consideration and (iv) Lastly, there was no privity of contract between appellants and the respondents no. 1 and 2.
This plea that there is no privity of contract between the appellants and respondents No. 1 and 2, is against the record. Appellants themselves have placed on record Deed of Agreement dated 13.4.1997, which has been executed between appellants, builder/respondent no. 6 and respondents no.1 and 2. As per this agreement, appellants have given General Power of Attorney in favour of Mr. Arvind Basiul, Director of M/s Basil Builders & Developer (P) Ltd./respondent no.6. Though, defence of appellants is that the General Power of Attorney has been cancelled, however, it has no where been mentioned when the same was cancelled nor any deed of cancellation has been filed. Thus, appellants are fully liable for all their act and omissions.
STATE Commission in its impugned order has observed; "We have duly considered the submissions so put forward on behalf of the OP Nos. 1 to 5 and upon due consideration of the materials on record find that in this case the complainants are very much armed with various payment receipts in respect of the consideration money paid to the OP No. 6 in pursuance to the purchase of the properties in question. It also appears to be an admitted position that the complainants are happily residing in the flat along with garage space so purchased with their family members and there is no specific denial on the part of the OP Nos. 1 to 5 in this regard. Now, considering the surrounding circumstances and the conduct of the parties we are of the considered opinion that had it not been the case of due payment and acceptance of consideration money by the OP Nos. 1 to 5 it would not have been a smooth selling in favour of the complainants by free and peaceful enjoyment of the properties so purchased. The present litigation being a summary one we are not inclined to go deep into the pros and cons of the transaction so entered into between the parties. But, as discussed above, from the surrounding circumstances and conduct of the parties we can safely presume that the allegations so levelled against the OP Nos. 1 to 5 appear to be just and proper. We are not unmindful of the fact that the complainants have also been successful in producing different money receipts through which the payment was made and accepted by the OP no. 6 from the complainants. It is needless to say that at this juncture the OP Nos. 1 to 5 are estopped from taking the plea to the effect that they having severed their relationship with the OP No. 6 by canceling the previous power of attorney are entitled to avoid the just and proper claim of the complainants as put forward in this petition of complaint. We have also considered the plea of legal and valid cause of action as raised by the Ops and we hold that in a case of present nature the cause of action is a continuing one, which would be evident from the refusal of the Ops to execute and register the deed of conveyance in favour of the complainants after having accepted the consideration money in full. In view of the above discussions we are of considered opinion that the petition of complaint is quite maintainable and the complainants are consumers in the true sense of the term. The Ops are guilty of deficiency in service by not registering and executing the deed of conveyance in respect of the properties in question in favour of the complainants and that the complainants are entitled to the reliefs as prayed for. All the issues are accordingly disposed of in favour of the complainants. In the result, the complaint succeeds ".
WE fail to understand as to what prevents the appellants to execute the Sale Deed in favour of respondents no. 1 and 2, when entire consideration amount has been paid. We find no reason to disagree with the findings of the State Commission. There is no illegality and infirmity in the impugned order. Present appeals are having no legal force and being meritless are hereby dismissed on the ground of limitation as well as on merits, with punitive costs of Rs. 25,000/- each.
APPELLANTS are directed to deposit the costs of Rs. 25,000/- (Rupees Twenty Five Thousand only) in each case, by way of demand draft in the name of "Consumer Legal Aid Account ", within eight weeks from today.
IN case, costs are not deposited within the prescribed period, then appellants shall be liable to pay interest @ 9% p.a., till realization. List on 27th July, 2012, for compliance.