Malay Kumar Dutta & Anr vs Jayanta Bhadury

M. Shreesha, J

Challenge in this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short the "Act") is to the order dated 17.09.2013 passed by the West Bengal State Consumer Disputes Redressal Commission, in First Appeal bearing No. FA/203/2013. By the impugned order, the State Commission has allowed the Appeal preferred by Sh. Jayanta Bhadury, arrayed as the Opposite Party in the Original Complaint and set aside the order passed by the District Consumer Disputes Redressal Forum, Alipur, Kolkata and consequently dismissed the Complaint.

The facts in brief are that the Complainants entered into an Agreement with the Opposite Party on 20.11.2003 for purchase of a flat for a total consideration of ₹8,00,000/- out of which the Complainants had paid an amount of ₹7,56,000/-. It was averred that the Opposite Party had failed to deliver possession despite repeated requests and hence a Legal Notice dated 14.12.2010. There was no response regarding the delivery of possession, but an intention was expressed by the Opposite Party to refund the amount paid by the Complainants with interest within a period of six months written below the 'money receipt' dated 10.04.2010. It was pleaded that the small note was written illegibly and without the notice of the Complainants. It was averred that the Opposite Party was trying to rescind from the said Agreement for Sale on some false and frivolous pleas. Hence the Complainants approached the District Forum seeking the following reliefs:-

directing the Owner-Developer to deliver the Khas and vacant possession of theNort-Eastern side Second floor flat including at KMC Municipal premises no. 23/13, Durga Prasanna Paramahnsa Road, Kolkata-700047 P.S.- Jadavpur, District-South24 Paraganas in favour of the complainants and to execute and register the deed of conveyance for the same,

to pay a sum of₹35,000/- as compensation to the complainants for the harassments and mental agonies suffered by them,

to pay a sum of ₹15,000/- to the Complainants towards the cost for this litigation, and

to such other relief/reliefs to which the complainants are entitled to law and equity."

The Opposite Party filed their Written Version stating that the First Complainant was a classmate of his younger brother and a resident of the same locality. The Opposite Party started construction of a four-storeyed building at Premises No. 23/13, Durga Prasanna Paramanansa Road, PS Jadavpur, Kolkata which was his paternal property. The Complainants without seeking any permission, began to supply building materials for construction of the building. There was no account for the material supplied. In the month of November, 2003, the Complainants approached the Opposite Party with a request to sell an Apartment in the said building as he wanted to live in close proximity of the Opposite Party and got a Written Agreement for Sale drafted and executed. It was stated by the Opposite Party that the alleged Sale Agreement was illegal and was entered into under undue influence. The consideration provided was inadequate. There was no time-frame set for payment of the total consideration. The terms and conditions, the total sale consideration and the tentative date of the possession were all denied by the Opposite Party in this Written Version. It was further stated that the alleged Legal Notice was never served upon them. While so, Canara Bank initiated proceedings under provisions of SARFAESI Act against the deceased father of the Opposite party on 23.09.2009 and took possession of the entire premises. Case No. 428 of 2009 was filed in the Debt Recovery Tribunal at Kolkata for setting aside the impugned proceedings and for recovery of the possession of the said premises. It was denied that with any mala fide intention he expressed his intention to refund the amount paid. Complainants were fully aware of the taking over of the possession of the entire premises by Canara bank and the initiation of the SARFAESI proceedings. It was only at the instance of the Complainants, that the Opposite Party had to write the money receipt dated 10.04.2010 and the Complainants had rescinded from the Agreement dated 20.11.2003. It was pleaded that the Opposite Party did not receive the same from the Complainants as shown in the money receipt nor he is liable to pay any money to the Complainants and hence there is no deficiency of service on their behalf.

The District Form based on the evidence adduced allowed the Complaint in part directing the Opposite Party to execute and register the Deed of Conveyance and deliver the possession of the subject property as per agreement dated 20.11.2003 within one month from the date of order together with compensation of ₹5,000/- and costs of ₹10,000/- with default interest of 10% p.a. from the date of the default till compliance.

Aggrieved by the said Order Opposite Party preferred an Appeal before the State Commission which allowed the same after observing as under:-

"Firstly, it has been averred in Para-19 of the W.V. that Canara Bank started a proceeding under the provisions of SARFAESI Act against the deceased father of OP and on 23/09/09 took possession of the entire premises no. 341, Ganguly Bagan, P.S. Jadavpur, Kolkata - 700 047. The copy of the paper publication has been filed showing that the Bank took possession of the said property. It has further been averred therein that the OP on his part filed a case bearing no. 428 of 2009 in the Debt Recovery Tribunal (2), New Market, Kolkata for setting aside the impugned proceedings and for recovery of possession of the premises and the said case is still pending. It has been stated therein that the complainants in spite of having full knowledge of the same filed the petition of complaint before the Learned District Forum suppressing the material facts. On his point the learned Counsel for the respondent has drawn out attention to the answer given by the appellant herein in question no. 35 that after vacating it from attachment he recovered possession of the premises. It has further been stated in reply to question no. 35 that some cases are pending in this matter. It has been stated by the appellant in Page-5 of his evidence that the complainants were aware of the pendency of the case under SARFAESI Act and having got alarmed by the acquisition and self proclaimed by Canara Bank the complaint was filed against the OP-appellant and wanted to abandon his claim for a flat and claimed huge sum of money instead. It has further been stated that pursuant to such discussion through a common friend name Dipak Mujumder, the agreement dated 20/11/03 stood rescinded. The OP No. 1 put question to the complainant that the complainant deliberately suppressed the fact of acquisition of the premises by the Canara Bank under SARFAESI Act and obtained an interim order dated 02/09/11 by misleading the Learned District Forum. To this question the complainant no.1 replied that he had no knowledge about the acquisition of the property by Canara Bank.

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In the next place it has been argued by the Learned Counsel for the appellant that the agreement was dated 20/11/03 and as per agreement time for delivery of possession was three years, that is, within 20/11/06. It is the contention of the Learned Counsel for the appellant that the case was instituted in the year 2011 after the expiry of two years from the date of cause of action. Evidently, as per Clause-10 of the agreement the owner/builder was to deliver possession of the flat within three years from the date of agreement. Evidently, time being the essence of contract as per the intention of the parties arising out of Clause-10 of the agreement, the cause of action arose on the expiry of three years from the date of agreement. The date expired on 20/11/06, but the complaint was instituted on 02/09/11, that is, after the expiry of the period of limitation. The complaint was, therefore, barred by limitation.

No document is forthcoming as to whether or not the case under SARFAESI Act has been disposed of. Having regard to the submission made by the both sides and on perusal of the papers on record we are of the considered view that the complainants are not entitled to get relief in this complaint and the Learned District Forum was not justified in passing the impugned judgment and order."

Dissatisfied with the said Order, the Complainants preferred this Revision Petition.

The Revision Petitioner was present in person and submitted that the State Commission has erred in holding that the Complaint was barred by limitation without appreciating that the cause of action is a bundle of facts; that the Opposite Party vide letter dated 10.04.2010 agreed to pay back the amount of ₹7,56,000/- within six months from the date of the issue of the said letter; that the Complaint was instituted on 02.09.2011 which is within two years from the date of the money receipt; that the Opposite Party did not file any document of proceedings under SARFAESI and further that the Opposite Party was trying to dispose of the subject property to a third party.

Learned Counsel appearing for the Opposite Party filed the Written Synopsis admitting the execution of the Flat Buyer Agreement dated 20.11.2003; that the consideration amount was to be paid by 2010 but the same was not paid. During the course of time the Banker of the Opposite Party had initiated a case under SARFAESI Act and the said case is still pending before the Debt Recovery Tribunal, Kolkata bearing No. 428 of 2009; that the cause of action arose on 20.11.2006 which is the expected date of delivery of possession and, therefore, the Complaint is barred by limitation. That Canara Bank issued two notifications published in 'Ananda Bazar Patrika' on 01.10.2009 and also in the 'Telegram' on 12.11.2009 to inform that a case in respect of the said premises was initiated under SARFAESI Act and, therefore, there is no deficiency of service on the part of the Opposite Party.

First, we address ourselves to the issue whether the Complaint is barred by limitation. Execution of the Agreement dated 20.11.2003 is an admitted fact. It is also not in dispute that as per the agreement the date of delivery of possession was 20.11.2006 and that the Complainants were not given delivery of the possession of the subject flat. As per the agreement the total consideration of the flat is ₹8,00,000/- out of which Complainants had paid an amount of ₹7,56,000/-. For the sake of limitation, even if the money receipt dated 10.04.2010 is not taken into consideration, the cause of action is a continuing one as the promised date of delivery was 20.11.2006 and the possession was not handed over to the Complainants till the date of the filing of the Complaint. Therefore, the finding of the State Commission that the Complaint is barred by limitation is set aside.

Now we address ourselves to the merits of the case. When the execution of the agreement dated 20.11.2003, the promised date of delivery of possession being 20.11.2006, the receipt of ₹7,56,000/-, are not in dispute, the short point which falls for consideration is whether there is deficiency in service on the part of the Opposite Party in not delivering the possession. It is pertinent to note that there were some interrogatories filed by the Complainants in the Original Complaint before the District Forum and the questions and their respective answers which the relevant to the case are being reproduced as hereunder:-

Q. 10. Mr. Bhadury did you execute any agreement for sale in favour of complainant?

Ans. The Agreement dated 20.11.2003, filed by the Complainants contains my signature.

Q.17. Mr. Bhadury do you admit that you have received a sum of ₹7,56,000/- from the complainant?

Ans. I do not admit. A Bank statement in this matter will falsify the complainants' allegations.

Q.19. Mr. Bhadury did you file any document to show that one Dipak Makumdar had mediated regarding the refund of money received by you from the complainant with interest within a fixed period mentioned therein?

Ans. Yes, please refer to the evidence on Affidavit sworn by Dipak Majumdar, himself.

Q.No.20 Mr. Bhadury did you kept your promise as made in the said alleged written undertaking dated 10.04.2010?

Ans. I have not yet thought about the matter. The writing, howsoever, was without any consideration.

Q No. 33. Mr. Bhadury I put it to you that your said building at 341, Ganguly Bagan is not yet completed and habitable one?

Ans. The question is not a fact and I deny it.

Q No. 34. Mr. Bhadury I put it to you that you have not yet obtain the completion certificate from the K.M.C. till today?

And. The answer has already been given in reply to Question NO. 4 .

Q. No. 35 Mr. Bhadury I put it to you that your said premises at 341, Ganguly Bagan is not free from encumbrances and the same is still charged with bank against the loan taken by you?

Ans. After vacating it from attachment, I have recovered possession of the premises. But it is true that some cases are pending in this matter."

From the afore-noted answers it is evident that when the Opposite Party was questioned "the subject premises is not free from encumbrances and the same is still charged with bank against the loan taken by you", the Opposite Party had deposed that "after vacating it from attachment, he had recovered possession of the premises but some cases are pending in the matter." But even in the Written Synopsis filed on 11.09.2017 the Opposite Party did not state the status of the proceedings before any Tribunal/Authority. Having regard to the fact that there is an admission that the Complainants had paid the said amount and there was an agreement executed with the promise to deliver possession by 20.11.2006 and further in the absence of filing of any copy of any of the proceedings or any documentary evidence to substantiate the plea taken by the Opposite Party that the possession of the subject property has been taken over by the Bank, we are of the considered opinion that there is deficiency of service on the part of the Respondent in not handing over possession of the subject flat to the Complainants. Hence this Revision Petition is allowed and the order of the State Commission is set aside. We restore the Order of the District Forum. However, if any evidence is produced before the Executing Court that the possession of the subject property is with the Bank and that SARFAESI proceedings are still pending, we are of the considered view that in the alternative the Respondent shall refund the money deposited by the Complainants with him with interest @ 12% p.a. from the respective dates of deposits till the date of realization. We also award costs of ₹25,000/- to be paid by the Respondent to the Complainants.