Sandhya Dey vs Kapil Sen & 2 Ors

Prem Narain, Presiding Member

The present revision petition no. 2041 of 2019 has been filed by Smt Sandhya Dey against Shri Kapil Sen and two others against the judgment dated 06.06.2019 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata ('the State Commission') in First Appeal no. 1342 of 2017.

The brief facts of the case are that the complainant/ respondent no.1 entered into an agreement on 26.02.2012 with the petitioner/ opposite party in the complaint for the purchase of self-contained flat. It was promised in the agreement that the sale of the flat will be done within 180 days of the agreement. The petitioner had entered into a development agreement with the developer who was to construct the whole building on the land given by the petitioner. The petitioner entered into an agreement to sell by selling the flats in the proposed share in the building. When the possession was not given by the petitioner to respondent no.1/ complainant, he filed a consumer complaint bearing no.16 of 2017 before the District Consumer Disputes Redressal Forum, North 24 Pgs, Barasat ('the District Forum'). The District Forum vide its order dated 24.11.2017 allowed the complaint as under:

"Going by the foregoing discussion hence it is ordered that the complaint is allowed on contest with cost against the OP-1 and dismissed on contest against the OP-2 and 3 without any cost. The OP-1 is hereby directed to deliver the possession in the questioned flat to the Complainant within 45 days from the date of passing of this order and register the deed of conveyance in respect of the said flat along with the entire specification as per the agreement for sale within one month from the date of passing of this order, in default the Complainant will be at liberty to approach before this Ld. Forum to get the registered deed of conveyance in his favour through the machinery of this Ld. Forum, in default the OP-1 shall refund of the entire amount to the complainant as paid by him along with interest @18% p.a. from the date making last payment towards the consideration amount till payment of the entire amount along with the abovementioned interest within two months from the date of passing of this judgment, in default the entire decreetal amount (Rs.8,01,000/-+ interest @18% p.a.) shall carry penal interest @20% p.a. for the default period, in default the OP-1 shall pay punitive damage for Rs.100/- per day, out of which 50% shall be paid to the complainant and the rest 50% to the SCWF. The OP 1 is also directed to pay litigation cost of Rs.2,000/- to the complainant within a period of 45 days from the date of passing of this judgment, in default the complainant will be at liberty to put the entire decree in execution."

Aggrieved by the order of the District Forum the petitioner herein/ OP no.1 preferred an appeal no.1342 of 2017 before the State Commission. The State Commission vide its order dated 06.06.2019 has partly allowed the appeal and observed as under:

"In view of the above, the impugned judgment/final order is modified to the extent that the appellant/ OP no.1 shall deliver possession and execute the sale deed in favour of respondent no.1/ complainant within 60 days from the date positively in default, the appellant/ OP no.1 shall refund Rs.8,01,000/- along with compensation thereon in the form of interest @10% per annum from the date of payment, i.e., from 25.02.2012 till its realisation. However, the litigation cost of Rs.2,000/- imposed by the District Forum is maintained".

Hence, the present revision petition.

Heard the learned counsel for the petitioner at the admission stage. Learned counsel for the petitioner has argued that the Consumer Forum is not authorised to pass any order directing the seller to register the conveyance deed in respect of a completed property. He stated that it is the jurisdiction of the civil court to order possession and registration of conveyance deed for which a suit for performance under specific relief Act has to be filed by the complainant. In support of his argument, the learned counsel for the petitioner has referred to the judgment of the Hon'ble High Court of Calcutta in the case of Sri Ranjit Kumar Chakraborty and Another vs Smt Sandhya Modak and Others in C O no. 3357 of 2016, decided on 14.12.2017, wherein it has held as under:

"9. In the present case, as is evident from the definition of 'consumer' as given in section 2 (1) (d) of the Consumer Protection Act, 1986 itself, the parties to a sale of an immovable property simpliciter cannot by any stretch of imagination be 'consumers' as contemplated in the 1986 Act".

Learned counsel for the petitioner has further pointed out that the complaint was barred by limitation as the agreement to sell was signed on 26.02.2012 and the complaint has been filed on 11th January 2017. It was argued by the learned counsel for the petitioner that as per the agreement to sell, sale was to be completed within 180 days and therefore, the cause of action arose on 26.08.2012, thus the complaint was highly barred by limitation and should have been dismissed on this count alone.

I have carefully considered the arguments advanced by the learned counsel for the petitioner and have examined the record. The petitioner has entered into a development agreement for raising the building on her land and it was accepted that she will get certain share in that building. She accordingly entered into an agreement to sell before the actual building could be raised. The respondent no.1/ complainant filed a consumer complaint when he did not get the possession and even the sale deed was not registered. The purchaser is definitely a consumer and the seller was a service provider as the agreement to sell was signed between the parties. In the case referred to by the petitioner in the case of Sri Ranjit Kumar Chakraborty and Another vs Smt Sandhya Modak and Others (Supra), the Hon'ble High Court has stated that sale of an 'immovable property simpliciter' is not covered under the Consumer Protection Act, 1986, it is seen that in the said case, the property was ready whereas in the instant case the property was to be developed and therefore, it cannot be treated as sale of immovable property simpliciter as the agreement also involved the service of constructing the flat by the petitioner.

Coming to the question of limitation raised by the learned counsel for the petitioner, it is seen that it is true that the agreement to sell was signed on 26.02.2012 and the sale was to be completed within 180 days of signing of this agreement to sell and the cause of action could be treated as having arisen on this date. However, neither the possession was given to the complainant nor the money was refunded to the complainant, therefore, the cause of action continued till the filing of the complaint. The issue of delay in filing the complaint was raised in the written statement filed by the opposite party and the District Forum has dealt with this issue. The District Forum has rightly reached to the conclusion that the cause of action continued in the present case till the filing of the complaint. The Hon'ble Supreme Court in the case of Meerut Development Authority vs Mukesh Kumar Gupta - IV (2012) CPJ 12 (SC) decided on 09.05.2012, held as under:

"In our view, the complaint filed by the respondent who had patiently waited for 27 years with the hope that he will get the plot was rightly not dismissed by the District Forum as barred by limitation because he had a recurring cause for filing a complaint in the matter of non-delivery of possession of the plot."

On the basis of the above authoritative judgment the cause of action continued till the filing of the complaint, hence, the complaint cannot be considered as time barred in the facts and circumstances of the case.

Coming to the merits of the case it is seen that the State Commission has passed a very balanced order that the petitioner should register the sale deed or in case of any difficulty, the amount of Rs.8,01,000/- paid by the complainant should be refunded to the complainant along with 10% per annum interest. Once the amount of Rs.8,01,000/- was accepted by the petitioner, the petitioner is responsible for either giving the possession of the flat and registering the sale deed in favour of the complainant or refund the amount paid by the complainant to the complainant along with interest. The interest ordered by the State Commission is very reasonable in the facts and circumstances of the case.

On the basis of the above discussion, I do not find any illegality, material irregularity or jurisdictional error in the order dated 06.06.2019 passed by the State Commission which requires any interferences from this Commission. Accordingly, revision petition no.2041 of 2019 is dismissed at the admission stage.