AMAL KUMAR MUKHERJEE & ANR. vs TARAK NATH SARKAR & ORS.

Present Revision Petition has been filed by the Petitioners/ Opposite Parties against the impugned order dated 02.12.2016, passed by West Bengal State Consumer Disputes Redressal Commission at Kolkata ( for short, ''State Commission'') in First Appeal No.A/1036 of 2015.

Brief facts of the case as per the Respondent No.1/Complainant are that Petitioners/Opposite Parties No.1 and 2 entered into an agreement for sale with the Respondent No.1 on 18.04.2011 for selling one flat of super built up area measuring 660 Sq. feet after completion of the building within 18 months at a cost of Rs.8,00,000/-. On the basis of the agreement, Respondent No.1 paid a sum of Rs.1,50,000/- in cash on the date of execution of the agreement for sale and thereafter paid Rs.50,000/- on 29.06.2011, which was duly received and accepted by the Petitioners with an undertaking to sell a flat mentioned in the schedule B. An unregistered agreement was made to sell out 660 sq. ft. flat @ Rs.1,200/- per sq. ft. totaling a sum of Rs.8,00,000/- inclusive 20% super built up area and a part of the staircase.

Respondent No.1 stated that when the building in question was in the verge of the completion including the flat concerned, he met with the Petitioners and requested them to execute a Registered Sale Deed of the said flat in the name of the Respondent No.1 after receiving the balance consideration money and to give him possession of the said flat. Petitioners requested for some more time for completing of the flat and the building. Respondent No.1 again approached the Petitioners on 02.01.2013 requested them to give possession of the flat as also to receive the balanced consideration. Petitioners again asked for further time. The Respondent No.1 suspecting some foul play, made a complaint to the Police Station Barannagar vide GD No.169 dated 02.10.2013. Thereafter, he came to know that the Petitioners were going to hand over and execute the registered sale deed in respect of the said flat illegally to some other purchaser on a higher consideration depriving the Respondent No.l of the said flat. He again met with the Petitioners on 28.11.2013 and 02.01.2014 to tender the balance amount of Rs.6,00,000/- and to demand the possession of the flat as also execution of the registered sale deed. The Petitioners then told him that they would neither execute the sale deed nor give the possession. Hence, the Respondent No.1 filed a Consumer Complaint before the District Forum with following prayers:- " (i) The O.P. No.1 and 2 jointly and severally be directed to deliver the possession of the "B" schedule flat in favour of the complainant as per terms and conditions of the Agreement for sale upon receiving balance consideration money from the complainant. (ii) The O.P. nos. 1 & 2 jointly and severally be directed to execute and register the proper deed conveyance in favour of the Complainant on the nominated person/persons in respect of the "B" schedule flat as per terms and conditions of the Agreement for sale. OR In case of failure to execute and Register the Deed of sale by the O.Ps in that case the possession and execution and Registration of the deed of sale may be effected through process of the Forum. (ii) The O.P. No.1 and 2 jointly or severally be directed to obtain completion certificate from the local Municipal Authority or any Authorities which are competent to issue the same. (iii) The O.P.No.1 and 2 jointly or severally be directed to issue possession certificate in respect f the "B" schedule flat in favour of the complainant. (iv) The O.P.No.1 and 2 jointly and severally directed the complete the building and the flat in strict compliance with the terms and condition of the development agreement as well as agreement for sale as sanctioned building plan. Proper deed of conveyance in favour of the complainant on the nominated person/persons in respect of the "B" schedule flat as per terms and conditions of the Agreement for sale. Or In case of failure to execute and register the Deed of sale by the O.Ps in that case the possession and execution and registration of the deed of sale may be effected through process of the Forum. iii) The O.P. No. 1 and 2 jointly or severally be directed to obtain completion certificate from the local Municipal Authority or any Authorities which are competent to issue the same. iv) The O.P. No. 1 and 2 jointly or severally be directed to issue Possession certificate in respect of the "B" schedule flat in favour of the complainant. v) The O.P. No. 1 and 2 jointly or severally directed the complete the building and the flat in strict compliance with the terms and conditions of the development agreement as well as agreement for sale as sanctioned building plan. vi) The O.P. No.1 and 2 jointly or severally be directed to pay a sum of Rs. 4,00,000/- as compensation to the complainant on account of mental agony, pain, anxiety and unnecessary hereunder. vii) The O. P. No. 1 and 2 jointly or severally be directed to pay a sum of Rs.25,000/ as litigation cost to the complainant. viii) The O.P. No.1 and 2 and their men and agent be restrained by an interim order in the shape of Injunction from transferring, alienating and pertaining with possession of the "B" schedule flat in favour or any third person and from changing the nature and character of the same and from doing any illegal act in respect of the said flat as per doing any injunction in any manner their disposes of this case. viii) In the allegations inserted prayer no.1 to v the O.P.No. 1 and 2 jointly or severally be directed to refund the amount of Rs. 2,00,000/- by the O.P No.1 and 2 with such portion damages as the leave from may deem fit and proper. ix) Any other interim order. x) Any other relief to herein the complainant is entitled to get under law ."

Petitioners, however, denied all the allegations levelled by the Respondents.

The District Consumer Disputes Redressal Forum, North 24 Pgs, Barsat (for short, ''District Forum'') vide its order dated 30.06.2015 while allowing the Complaint observed as under; " It appears except OP No.-2 none of the OPs appear in this case. Complainant has filed affidavit in chief. We have heard the submission of Ld. Lawyer for the complainant and contesting the Ops. Admittedly there was an agreement between the OP No.1 and 3 in respect of the property mentioned in the B schedule. Admittedly an agreement was entered into the complainant and the OP No.1 and 2 to sale out 660 sq. ft. flat for a consideration of Rs. 8 Lakhs. Admittedly complainant has paid Rs. 2,00,000/- out of Rs. 8,00,000/- for purchase of the said flat. But complainant has not yet got the possession of the flat and complainant did not pay the balance consideration money. OPs stated that the OPs several time requested the complainant to arrange of the execution and registration of the title deed but complainant had paid only Rs.2,00,000/- as advance money,. OPs stated that the complainant avoided to pay the balance consideration money. Hence possession of the flat was not given and deed of conveyance was not executed and register in favour of the complainant. Considering the materials on record we are of the view that the complainant should pay the balance consideration money and OPs are in legal obligation to deliver possession of the flat and do registration of the flat if the complainant pays the balance consideration money. In view of the complainant is entitled to get relief as prayed for. Hence, it is ordered, That the complaint and same be allowed on contest against the OP No.2 and ex-parte against all other OPs Complainant is directed to pay balance consideration. Money of Rs.6,00,000/- within two months from the date of this order to the OP No.1 and 2. OP No.1 and 2 on receipt of the balance consideration money will deliver vacant possession of the flat in favour of the complainant. In default complainant is at liberty to get the deed execute and register through this Forum on deposit of balance consideration money. OP No.1 and 2 is also directed to pay compensation of Rs.20,000/-and Rs.10,000/- as litigation cost to the complainant within two months from the date of this order, in the alternative if complainant fails to pay the balance consideration money OP No.1 and 2 are directed to refund Rs. 2,00,000/- with interest 18% per annum from the date of filing of the case till final payment to the complainant. In default, OP No.1 and 2 shall have to pay a sum of Rs.200/- per day from the date of this order till its realization, as punitive damages, which shall be deposited by the OP No.2 and 3 in this State Consumer Welfare Fund ."

Aggrieved by the order of the District Forum, the Petitioners have filed an Appeal before the State Commission with a delay of 46 days. The State Commission while dismissing the application for condonation of delay as also the instant appeal as being time barred observed as under; " The appellants being developer had entered into an agreement with the Respondents No.1 to sell the flat in question at a consideration of Rs.8,00,000/- and received Rs.2,00,000/- as part consideration amount with a stipulation that the balance amount of Rs.6,00,000/- will be paid by the Respondent No.1 at the time of delivery of possession. The Ld. District Forum directed the Appellants either to execute the Deed after receipt of balance consideration amount or to repay the amount collected by them as an advance with interest thereon. The Appellants in spite of having knowledge about the final order/judgment intentionally did not prefer appeal within the period of limitation. In view of the above, the application filed by the appellants for condonation of delay is rejected on contest. However, there will be no order as to costs ."

Hence the Revision Petition.

We have heard the counsel for the Petitioners and gone through the record

Counsel for the Petitioners states that they have a good case on merits and injustice would be done if the delay of 46 days is not condoned.

We have gone through the application for condonation of delay. The reasons given in the application for condonation of delay as under; " 5) However, it is very needful to say that the appellant''s advocate of lower forum the aforesaid Smt. Silpita Chakraborty is badly mentally disturbed in rare and care to her younger brother who has been detected by Doctors under patient of Cancer and the said deceased was arrested most of the end of 2014 when the youngest brother of Advocate Silpita Chakraborty fall in unbearable pain in his stomach and was compelled to move at Mumbai at Tata Memorial Cancer Research Centre and in that event being guardian of her paternal home who only the person takes decision to minimize all the problems from all concerns if comes to the member of her paternal home that''s why the appointed advocate of the appellant''s Smt. Silpita Chakraborty was compelled to move at Mumbai with her brother at Tata Memorial Cancer Research Centre at the end of December, 2014 and return from the end of January, 2015. 6) Thereafter, in the month of February the youngest brother of Smt. Silpita Chakraborty again serious ill and further was compelled to take admission in a Hospital at Calcutta and was under treatment of reputed Doctors for a long period and since then on and often and frequently the youngest brother of Smt. Chakraborty has not recovering himself it. 7) It is very pertaining to say that the Advocate Smt. Chakraborty who acts and ply in role of guardian to her helpless youngest brother has put her all attention to rare and care to her youngest brother for his serious ailing condition which is still exists and for the above compelling reasons and circumstances the appointed advocate of the appellant''s completely forgotten the matter which would be required to prefer this appeal and very honestly and blindly the appellant''s handing over the all documents and papers were in believe that their advocate will take necessary steps to prefer this appeal within due time and there is no question ever been arose to the appellants to disbelieve their advocate that she could be failed to prefer this appeal before your Lordship within due time which appellants have failed now ."

Learned Counsel for the Petitioners has stated that the advocate who had been conducting the case of the Petitioners before the District Forum was a busy lawyer and was going to court to court and could not prefer the appeal in time before the State Commission.

A careful reading of the application for condonation of delay filed by the Petitioners reveals that in the entire application no dates have been mentioned. The order of the District Forum was passed on 30.06.2015. In the application, the petitioners have failed to give the day to day explanation for delay of 46 days in filing the appeal before the State Commission The learned Counsel for the Petitioners has also failed to explain why the Petitioners themselves did not pursue their case and why they could not engage another counsel when Smt. Silpita Chakraborty was otherwise occupied and unable to file the appeal before the State Commission. Further, Petitioners have also failed to place on record any medical certificate of younger brother of their counsel Smt. Silpita Chakraborty, Advocate of the District Forum in support of the contentions made in the application for condonation of delay that due to the serious ailment of her brother who was suffering from Cancer, she could not prefer the appeal before the State Commission in time. Moreover, all the citations produced by the learned counsel for the petitioner do not help the Petitioners because the facts of these cases are not applicable to the present Revision Petition.

Thus in view of the above discussions, we find that no jurisdictional or legal error has been shown to us in the impugned order to call for interference in the exercise of powers under Section

1(b) of the Consumer Protection Act, 1986. The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity in dismissing the application for condonation delay as also dismissing the appeal preferred by the Petitioners. Thus, the present Revision Petition being devoid of any merits is hereby dismissed

No order as to cost.