M/S. K.K. Estate & Developers Ltd. & Anr vs Mousumi Ghosh & 2 Ors

This revision is directed against the order of the State Commission, West Bengal dated 28 th July, 2016 vide which the State Commission dismissed

the appeal No.A/167/2016 filed by the petitioners against the order dated 29.1.2016 of District Forum North -24 Pargana, Barasat in CC/397/2012.

Briefly put facts relevant for the disposal of the revision petition are that respondent No.1 Mousumi Ghosh and her late husband Shri Barin Ghosh

entered into an agreement with the opposite party developer for purchase of a flat measuring 1410 sq. ft. on the first floor of premises No.9A Raja

Basanta Roy Road, Kolkata alongwith a covered car parking as also proportionate share in the land. As per the agreement the consideration price of

the flat was Rs.9,87,000/- and the consideration amount for the covered car parking was Rs.25,000/-.

It was agreed by the parties that the consideration amount shall be paid in installments and the opposite party developer shall deliver possession of the

subject flat to the complainants on or before 31.7.1998. According to the complainants pursuant to the agreement they paid sum of Rs.10,55,000/- i.e.

total consideration amount in installments during the period w.e.f. 18.10.1993 to 20.9.1995. The specific details of the payments are given in para No.9

of the complaint. It is the case of the complainants that although the complainants have paid entire consideration amount for the flat as well as car

garage the opposite party has failed to deliver possession of the flat and car garage to the complainants. Being aggrieved the complainants filed a

consumer complaint in the considered District Forum.

The opposite parties in response to the notice of service of complaint filed a written version purported to have been filed on behalf of opposite party

No.2 who is Director of the opposite party No.1. In the written statement the opposite parties denied the allegations of deficiency in service mainly on

the ground that the complainants were supposed to pay total consideration amount of Rs.17,04,000/- against which they have paid only a sum of

Rs.10,55,000/-. It was alleged that as the complainants have failed to comply with their part of bargain the opposite parties cannot be blamed for

failing to deliver the possession of the subject flat.

The District Forum North 24 Pargana, Barasat vide its order dated 15 th March, 2013 partly allowed the complaint. Operative portion of the order is

reproduced as under: -

“That the case be and the same is allowed in part, on contest against the O.P. No. 1 & 2 with cost.â€​

That both the O.P. No. 1 & 2 are jointly and severally directed to deposit an amount of Rs.20,55,000/- only to the head of the ‘President’

NCDRF, North 24 Parganas, at Barasat, within one month from the date of this order and on receipt of the same, it should be disbursed to the

complainants. That both the O.P. No. 1 & 2 are jointly and severally be further directed to pay cost of litigation of Rs.10,000/- to the complainants,

within one month from the date of this order.

In the event of non-compliance of any portion of the order by the OPs within a period of one month from the date of this order, all the OPs jointly and

severally are further directed to pay a sum of Rs.300/- per day from the date of this order till full satisfaction of the decree as punitive damages, from

which 50% of such amount shall be paid to the complainants and the rest 50% amount shall be paid by the OPs in the Consumer Welfare Fund. Let

copies of the order be supplied to the parties free of cost when applied for.â€​

The opposite parties being aggrieved of the order of the District Forum approached the State Commission in appeal. The State Commission, West

Bengal on re-appreciation of evidence vide its order dated 28.1.2015 allowed the appeal, set aside the order of the District Forum dated 15.3.2013 and

remanded the matter back to the District Forum to hear the case afresh on merits in accordance with law.

The opposite parties/petitioners not being satisfied with the order of the State Commission approached the National Commission in revision petition.

This Commission dismissed the revision petition making it clear that nothing observed in the order will tantamount to expression of opinion on merits of

the case except the limitation point. The parties were, thus, relegated back to the District Forum for decision of the dispute afresh on merits.

The District Forum in the second round of litigation, on consideration of the pleadings and the evidence allowed the complaint vide its order dated

29.1.2016 and directed the opposite parties as under: -

“ Hence ordered that the complaint be and the same is allowed on contest against the OPs. OPs are directed to handover the possession of the flat

and car parking space as mentioned in the schedule of the complaint within one month from the date of this order. OPs are also directed to execute

and register the deed of conveyance in favour of the complainant in respect of the flat and car parking space within one month from the date of this

order. In default complainants are at liberty to get the deed registered through this Forum.

OPs are further directed to pay compensation of Rs.30,000/- and litigation cost of Rs.10,000/- to the complainants within one month from the date of

this order, failing which OPs shall have to pay sum of Rs.100/- per day from the date of this order till its realization, as punitive damages, which shall

be deposited by the OPs in this State Consumer Welfare Fund.â€​

The opposite party not being satisfied with the order of the District Forum dated 29.1.2016 approached the State Commission in appeal. The State

Commission vide its order dated 28 th July, 2016 concurred with the finding of the District Forum and dismissed the appeal. Being aggrieved of the

order of dismissal of appeal the petitioners/opposite parties have approached this Commission in revision.

Learned counsel for the petitioners/opposite parties has contended that the impugned order of the Fora below are not sustainable for the reason that

they have not given any finding on the issue pertaining to limitation. It is argued that once the matter was remanded by National Commission to the

District Forum with the direction to decide the complaint afresh, the District Forum was under obligation to decide the issue of limitation also. It is

submitted that neither the District Forum nor the State Commission in the subject orders after the remand of the case have addressed to the issue of

limitation. Learned counsel for the complainants on the contrary has drawn my attention to concluding portion of the para 3 of the order of the

National Commission dated 18 th December, 2015 which is reproduced as under: -

“The revision petition has no merit. The same is hereby dismissed. It is made clear that nothing will tantamount to expression of opinion on the

merits of this case, except the limitation point. The parties are directed to appear before the District Forum as already ordered by the State

Commission.â€​

Learned counsel for the respondents/complainants has contended that from the aforesaid observations it is clear that the issue of limitation was

finally settled and the matter was remanded back only for decision on merits.

I tend to agree with the contention of learned counsel for the complainants/respondents. Perusal of order of the National Commission dated 18 th

December, 2015 would show that while remanding the matter back to the District Forum for decision afresh this Commission observed that nothing

contained in the order will amount to express of opinion on merits of the case except the limitation point. Otherwise also undisputedly, the grievance of

the complainants in the instant case is that the opposite party developer despite of a specific stipulation in the agreement, after having received the

consideration, has failed to deliver the possession of the flat as also to execute the conveyance deed in favour of the complainants. The cause of

action from the allegations in the complaint is obviously failure to deliver possession and execute the conveyance deed which is a continuous cause of

action till the needful is done by the opposite parties. Therefore, I do not find any force in the plea of the opposite parties that the complaint ought to

have been dismissed as barred by limitation.

Secondly, it is contended that the orders of the Fora below are not sustainable because they have failed to appreciate that the actual consideration

amount agreed between the parties was Rs.17,04,000/- and not Rs.10,55,000/- as alleged by the complainants. Expanding on the argument, learned

counsel for the opposite parties submitted that admittedly the complainants had paid sum of Rs.10,55,000/- against the consideration amount which is

less than the agreed amount. Therefore, the opposite parties were justified in not delivering the possession to the complainants. In support of his

contention, learned counsel for the opposite parties has relied upon the copy of the receipt of Rs.2 lakhs dated 21.11.1994.

I do not find merit in the contention of learned counsel for the opposite parties. Clause 3 of the copy of the agreement of sale executed between

the parties reads as under: -

“The promotor shall construct the said building in accordance with the plan and specification sanctioned by sanctioning authority and the purchasers

are going to purchase free from all encumbrances subject to the terms and conditions hereinafter contained the super structure of south-western flat

measuring an area of 1410 sq. ft. on 1 st floor and a covered garage on the ground floor together with undivided impartible proportionate share in the

land and proportionate share in the common area, stair case, entrance at premises No.9A, Raja Basanata Roy Road, Calcutta-700 026 at or for the

consideration of Rs.700/- (rupees seven hundred) only per sq. ft. for the flat and Rs.25,000/- (rupees twenty five thousand) only for the garage. The

purchases with the execution of this agreement have paid a sum of Rs.25,000/- (rupees twenty five thousand) only (the receipt of which the promoter

admit and acknowledges.) The purchasers shall pay the balance consideration money accordance to the fourth schedule hereunder written.â€​

On bare reading of the above it is clear that the agreed consideration amount for the subject flat was 1410 x 700 = Rs.9,87,000/- and the

consideration amount of the covered garage was Rs.25,000/-. Thus, total consideration payable by the complainants was Rs.10,12,000/-. Admittedly,

against the aforesaid payment the complainants have already paid sum of Rs.10,55,000/- but undisputedly opposite parties have failed to deliver

possession of the flat and convey the sale deed in favour of the complainants. So far as the receipt relied upon by the opposite parties is concerned, it

records as under: -

“ Received with thanks from Sri Barin Ghosh & Smt. Moushami Ghosh a sum of Rs.2,00,000/- (rupees two lacs only) by cash against sale of one

three bed roomed residential flat on first floor (road side north-south west open) on account flat size 1460 sq. ft. super built up area, Rate Rs.1150/-

per sq. ft.

For K.K. Estate & Developers Limited

Sd/-

Directorâ€​

On bare reading of the above, it is clear that this is a self-supporting document allegedly signed by the Director of the opposite party No.1

company. The document does not bear the signature of either of the complainants. Therefore, in my opinion, the receipt was rightly not considered by

the Fora below because the said receipt cannot be given preference over and above the registered agreement to sale between the parties.

In view of the reasons stated above, I do not find any fault with the concurrent judgments of the Fora below, which may call for interference in

exercise of revisional jurisdiction. Revision petition is accordingly dismissed.