Siddhartha De Sikdar And Ors. vs Ramesh Chandra Basak And Ors.

PRESENT revision petition has been filed under Section 21(b) of Consumer Protection Act, 1986 (for short, ''Act'') challenging order dated 9.9.2014 passed by State Consumer Disputes Redressal Commission, West Bengal, Kolkata (for ''State Commission'') in F.A. No. 265 of 2013. Brief facts are that Respondent No. 1/Complainant entered into an agreement with the Petitioners on 25.11.1998 for purchase of flat No. B/2 measuring about 650 sq. ft. on the second floor of the building for a consideration of Rs. 4,50,000 and paid Rs. 3,40,000. It is stated that possession of the flat was handed over to him on 9.10.2001. During the proceedings, one of the said owners, Shri Shib Kinkar Dey Sikdar, died intestate on 14.11.2002 leaving behind Siddharth Dey Sikdar and Mina Dey Sikdar, Petitioner Nos. 1 and 2. It is alleged by Respondent No. 1, that he requested the petitioners and other respondents to execute and register the deed of conveyance on receiving the balance money. Accordingly, he prepared the deed of conveyance along with the stamp papers but without assigning any reason, they neglected and refused to execute the deed of conveyance. Hence, this case.

BEFORE the District Forum, petitioners and other respondents, neither appeared nor contested the case by filing written objections, despite service of notice. Accordingly, they were proceeded ex parte. District Consumer Disputes Redressal Forum, Kolkata Unit -II (for short, ''District Forum'') allowed the complaint, ex parte with cost passing following directions: "The OPs are jointly and severally directed to execute and register the deed of conveyance in respect of the flat in favour of the complainant on receiving the balance consideration money of Rs. 1,10,000 (Rupees one lakh ten thousand only) from the complainant as per the agreement for sale within 30 (thirty) days from the date of the order, failing which, the complainant is at liberty to execute the order as per provisions of law. The registration cost will be borne by the complainant.

The OPs are jointly and severally directed to pay Rs. 2,000 (Rupees two thousand only) to the complainant towards litigation cost and Rs. 5,000 (Rupees five thousand only) as compensation within a period of 30 (thirty) days from this date."

BEING aggrieved, only petitioners filed appeal before the State Commission, which vide impugned order dismissed the appeal.

HENCE , the present revision petition. I have heard the learned Counsel for the petitioners and gone through the record.

IT is submitted by learned Counsel for the petitioners that the complaint case was filed after 12 years of the execution of the agreement to sale, as such it is absolutely barred by limitation. Further, the agreement to sale is not enforceable against the present petitioners, as the developers had no authority to enter into agreement on behalf of predecessor -interest of the petitioners.

STATE Commission in its impugned order has observed: "The Proforma Respondent No. 6 has filed BNA contending, inter alia, that he is one of the partners of M/s. S.P. Associates. It has been stated that Respondent No. 1/Complainant entered into agreement for sale to purchase Fiat No. B -2 on the 2nd floor, measuring about 650 sq. ft. But the Developer was not authorized by registered power, of attorney to transfer the fiats. It has been stated that M/s. S.P. Associates through its representative was always ready to execute and register the deed of conveyance in favour of Respondent No. 1 and the Proforma Respondent No. 6 was also willing to register the deed of conveyance. It has been stated that the Appellant Nos. 1 and 2 and Proforma Respondent Nos. 2 and 4 are trying to delay the proceedings in the matter of execution and registration of the deed of conveyance.

We have heard the submissions made by both sides and perused the papers on record. Admittedly, the complainant entered into an agreement with the OPs of the complaint for the purchase of the flat. Possession has been delivered to the complainant, but the OPs of the complaint are not executing and registering the deed of conveyance. In view of the circumstances stated by the Proforma Respondent No. 6, we are of the considered view that some of the OPs of the complaint are willing to execute and register the deed, but the present Appellants and the Proforma Respondents No. 2 and 4 are trying to delay the proceedings. Under the circumstances, we are of the view that there is no merit in this Appeal. The Learned District Forum was justified in passing the impugned judgment and order.

The Appeal is dismissed. The impugned judgment is affirmed."

Since, the petitioners who are opposite parties before the District Forum were ex parte, thus, they have no defence on merit.

BE that as it may, petitioners have nowhere stated in their appeal before the State Commission as to on which date they got the knowledge of the order passed by the District Forum. In the grounds of appeal, petitioners have taken the plea, that Petitioner No. 1 came to know about the proceedings initiated by the respondent/complainant before the District Forum, accidentally, when he came to see his ailing paternal uncle at the residence of the latter. However, no date of knowledge has been mentioned by the petitioner at all.

SECONDLY , the agreement for sale was executed, between the predecessor interest of the petitioners, developer and the complainant and copy of the same has been placed on record. Thirdly, there is no rebuttal to the statement of the complainant, that he had paid amount of flat in question and was handed over the possession of the flat on 9.10.2001. After handing over the possession of the flat to the complainant it was the duty of petitioners and other respondents to execute to conveyance deed, in favour of the complainant. Since, the conveyance deed had not been executed or registered in favour of the complainant, it is a continuous cause of action. Therefore, the complaint is within time.

IT is well settled that under Section 21(b) of the Act, scope of revisional jurisdiction is very limited. Under Section 21 of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

HON ''ble Supreme Court in Mrs. Rubi (Chandra) Dutta v. United India Insurance Company, : 2011 (3) Scale 654, has observed: "Also, it is to he noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two Fora."

Under such circumstances, I do not find any infirmity or illegality in the impugned order passed by the State Commission. Accordingly, present revision petition stand dismissed with cost of Rs. 10,000 (Rupees ten thousand only).

PETITIONERS are directed to deposit the cost by way of demand draft in the name ''Consumer Legal Aid Account'' of this Commission, within four weeks from today.

IN case, petitioners fail to deposit the cost within the prescribed period, then they shall be liable to pay interest @ 9% p.a., till realization. List for compliance on 13.3.2015.