NATIONAL
CONSUMER DISPUTES REDRESSAL COMMISSION
NEW
DELHI
FIRST
APPEAL NO. 254 OF 2013
(Against the order dated 14.02.2013 in S.C. Case
No.CC/94/2010 of the State Commission,
West Bengal)
M/s.
Vivekanand Construction Company
At
Phase -4, Block-6, 493/C/A,
G.T.
Road (South),
Howrah
-2 West Bengal
……….Appellant
Versus
1. Suraj Ratan Mundra
At Flat No.303
C, Block- Back (rare)
At Devangan
Apartment, 176, Bidhan Sarani,
Kolkata- 700
006
2. Kailash
Undra
At Flat No.303
C, Block-Back (rare)
At Devangan
Apartment 176, Bidhan Sarani,
Kolkata- 700
006.
.........Respondents
BEFORE
HON’BLE
MR. VINAY KUMAR, PRESIDING MEMBER
For the Appellant :
Mr.Dipak Kr. Jena & Mr. Yatharth Nautiyal
Advocates
PRONOUNCED ON: 17 May
2013
ORDER
PER MR.VINAY KUMAR, PRESIDING
MEMBER
This appeal is filed against the order of West Bengal State
Consumer Disputes Redressal Commission in CC/94/2010 in which complaint of the
present respondents has been allowed.
2. The case of the Complainants is that they
have purchased a flat from the Appellant /OP and were put in possession of the
same in 1999. But, despite payment of
full agreed price and repeated reminders, the OP did not register the sale deed
in their favour, until the filing the complaint on 13.12.2010. In this background the State Commission, in
its order of 14.2.2013, has directed the appellant/OP to execute and register
the deed of conveyance within 45 days.
The Commission has also awarded compensation of Rs.3 lakhs.
3. De hors the claim of the complainants, the
plea of the Appellant /OP before the State Commission was that-
“the
opp. Party completed the flat and issued possession letter on 21.04.99 and
requested the opp. Party for registration of the documents but the petitioner
was not interested to register the documents for the purpose of squeezing money
from the Opp. Party. It is submitted
that the Opp. Party requested the petitioner for making arrangement for
registration and paying cost of registration including stamp duty and other
requires so that the Opp. Party can execute the documents before the Calcutta
Registration office but the petitioner did not pay any heed to it nor given any
response.” The State Commission did not accept
this plea and held that- “There is practically no tangible answer on
the part of the OP as to what caused such abnormal delay in execution and
registration of the deed in question, which, in our opinion, tantamounts to
deficiency in service”
4. We have
carefully perused the records of the appeal and heard Mr. Dipak Kumar Jena,
Advocate on behalf of the appellant.
5. As is evident
from the record, the flat had not been registered in the name of the
Complainants for almost 10 years from the date of possession till 13.12.2012, when
the jurisdiction of the State Commission was invoked. The observation of the
State Commission that there was no answer on the part of the OP as to what
caused this abnormal delay in execution of the deed of conveyance was put to
the appellant counsel. Learned counsel
admitted that no documentary evidence in this behalf had been placed before the
State Commission. Only oral submissions
had been made to the effect that the efforts made by the Appellant/OP to get
the sale deed registered were frustrated by non-cooperation of the
respondent/Complainant. It is therefore, clear that no evidence of any value
was adduced before the State Commission in support this contention.
6. The appeal
petition, as well as the arguments of the counsel for the appellant, have both
laid considerable stress on the fact that the consumer complaint was filed
nearly 10 years after the admitted date of possession of the flat. It is argued
that if the cause of action arose on 21.4.1999, i.e. the date of possession,
the complaint would become inadmissible on the ground of delay. On this point, the case of the Complaints, as
seen from para 13 of the complaint before the State Commission was that:-
“That the cause of action of this
case arose on 21.04.1999 being the date of giving possession of the flat in
question by the opposite party and further on 16.05.2008 being the date of
issuance of first legal notice through S.G. Muskara and then on 17,09,2010
being the date of last legal notice through Barun Prasad, advocate and denial
to execute the deed of conveyance of the flat by the opposite party the same is
continuing till date.”
The only response to this in the pleadings of the
appellant/OP before the State Commission was a bland denial that the cause of
action arose on 21.4.1999 and that it arose again on subsequent dates of legal
notices.
7. Learned counsel
for the appellant has sought to rely upon the decision in Haryana Urban Development Authority Vs. B.K., Sood, (2006) 1 SCC 164. In this matter, the complaint before the State Commission was filed 10 years after
taking possession of the bhattis and 8 years after the cause for alleged damage
had commenced. But, there was not even a prayer to condone the delay. Hon’ble Supreme Court observed that the
National Commission had proceeded on an incorrect factual basis that the
bhattis had been removed during the pendency of the appeal before it. This finding was held to be contrary to the
records as the offending bhattis had already been removed, three years before
the consumer complaint was filed.
8. On comparison,
facts of the present case are found to be very different. The case of the Complainants, as already
observed, was that the cause of action began with the possession of the flat in
1999 and continued till the filing of the complaint, due to non-registration of
the conveyance deed for the same.
Therefore, in my view the decision relied upon by the appellant will not
come to his rescue. Moreover, the plea
of continuing cause of action was not challenged before the State Commission.
9. In Lata Construction and others Vs.
Dr.Rameshchandra Ramniklal Shah and another, (2000) 1 SCC 586, the question
of ‘continuing cause of action’ arose directly for consideration before the
Supreme Court of India. The case of the
Complainant was that under a written agreement of 27.1.1987 the
builder-developer had promised to provide a flat but had failed to do so. This agreement contemplated that Lata
Construction would construct and hand over a flat on the ground floor. This was not done. However, the two sides entered into a fresh
agreement on 23.2.1991 in which the builder agreed to pay the Complainant
Rs.9.51 lakhs in lieu of the flat.
Hon’ble Suprme Court held that:-
“4. A perusal of the agreement dated 23-2-1991
would show that it was specifically stipulated therein that the rights under
the agreement dated 27-1-1987 would remain unaffected. It was for this reason that in the claim
petition filed before the Commission, it was clearly mentioned that their
rights under the agreement dated 27-1-1987 as also those under the agreement
dated 23-2-1991 may be enforced. It was
also specifically mentioned in the second agreement that the first agreement of
1987 would be treated as terminated only on fully payment of the stipulated
amount of Rs.9,51,000 to the respondents.
Since the rights under the agreement of 1987 had not been given up and
the appellants were constantly under an obligation to provide a flat to the
respondents and deliver possession thereof to them, the Commission rightly treated
“cause of action” to be a “continuing cause of action” and came to the right
conclusion that the claim was not beyond time.”
10. The law laid
down above on continuing cause if action, applies equally to the present case.
The sale of the flat to the respondent/ complainant, receipt of the agreed
price by the vendor/appellant and physical delivery of the flat by the
vendor/OP to the purchaser/Complainant, are facts established on the record.
While the appellant has failed to prove that the respondent was responsible for
the delay, non execution of the conveyance deed remains an admitted fact. More
than anyone else, the appellant, being a construction company, should know that
sale of a flat is completed with registration of the sale deed and not with mere
transfer of physical possession. Clearly, the cause of action, which began with
delivery of physical possession, continues till the deed of conveyance is
registered. Therefore, the question of limitation does not arise.
11. In the above
background, I find no substance in the grounds of appeal against the impugned
order. The appeal is therefore dismissed and the order of the West Bengal State
Consumer Disputes Redressal Commission in Consumer Complaint No CC/94/2010 is
confirmed. No orders as to costs.
.……………Sd/-……………
(VINAY KUMAR)
PRESIDING MEMBER
s./-
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