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PANKAJ KUMAR BANERJEE V/S DEBJANI CHAKROBARTY & OTHERS, decided on Friday, August 4, 2017.
[ In the National Consumer Disputes Redressal Commission (NCDRC), First Appeal No. 1535 of 2017. ] 04/08/2017
Judge(s) : AJIT BHARIHOKE, PRESIDING MEMBER & ANUP K THAKUR, MEMBER
Advocate(s) : Gaurav Bhardwaj.
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    This appeal is directed against the order of the State Commission West Bengal dated 29.11.2016 in CC/169/2012 whereby the State Commission has allowed the consumer complaint filed by the respondent and directed the appellant as under: -“It is accordingly ordered that the instant complaint is allowed on contest in part against the opposite partyNo.1 developer with cost of Rs.10 000/- with a direction upon the OP No.1 to refund Rs.10 00 000/- and to pay compensation amount of Rs.10 00 000/- to the complainants within 30 days from the date. The complaint is dismissed against the rest of the OPs without any order as to costs.The OP No.1 developer is directed to make the entire payment of Rs.20 10 000/-to the complainants within one month from this date otherwise the amount shall carry interest @ 12% per annum from today till its full realization.The Registrar of this Commission is directed to send a copy of this judgment to the OP No.1 forthwith for information and compliance.”2. The appeal however has been filed after the expiry of 30 days period of limitation provided for filing the appeal with a delay of 199 days as per the appellant. The appellant therefore has moved IA/10735/2017 for condonation of delay. As per the allegations in the application the appellant got certified copy of the order on 1.12.2016. The appeal has been filed on 20.7.2017. Obviously there is delay of 199 days. Only explanation given by the appellant for delay in filing of the appeal is that he is an old man suffering from Osteoarthritis as a result of which it was very difficult for him to walk properly. Besides the appellant was also suffering from hyperglycemia which prevented him from filing the appeal in time. In support of the explanation a medical certificate issued by Dr. Debjani Chatterjee dated 17.6.2017 has been filed. The certificate reads as under: -“This is to certify that Sri Pankaj Kumar Banerjee aged 74 years (date of birth 01.04.1944) is suffering from Hyperglycemia from January 2017. His blood sugar level was fluctuating very much. He is also suffering from osteoarthritis right knee. He was advised rest & avoid stress & strain. Now his blood sugar level is under control.”Sd/Regd. No.40972”3. We are not inclined to accept this medical certificate more so for the reason that it is not supported by any medical record which could prove that the appellant was under the treatment of Dr. Debjani Chatterjee from January 2017 till the date of issue of the certificate. Thus in our view there is no cogent explanation to explain the delay.4. Even on merits we may note that as per the record the respondent/complainant entered into a builder buyer agreement with the complainant on 8.6.2009 and against the agreed consideration amount the complainant had paid a sum of Rs.10 lakhs in three installments during the period w.e.f. 8.6.2009 to 17.5.2010. It is admitted case of the parties that till date the flat in question is not ready. The appellant has been enjoying the money paid by the complainant for almost seven years without performing his part of contract till delivering the possession of the flat.5. Learned counsel for the appellant has tried to explain the delay by referring to the agreement between the appellant and the owner of the subject plots particularly clauses 3 (iii) & (iv) and clause 4 (v) in three similar agreements between the plot owners and the appellant developers. The relevant clauses are reproduced as under: -“iii. To vacate the portion of the premises which is in his personal use and occupation and deliver vacant possession thereof within a month from the date of receiving intimation from the developer that the plan has been sanctioned by Kolkata Municipal Corporation.iv. To execute a notarized general power of attorney in favour of the developers or his nominee empowering and authorizing him to represent him wherever and whenever required and to do all acts and things and take necessary steps as may be required to amalgamate the said three premises to get the plan sanctioned for construction of the proposed new building to construct and complete the proposed new building and to implement this agreement and also register power of attorney to sell the share of allocation in the new building to get consideration from buyers and tenants and register the deed conveyance of the buyers on behalf of the owners.4 ((v) To negotiate with the tenants of the said premises and make them agree to vacate the said premises on which terms and conditions as he may decide according to his discretion. The owner will cooperate on the said matter if required.”6. Learned counsel has submitted that because the tenants in the premises did not vacate their portions in the building the appellant was prevented from completing the construction or even the amalgamation of the plots. It is contended that even the complainant was aware of the aforesaid agreements. In this regard he has referred to a tripartite agreement executed between the plot owners the developers who is described as vendor and the complainant. The relevant clause of the agreement relied upon by the appellant is clause 4 which is reproduced as under: -“The vendor hereby agree and undertake to construct and allot the said proposed flat to be allotted to the purchaser in terms of this agreement within a period of 36 months from the date of sanction of plan hereby provided the vendor is not prevented from doing construction by any order of Court Municipal Corporation or reasons beyond his control.”7. From the above clause the appellant is suggesting that we draw a presumption that the complainant was aware that the promise of the developer was subject to fulfilment of the above-noted conditions in the agreement between the developer and the plot owners. There is no merit in this contention for the reason that counsel for the appellant has failed to show us any evidence which could show that the above referred clause were shown and explained to the complainant while receiving the part consideration amount. Even if for the sake of argument it is assumed that the developer was prevented from getting the plots amalgamated and raise construction then also equity demanded that the developer should have returned the consideration amount received from the complainant but it is not the case. The complainant cannot be made to suffer just because the agreement between the plot owner and the developer cannot be given effect to. Thus under the circumstances even on merits we do not find any flaw in the order of the State Commission.8. In view of the discussion above we dismiss the appeal as barred by limitation as well as on merits.