Judgment:
Mridula Roy, Member.
The instant appeal is directed against the judgement and order dated 26.09.2012 passed by Ld. District Forum, South 24 Pgs. in CC Case No. 186/2012 allowing the petition of complaint exparte against O.P. No. 1 and on contest against the O.P. Nos. 2 and 3 with cost of Rs.5,000/- and directing the O.Ps to execute and register the deed of conveyance within one month from the date of order further directing the O.Ps to pay Rs.70,000/- towards compensation for the harassment and mental agony suffered by the Complainant within one month from the date of order failing which the entire amount of Rs.75,000/- would carry an interest @ 10% per annum from the date of default till realization.
Being aggrieved by and dissatisfied with the said order the O.P. Nos. 2 and 3 i.e. the landowners have preferred the instant appeal stating that the Ld. District Forum erred in arriving at conclusion on the grounds inter alia, that the instant case is barred by limitation since the Complainants “ Respondents received the possession of the flat in question in 2003 and filed the complaint case before the Ld. District Forum in 2009, the dispute cropped up between the parties should have been redressed by arbitration proceeding since there was agreed terms between the parties to that effect.
The case of the Complainants (Respondent Nos. 1 and 2 herein) in brief, is that they entered into an agreement on 14.06.2003 for purchasing a residential flat having about 710 sq. ft. super-built-up area at the ground floor of a proposed multistoried building at Premises No. 326/2, Raja Rammohan Roy Road, Kolkata “ 700008 together with undivided proportionate share of land with the O.P. No. 1 (Respondent No. 3 herein) i.e. the developer and the O.P. Nos. 2 and 3 (Appellants herein) i.e. the landowners signed therein as confirming party. The Complainants paid Rs.5,70,000/- to the O.P. No. 1 and the O.P. No. 1 delivered the possession of the said flat to the Complainants by issuing a possession letter dated 12.07.2003. Subsequently, the Complainants got their names mutated in the Kolkata Municipal Corporation in 2006 in respect of the said flat but the registration of the said flat in favour of them is yet to be done though the entire amount of consideration has been paid. The Complainants requested the O.Ps on several occasions to execute and register the deed of conveyance in favour of them in respect of the said flat but all were in vain. Hence, the Complainants filed the instant case praying for directions upon the O.Ps to execute and register the deed of conveyance in respect of the said flat, to pay Rs.1,00,000/- towards compensation for harassment and mental agony suffered by the Complainants and to pay Rs.30,000/- towards litigation cost.
The O.P. No. 1 did not contest the case and the same proceeded exparte against O.P. No. 1. O.P. Nos. 2 and 3 contested the case and filed Written Version denying and disputing all material allegations stating inter alia, that no consideration was paid to the O.P. “ landowners by the Complainants in respect of the said flat. Further, the O.P. Nos. 2 and 3 stated that the possession of the said flat was delivered to the Complainants on 12.07.2003 but the Complainants filed the complaint case in 2012 and, therefore, the complaint case was very much barred by limitation. The O.P. Nos. 2 and 3 furthermore stated that the Complainants never asked them for registration of deed of conveyance in respect of the said flat so they had no laches on their part for non-registration of the deed of conveyance. Accordingly, the O.P. Nos. 2 and 3 prayed for dismissal of the complaint case with cost.
In course of argument Ld. Advocate for the Appellants has submitted that they entered into development agreement with the developer. However, general power of attorney was executed in favour of the developer but the same was not registered. Ld. Advocate for the Appellants has further submitted that the purchasers never asked them for registration of the flat although they were ready and willing to register the same but the developer has not turned up. Therefore, as the Ld. Advocate for the Appellants has submitted, the Appellants are not liable to pay the cost and compensation to the Complainants and pray for setting aside the impugned order.
None was present for the Respondents.
Having heard the submission made by the Ld. Advocate for the Appellants and perusing the materials on record it appears that the Respondents “ Complainants entered into an agreement for sale with the Respondent “ Developer wherein the Appellants “ landowners put their signatures as confirming party. As per the agreed terms the Respondents “ Complainants paid the consideration to the O.P. “ Developer and the O.P. “ Developer delivered the possession letter to the Complainants as well as delivered physical possession of the said flat to the Complainants on 12.07.2003. The Complainants have been enjoying the said flat since then although the registration of the said flat has not been executed. The Complainants alleged that they repeatedly knocked the door of the O.Ps for registration but it yielded no fruitful result.
The Appellants “ landowners have submitted that no consideration amount was paid to them but it appears from the development agreement executed by and between the parties that the developer was empowered to receive the consideration amount from the intending purchasers. Further, the Appellants have expressed their willingness to execute and register the deed of conveyance in favour of the Respondents “ Complainants.
The Appellants challenged the impugned order on the ground that the complaint case was not entertainable before the Ld. District Forum as it was barred by limitation since the possession of the said flat was delivered in 2003 and the Complainants filed the complaint case in 2012. As regards this issue it appears that the process of sale has not been completed so far since the registration has not been done. Therefore, it is considered to be a continuing cause of action. Further, the Appellants have taken the ground of arbitration clause of the agreement and stated that any dispute cropped up between the parties should be redressed by Arbitration and on the said ground the complaint case was not entertainable before the Ld. District Forum. But, it is settled position of law that mere existence of an arbitration clause in the agreement cannot bar the jurisdiction of the Consumer Disputes Redressal Agency.
However, it appears from the record that the Respondents “ Complainants are in possession of the said flat. But facts remain that the Deed of Conveyance has not been registered so far in favour of the Complainants and for that the Complainants had to suffer a lot.
In view of that we are of opinion that there is no ground to inferfere with the impugned judgement and order.
In the result, the appeal fails.
Hence, ordered that the appeal is dismissed but without any order as to costs. The impugned judgement is affirmed.