DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS ,

AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

      C.C. CASE NO.90_ OF ___2015

DATE OF FILING : 20.2.2015         DATE OF PASSING JUDGEMENT:  11.01.2018

Present                        :   President       :   Ananta Kumar Kapri

                                        Member(s)    :     Subrata Sarker  & Jhunu Prasad

COMPLAINANT/s           :  Smt. Rama Sengupta, w/o Sri Shyamal Sengupta of 13A, Santoshpur East Road, P.S Survey Park, Kolkata – 75.

-VERSUS  -

O.P/O.Ps                            :  1.  Manika Nandy,w/o Sri Ranjit Nandy of Manika Apartment (2^nd Floor), 425/B, Mahatma Gandhi Road, P.O Haridevpur, P.S Haridevpur, Kolkata – 82.

                                             2. M/s Bharat Ma Housing Associates, at 63, Karunamoyee Ghat Road, P.S Haridevpur, Kolkata and also office at ), 425/B, Mahatma Gandhi Road, P.O Haridevpur, P.S Haridevpur, Kolkata – 82

                                           a)    Smt. Bharati Bose, w/o Ashis Bose of 6F, Chander Village Road, P.S Haridevpur, Kolkata – 82.

                                           b)   Sri Kamal Saha, s/o Sri Radhyeshyam Saha of Talbagan, P.O Purba Putiary, P.S Haridevpur, Kolkata – 93.

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                                                            J  U  D  G  E  M  E  N  T

Sri Ananta Kumar  Kapri, President

     This is a complaint filed under section 12 of the C.P Act, 1986 by the complainant as named above, alleging deficiency in service on the part of the O.P-1.

     The facts of the complaint leading to filing of the instant case may be epitomized as follows.

     The O.P-1   is the land owner and O.P nos. 2a and 2b are the developers. One Development Agreement between the O.P-1 and the said developers was executed on 18.10.1998. Notarised General Power of Attorney was executed on 11.1.1999 by O.P-1 in favour of the developers as aforesaid. The developers, in pursuance of the terms of the agreement completed the construction of flats in all respect. Thereafter, the developer i.e O.P-2 sold the portion of car parking space as it is alleged in the complaint to the complainant for a consideration of Rs.2,20,000/-  and in pursuance of that agreement, an un-registered sale deed was also executed by the O.P-2 on 12.2.2001 . Consideration money was also paid by the complainant to the O.P-2 and physical possession of the car parking space i.e the schedule property was also delivered to the complainant. Immediately after the aforesaid purchase, the complainant converted the car parking space ,so purchased from O.P-2, into a residential house at her own cost. Electric connection was also taken to that premises by the complainant. The complainant requested the O.P-1 and also the developers to execute and register the sale deed in her favour but all requests of the complainant fell in deaf ears of O.P-1 and the developers. Therefore, the complainant has come up before this Forum with filing of the instant case praying for passing an order directing all the O.Ps to execute and register the sale deed, to pay Rs.50,000/- towards enhancement of stamp duty and registration fees for registration of the deed of conveyance in favour of the complainant and also to pay Rs.50,000/- as compensation for mental agony and harassment . Hence, this case.

      O.P-1 has been contesting the case by filing written statement of his own, wherein it is contended inter alia that the development agreement which was executed by her in favour of the developers has been cancelled long before the execution of the agreement between the complainant and the O.P-2. According to her, the possession of car parking space was never delivered to the complainant. Her further case is that one Uma Sengupta who was the sister of the complainant was posted to render the service of caretaker in the suit building and she was allowed to stay on the car parking space in a temporary shade. Her brother and sister thereafter came to reside with Uma Sengupta and thus they in collusion with the complainant has made an attempt to grab the property i.e the car parking space of O.P-1 by having raised an unlawful construction over the said car parking space. A Title Suit bearing T.S no. 20275 of 2014 in the 5^th Court of Civil Judge, Jr. Division at Alipore praying for recovery of possession, damage and injunction etc. and that the said suit is still pending before the aforesaid Court. So, according to her, this case is not maintainable in law and , therefore, it should be dismissed in limini with cost.

       The O.P nos. 2 and 3 have also filed a joint written statement wherein it is contended by them that the case is barred by laws of limitation. According to them, the sale as alleged by the complainant in respect of car parking space was made on 12.2.2001 and since then, the O.P-1 and the developers have persistently showed their reluctance/inability to get the sale deed registered in favour of the complainant in respect of the car parking space. But the complainant has maintained silence for about 14 years . She has not brought any complaint either before the Consumer Forum or before any Court of Law. So, according to them the instant case is barred by limitation.

      It is also averred by them in the written statement that the conversion of car parking space into a residential flat without taking permission from the concerned municipality is blatantly unlawful and illegal and, therefore, the complainant is not entitled to get the reliefs as prayed for herein.

     Upon the averments of both sides, the following issues are formulated for proper adjudication of the case at hand.

ISSUES

1. Is the case maintainable in law?
2. Is the case barred by limitation ?
3. Is the complainant entitled to get the relif as prayed for?

EVIDENCES OF THE PARTIES

     The complainant has filed affidavit-in-chief and she has been cross-examined by the O.Ps by way of submission of questionnaire. Reply given to the questionnaire is kept in the record along with other papers. Similarly ,the O.P-1 and also O.P nos. 2 and 3 have also put in affidavits-in-chief and the cross-examination of them has also been conducted in the manner as aforesaid.

     The documents filed by the parties are also kept in the record.

DECISION WITH REASONS

     Issue no. 1:

     It is to be considered now whether the case is maintainable before this Forum. It is well established law that a case becomes never maintainable before this Forum unless there is inter alia an allegation of deficiency in service made out in the face of the complaint filed by the complainant.

     It is the case of the complainant that she purchased the schedule property which is a car parking space in the building constructed by the developers from O.P-2 , one of the developers and thereafter she raised construction on her own. It is not the case of the complainant that the developers i.e O.P-2 and/or O.P-1 made any promise to extend services of any kind to the complainant. It is the case of a sale simpliciter and no contract of service is involved with this kind of sale. This being so, this case appears to be not lawfully maintainable before this Forum and the proper remedy ,if any of the complainant, lies anywhere before any other Forum.

     That apart, a Title Suit has been filed by the O.P-1 in respect of the instant schedule property i.e the car parking space before the Court of Ld. Civil Judge, Jr. Division ,5^th Court at Alipore for recovery of possession, damage , injunction etc. It is not denied by the complainant that such a suit has been filed before the Ld. Civil Judge ,Jr. Division, Alipore. That apart, the O.P-1 has also categorically made it clear in the Brief Notes of Argument (BNA) filed by her that the complainant has also filed an application in that suit for being added as a party to that suit. The said application is pending for disposal as yet. It is further found on scrutiny that the Civil Suit as referred to above has been filed on 19.9.2014 i.e before the filing of the instant case. The instant case is filed on 20.2.2015. So, in our considered opinion, when the matter is subjudice before a Civil Court, that matter cannot be properly and effectively dealt with by this Forum and as such the instant case also appears to be not maintainable in law.

    Hence, this issue is answered against the complainant after careful consideration of the facts and circumstances of the case as evidenced by the documents filed on behalf of the parties.

     Issue no.2:-

      Now, to see whether the case also stands barred by limitation or not.

      It is the case of the complainant that  she purchased a car parking space about 14 years before the filing of the instant case i.e on 12.2.2001. Since then, she has been repeatedly requesting the O.P-1 to execute and register the sale deed in her favour. But O.P-1 has not executed the sale deed. When the repeated requests of the complainant has not been gratified by the O.P-1, we find no difficulty to hold that such requests of the complainant has been turned down by the O.P-1 and whenever the requests of the complainants have been turned down by the O.P-1, the cause of action started to arise at that very time  i.e about 14 years ago from the date of filing the instant case. For long 14 years the complainant maintained the grave silence. She has not taken any step to compel the O.P-1 to execute and register the sale deed in her favour.

     Be that as it may, we feel constrained to say that the instant complaint is not filed within two years of the date of cause of action and, therefore, this complaint appears to be barred by limitation.

   Thus, this issue is answered against the complainant.

    Issue no.3:

     Upon what have been discussed above, it is found that the complainant is not entitled to any relief in the case.

     Hence, this issue is also answered against the complainant.

    Hence,

                                                ORDERED

    That the instant complaint case be and the same is dismissed on contest against the O.Ps but without cost.

Let a free copy of this order be given to the parties concerned at once.

Dictated and corrected by me

                                                                                                                        President

We / I    agree.

                     Member                                      Member