DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C. CASE NO. 19 OF 2019
DATE OF FILING: 4.2.2019 DATE OF JUDGEMENT: 11.9.2019
Present : President : Ananta Kumar Kapri
Member : Jhunu Prasad
COMPLAINANT : Dr. Shyamal Kumar Das,son of Mukti Nath Das at Subhash Nagar Uttar.Ward no.4, Chakdaha, P.O & P.S Chakdaha, Nadia,Pin-741222.
O.P/O.Ps : 1. The Director(s), Brainer Infra LLP., at 102, Jay Sree Gajanan Apartment, Opp. To Infant Jesus School, Chincholi Bunder Road, Malad West, Mumbai 400064.
2. Mr. Sanjeev Chakraborty, Body Corporate DP Nominee & Director, Brainer Infra LLP., Dowark Shree Krishna Garden, Flat no.10B, 1/1, Raja R.L Mitra Road, P.O Beliaghata, Kolkata-70008.
3. The owner, Roopkatha Housing Project RCBS Realty Pvt. Ltd. G-158, Rajdanga Road, Kolkata-`107, site office at Ram Nagar, P.O & P.S Baruipur, Kolkata-144.
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JUDGMENT
Sri Ananta Kumar Kapri, President
Facts leading to the filing of the instant case may be epitomized as follows.
A sale agreement was made between the complainant and the O.P developers i.e O.P-1 and O.P-2 on 25.11.2017 and thereby the O.P developers agreed to sell a self contained flat to the complainant after having the same constructed within the stipulated period as mentioned in the agreement for a total consideration price of Rs.13,94,720/- . Allotment letter was also issued by the developers in favour of the complainant on 25.11.2017. It was agreed between the parties that the project work would be completed by the developers within 42 months from the date of allotment letter i.e 25.11.2017. The complainant paid Rs.3,32,882/- as earnest money to the developers. Now, the complainant has come up before this Forum with the filing of the instant case, alleging that the developer has done no development work , nor any construction on the subject land and ,therefore, he has prayed for refund of the consideration price i.e Rs.3,32,882/- from the developers along with compensation. Hence, this case.
O.P nos.1,3 have not filed any written version to contest the case and, therefore, the case proceeds exparte against them.
It is O.P-2 who has filed written version to contest herein and it is contended by him in the written version that he is the owner of the land and he has no liability whatsoever towards the complainant in so far as the project of the developers is concerned. The case is not maintainable against him, as goes the version of the O.P-2. The further averment of the O.P-2 is that the case is not maintainable as there has arisen no cause of action in favour of the complainant.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Is the case maintainable in law?
- Are the O.Ps guilty of deficiency in service as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs, if any, as prayed for?
EVIDENCE OF THE PARTIES
The contesting parties have filed evidence on affidavit and the same are kept in the record after consideration. No BNA is filed by the parties.
DECISION WITH REASONS
Point no.1 :
Now to see whether the instant case is at all maintainable in law against the O.Ps.
Ld. Lawyer ,appearing for the contesting O.P has contended that the developer agreed to complete the project within 42 months from the date of allotment letter i.e 25.11.2017. The project date is yet to be expired. There is still a long time left n the hands of the developer to complete the project. But, before completion of the project period, the instant case is filed by the complainant and, therefore, there has arisen no cause of action in favour of the complainant and as such the instant complaint is not maintainable in law.
Ld. Lawyer appearing for the complainant has not been able to give any satisfactory explanation to the contention as advanced on behalf of the contesting O.P.
On perusal of the sale agreement, it is found that the project work was to be completed within 42 months from the date of allotment letter i.e 25.11.2017. If this be so, the project period extends up to May, 2021. There is a lot of time in the hands of the developers to complete the project work. But, before expiry of the said period, the complainant has filed the instant case, alleging negligence on the part of the developers to complete the project work. The case is filed on 4.2.2019. Regards being had to all these, we do say that no cause of action has arisen for filing the instant case by the complainant, as the project period is yet to be expired. Unless the project period expire , there arises no cause of action in favour of the complainant and, therefore, the complainant is not entitled to institute the instant case , alleging deficiency in service on the part of the developers . The case is, therefore, not maintainable in law.
Hence, this point is answered against the complainant.
Point no.2 & 3 :
Upon what have been discussed above in point no.1, the complainant is not entitled to get any relief or reliefs in this case. The case deserves to be dismissed.
In the result, the case fails.
Hence,
ORDERED
That the complaint case be and the same is dismissed on contest against the O.P-2 and exparte against the rest of the O.Ps .
There is no order passed as to the cost of the proceedings ,considering the facts and circumstances of the case.
Registrar-In-Charge of this Forum is directed to send a copy of the judgment free of cost at once to the parties concerned by speed post.
President
I / We agree
Member
Dictated and corrected by me
President
