HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This consumer complaint case has been filed by the complainant under section 49 of the Consumer Protection Act, 2019 (in short, ‘the Act’) alleging deficiency in service and unfair trade practice adopted by the opposite party.

2. The complainant has filed this consumer complaint case praying for the following reliefs :-

          “i) To issue notice upon the opposite party to show cause as to why the matter shall not be allowed and adjudicated and to direct the opposite party to complete the unfinished works immediately and to pay the unpaid amount due to your petitioner as mentioned and settled in the aforesaid Joint Venture Development Agreement dated 11.03.2012 amounting to Rs.25,000/- (Rupees Twenty Five Thousand) only and compensation to the tune of Rs.50,000/- (Rupees Fifty Thousand) only per month from 11^th September, 2013 till filing of the instant case, i.e., 119 months amounting to Rs.59,50,000/- (Rupees Fifty Nine Lakh and Fifty Thousand) only and from further date of filing to completion of the work of the ‘B’ Schedule property as per order of the Ld. Court and the additional court fees be paid as per Rule along with cost of the proceeding amounting to Rs.50,000/-, i.e., in all Rs.60,25,000/- and to pass such further order or orders as Your Honour may deem fit and proper.”

3. Heard the Learned Advocate appearing for the complainant at length and in full on the point of admission.

4. We have carefully perused the complaint case wherefrom it appears to us that the complainant purchased about 2 cottahs, 00 chhitaks and 10 Sq. ft., more or less, with structure standing thereon lying and situated under Mouza Kasba, Khatian No. 16, Dag No. 3045, J.L. No. 13, Touzi No. 56, within the limits of Kolkata Municipal Corporation, being Premises No. 57C, Ashutosh Colony, P.S. formerly  Kasba now Garfa, Kolkata – 700 078, District South 24 Parganas by virtue of a registered deed of  conveyance dated 23.09.2009.

5. After purchase, the complainant entered into a Joint Venture Agreement on 11.03.2012 with the opposite party for the development of his land situated at Kolkata Municipal Corporation premises No. 57C, Ashutosh Colony, P.S. Garfa, Kolkata – 700 078 and also executed a registered General Power  of Attorney in favour of the opposite party. As per the terms of the said agreement, the opposite party was supposed to hand over the owner’s allocation mentioned in the said Joint Venture Agreement of the complainant within 18 months from signing of the agreement i.e. September, 2013.

6. The petitioner / complainant earlier got a sanctioned plan from the Building Development Deptt. of the Kolkata Municipal Corporation for construction of a building in the aforesaid premises of the complainant. The opposite party started construction of the proposed building at the aforesaid premises of the complainant as per the terms of the agreement dated 11.03.2012. Even after the expiry of the schedule time as mentioned in the said agreement dated 11.03.2012 there were incomplete works of the project. The building was / is in incomplete and inhabitable condition. As such, the complainant issued several notices to the opposite party requesting him to complete the works and for making payment of unpaid amount of the monetary due of the Owner’s Allocation as mentioned in the Joint Venture Development Agreement dated 11.03.2012 but the opposite party did not take any step to complete the unfinished work. Hence, this case.

7. The complainant has clearly and categorically stated in para No. 20 of the petition of complaint that the cause of action in the instant case arose on 10.09.2013, i.e. the date on which 18 months period as mentioned in the aforesaid Joint Venture Development Agreement dated 11.03.2012 expired and series of notices issued and lastly on 17.03.2023 when the complainant issued legal notice to the opposite party for completion of the pending works as mentioned in the ‘B’ Schedule property. The cause of action is continuing day to day at Premises No.  57C, Ashutosh Colony, P.S. Garfa, Kolkata – 700 078.

8. This complaint was filed on 12.08.2023 and it was proved on 24.08.2023. Hard copy of the petition of complaint was filed on 13.10.2023. This fact clearly proves that after ten years from the cause of action arose this case was filed. The complainant has filed this complaint before this Commission which is not legally permitted in view of the Consumer Protection Act, 2019. Section 69 of the Consumer Protection Act, 2019 runs as follows :-

“69. (1) The District Commission, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Commission, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the District Commission or the State Commission or the National Commission, as the case may be, records its reasons for condoning such delay.”

9. From the aforesaid provision it appears that the provision is peremptory in nature requiring the Consumer Commission to examine before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Commission, however, for the reasons to be recorded in writing may condone the delay in filing the complaint, if sufficient cause is shown.

10. On careful perusal of the record it appears to us that this complaint has not been filed in time. There is a delay in filing the petition of complaint by the complainant. To condone the delay, the complainant has filed an application under section 69 of the Consumer Protection Act, 2019.

11. In the application under section 69 of the Consumer Protection Act, 2019, the complainant has clearly and categorically stated that the complainant had to suffer various calamities and faced medical emergencies within his family for a period from 22.06.2015 to 17.02.2023 as both his parents are octogenarian citizens and suffering from various diseases. This fact clearly proves that the complainant was quite well and that he was not suffering in the above mentioned period. The explanation as given by the complainant in filing the petition of complaint is not convincing and satisfactory.  Therefore, it may be concluded that the delay in filing the appeal has not been explained properly by the complainant.

12. At the time of hearing on the point of admission, the Learned Advocate appearing for the complainant has submitted that several correspondences were made to the opposite party requesting him to complete the unfinished works and for making payment of the unpaid amount. But the opposite party did not complete the unfinished works and did not pay the unpaid amount due to the complainant. We fail to accept the contention made by the Learned Lawyer appearing for the complainant.

13. The Hon’ble Supreme Court in State of Tripura & Ors. Vs. Arabinda Chakraborty & Ors., reported at (2014) 6 SCC 460 has held the following :-

“10. In our opinion, the suit was hopelessly barred by law of limitation. Simply by making a representation, when there is no statutory provision or there is no statutory appeal provided, the period of limitation would not get extended. The law does not permit extension of period of limitation by mere filing of a representation. A person may go on making representations for years and in such an event the period of limitation would not commence from the date on which the last representation is decided.........”

14. The Hon’ble National Commission in Mahesh Nensi Shah Vs. Oriental Insurance Co. Ltd. reported at III (2006) CPJ 414 NC, has observed that :-

“no amount of correspondence between the parties can extend the period of limitation.”

15. In the present case also, the complaint case has been filed after almost 10 years from the date of cause of action. Even though, the complainants have made several requests to the opposite party but the same cannot be considered as the accrual of fresh cause of action. We find that though the complaint petition is accompanied with a separate petition praying for condonation of delay but the said delay in filing the instant complaint case has not been explained properly in the said petition.

16. Under these facts and circumstances, we are of the view that the complaint case would be dismissed as barred by limitation.

17. In the result, the consumer complaint case being No. CC/128/2023 is hereby dismissed being barred by limitation and without being admitted.

18. The consumer complaint case is disposed of accordingly.