ORDER NO. 08     Date :  24.01.2022

                Today is fixed for passing order in respect of MA  52/2021 filed by the OP. The case was last heard on  11.01.2022 where both parties were present. WO against the said MA was accordingly filed by the complainant .

                Perused the said MA No. 52/2021 and it is observed that the OP has prayed for dismissal of the consumer complaint on the grounds that  the complaint petition is time barred because the property was conveyed to the complainant by deed of conveyance executed on 27.02.2016 before the Additional Registrar of Assurance -II, Kolkata, being No. 190200877 of  2016 book No. 1, volume No.1902-2016. Since the property is finally conveyed to the complainant, there is no continuous cause of action. The OP also states that the complainant has filed a title suit being No.  TS/1286/2019 pending before the Ld. 5^th Bench, City Civil Court, Kolkata. The said title suit has been filed on the self same parties for which the petition is barred by the principles of Res-judicata .  The OP has further stated that the complainant has been enjoying full right, title interest of the said flat measuring 1500 sq. ft. super built up area without any hindrance since then. In view of the above, the OP has prayed for  dismissal of the consumer complaint .

                Against the said MA the complainant  has stated in his WO that  there is substantial admission of the OPs in their WV with regard to the allegations made in the complaint petition. The complainant  has further stated that the building is still  incomplete and the OPs have deviated from the sanctioned plan and also executed unauthorized construction work changing the nature and character of the building. He has mentioned that the Pump Room, Darwan Room and Meter Room are converted into car parking space. The OP has not obtained completion certificate. Since the building is not complete the cause of action is continuing. It is also mentioned that the CP Act, 1986 does not provide any provision to challenge the maintainability of the complaint after it being admitted. Hence, the application of non maintainability filed by the OP be dismissed.

                On careful perusal of the MA filed by the OP and WO filed by the complainant we find that the property in question has been conveyed by the OP to the complainant by executing and registering deed of conveyance way back in 2016. The complainant is enjoying the flat in the said building since then.  The allegations made by the complainant against the OP are in such nature which are to be adjudicated by the authorities elsewhere  other than the Consumer Commission.  Moreover, a Title Suit being No.  TS/1286/2019  filed by the parties where the  complainant being one of them on the same subject  matter is kept pending in the court of Ld. 5^th Bench, City Civil Court Kolkata. The matter has been adjudicated by the Learned Court with an interim order of maintaining Status Quo. Under this situation no court has any authority to interfere in the said subject matter which has already been adjudged by the Competent Court of Law.  As per Section 11 of the code of Civil Procedure,1908 the principles of Res judicata is very much applicable here.   It is also worth mentioning that we do not find any document which shows that the OP had promised to handover the completion certificate to the complainant. 

                In view of the above observation, we are of the considered view that the OP has established his prayer against the complainant and accordingly the non maintainability petition under MA 52/2021 is allowed on contest and the  original complaint  being No.  229/2020 is dismissed.

                Thus, the MA 52/2021 is disposed off and Consumer Complaint Petition No.  229/2020 stands dismissed.