Jharkhand

Bokaro

CC/16/18

Mr. Ramesh Sah - Complainant(s)

Versus

Kishan Construction - Opp.Party(s)

11 Jul 2022

ORDER

District Consumer Commission, Bokaro.

Case No. 18/2016

  Date of Filing-09-03-2016

 Date of Order-11-07-2022

Mr. Ramesh Sah S/o Late Tila Sah

R/o Flat No. 401, Shivam Apartment Chira Chas,

Bokaro 827013, Jharkhand.

                                      Vr.

Kishan Construction

Plot No. 729, Village- Chira Chas, P.O.- Bharra, 827013, District- Bokaro , Jharkhand.

Present:-

          Shri Jai Prakash Narayan Pandey, President

          Smt. Baby Kumari, Member

                                                -Order-

1. Complainant has filed this case with prayer for direction to O.P. to complete the construction of flat as per paragraph 2 of the complaint petition and to pay all registration fee for execution of the sale deed for the same building and to pay Rs. 5,00,000/-  as compensation.

2                 Complainant’s case in brief is that earlier he has filed C.C. No. 50/2014 before this Forum/Commission but due to some unavoidable reason he withdrawn it. But at present seeing no other best option to get speedy Judgment regarding the case again this case is being filed with following assertion. Fact of the case are that complainant purchased flat No. 401 in Shivam Apartment on Rs. 13,50,000/- from Kishan Constructions Builder Mr. Sanjay Kumar to whom all sale price has already been paid but he does not agree to register the flat as per details of approved map of MADA. Further case is that as per MADA, Dhanbad   said apartment has been approved to be constructed on 32 Decimal area, super build up area 1205 squire ft. and 262 Sft. for car parking as mentioned in schedule A & B of the complaint petition but construction has been made on 25 decimal area and build up area is 1048 Sft. and car parking are is 150 Sft. As per approved map total 32 flats with open terrace were to be constructed but with the help of MADA officers builder has snatched various facilities after execution of sale agreement. Inspite of filing of application concerned officials have not taken any action thereafter, letter dt. 01.11.2011 and 25.12.2011 were given to the builder through speed post but no reply was received, memorandum dt. 16.08.2013 was given to executive officer Nagar Parishad, Chas having no impact, hence case has been filed with above mentioned prayer.

3.      O.P. has filed W.S. mentioning therein that earlier consumer case No. 50/2014 was filed by the complainant before this Forum/Commission with same cause of action in which this O.P. appeared and submitted W.S. but on 21.04.2015 complainant has filed an application mentioning therein that “the case must have been filed before proper forum and further prayed for leave to withdraw this case from the Consumer Forum so that he can go to a proper forum for hearing of this case”. After hearing of that very application vide order dt. 07.05.2015 case was disposed off  as withdrawn. Further reply is that in this way case is barred by principle of Res-Judicata. Further reply is that on the same set of facts again this case has been filed which is not maintainable and barred by limitation. Further reply is that complaint is also barred by the principle of Estoppel U/s 115 of the Indian Evidence Act. Further reply is that construction has been made as per approved plan as well as later on revised approved plan approved by the competent authority and this O.P. was always ready and willing to get the said flat be registered as per approved plan but inspite of repeated requests complainant has not get the flat registered in his name. Further reply is that as per agreement dt. 30.01.2009 entire construction has been completed and there is no deviation from the agreement to sale deed. Further reply is that after completion of the construction as per approved plan and agreement, possession of the flat has already been handed over to the complainant in the month of March, 2010 since then complainant is residing therein with his family members since last 6 years hence case is hopelessly time barred. Hence it is prayed to dismiss the case.

4.      On the basis of the pleadings of the parties following points are being framed for decision in this case:-

         A. Whether complaint case is time barred ?

         B. Whether this complaint is barred by the principle of Estoppel and Res-Judicata ?

         C. Whether complainant is entitled to get any relief as claimed ?

5.      For the sake of convenience point number A & B are being taken up jointly for decision of this case because both are interlinked and based on common facts.

6.      It is admitted fact that earlier on the same facts and grounds same complainant has filed Complaint Case No. 50/2014 before same Forum in which O.P. appeared and filed W.S. Another admitted fact is that after appearance of the O.P., complainant has filed an application before this Forum on 21.04.2015 mentioning therein that “During hearing of above mentioned case, it has been come in knowledge that this case must be produced in proper Forum. So, kindly allow me to go to proper Forum for the hearing of this case and permit to withdraw this case”. On that very application order has been passed on 07.05.2015 and case has been disposed off as withdrawn. This application itself is sufficient to show that complainant himself has admitted the fact that he had not approached the proper Forum rather proper forum is some other forum.

7       The photo copy of the certified copy of the application dt. 21.04.2015 filed in C.C. No. 50/2014 and photo copy of the certified copy of order dt. 07.05.2015 passed in that very case have been filed by the O.P. as Annexure 1 & 2.  It show that C.C. No. 50/2014 filed on 11/06/2014 in respect to same cause of action and there is no new cause of action of the present case. This case has been filed on 09.03.2016 in respect to deficiency in service related to construction of flat etc. which was based on agreement dt. 30.01.2009 for sale/purchase of flat. Another important fact is that possession of the said flat was handed over to the complainant in the month of March 2010 and since then complainant was having no complain against the O.P. rather for the first time he raised grievance before this Forum by filing complaint case No. 50/2014 on 11/06/2014 but later on after filing W.S. by the O.P. he realized that this Forum is not the proper forum hence on 21.04.2015 he has filed application for withdrawal of the case which was allowed on 07.05.2015. There is no any prayer for condonation of delay in filing of this case which has been filed after a delay of about more than 7 years from the cause of action dt. 30.01.2009 (the date on which agreement was executed) . Taking it with another angle the possession of the flat was handed over to the complainant in the month of March 2010 and at that very time there was no grievance of the complainant related to deficiency in service but later on after 6 years from taking the possession of the flat this case has been filed which is hopelessly time barred.

8       Another important fact is that it has never been disclosed by the complainant that after withdrawal of the C.C. No. 50/2014 which of the forum was approached by him and why again he has chosen this forum/commission. In view of filing of earlier case and its withdrawal  it is apparent that complainant will be stopped as per principle of Estoppel u/s 115 Evidence Act.

9       In light of above discussion we are of the view that this case is hopelessly time barred and principle of Estoppel is applicable in this matter and complainant cannot be permitted to say anything else than the  facts mentioned in petition dt. 21.04.2015 filed in C.C. No. 50/2014  and agreement dt. 30.01.2009. Accordingly both points are being decided against the complainant.

10    Point No. C :-  So far this point is concerned on this aspect we would like to mention here that agreement deed was executed on 30.01.2009 in between both the parties and this fact is not in dispute. It is not the case that the agreement was fraudulent hence both parties are expected to obey the terms and conditions of the agreement executed by them. Here in this case there is no grievance of the complainant that O.P. has violated the terms and conditions of the agreement deed. Rather it is not in dispute that O.P. has not completed the constructions as per agreement. Therefore, both parties are expected to obey the terms and conditions of the agreement deed which is not in dispute. Demand of the complainant is beyond the terms and conditions of the agreement deed which are not acceptable at all. Therefore, we are of the opinion that complainant is not entitled to get any relief as prayed.

11    Thus, we are of the view that complaint petition is hopelessly time barred and barred by the principle of Estoppel. Further complainant is not entitled to get any relief beyond the terms and conditions of the agreement deed. Therefore, complaint petition is liable to be dismissed.

12    Accordingly, this case is being dismissed. In the facts and circumstance of the case parties shall bear their own costs.