DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
M. A. NO-261/2018
C.C. No-633/2017
Date of Filing: Date of Disposal:
07.09.2018 20.12.2018
Complainant :- Mr. Lal Kumar Roy,
S/o Bijay Hari Roy,
55/27, Bimannagar,
Adyama Apartment, Kaikhali, P.O. & P.S.-Airport,
District-North 24 Parganas, Kolkata-700 052.
=Vs=
Opposite Party:- Manika Kahali, W/o Late Ashok Kahali,
308, Station Road (West), New Barrackpore,
District-North 24 Parganas, Kolkata-700 131.
P R E S E N T
:- Sri. Bankim Chandra Chattopadhyay………..…..President.
:- Smt. Silpi Majumder ……………………………………Member.
:- Smt. Monisha Shaw …………………………………….Member.
ORDER No-07
This order is arising out of the MA being no-261/2018 filed by the OP in the C.C. No-633/2017challenging the maintainability of the complaint.
In the application it is stated by the OP that the OP has filed written version along with this application challenging the maintainability of the complaint as the complaint has been filed by the Complainant after 17 years 10 months and 18 days from the date of cause of action of this case. In the petition of complaint it is stated by the Complainant that on 21.12.2016 cause of action has arisen and from the said date this complaint is filed within the statutory period of limitation. It is stated by the Complainant that on 21.12.2016 by issuing a letter the Complainant demanded execution and registration of the deed of conveyance in his favour in respect of the suit property. But the said date cannot treated as the date of cause of action on the ground that the Complainant has admitted that possession letter was served on 03.02.1999 and vacant and peaceful physical possession was given on 07.02.1999. Since the date of possession till filing of this complaint there is clear gap of 17 years 10 months & 18 days. There is no explanation for such prolonged delay and moreover there is no separate petition praying for condonation of delay for the abovementioned period. Within the prolonged period no written continuous communication was made by the Complainant with this OP. It is mentioned in the petition of complaint that due to financial stringency the Complainant was unable to take step for execution and registration of the sale deed in his name.
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Therefore the complaint petition is barred by the Section 24A of the Consumer Protection Act, 1986. What prompted the Complainant to keep himself silent over this matter for the prolonged period, no cause is assigned in the complaint. It is clear that suppressing the material fact this complaint is filed remaining silent over the said issue. According to the OP if this application is not allowed the interest of the OP will be seriously prejudiced and prayer is made by the OP for allowing this application.
This application has duly been challenged by the Ld. Counsel for the Complainant by raising vehement verbal objection stating that this complaint is not barred by limitation in view of the Section 24A of the C.P. Act, 1986, rather it is well maintainable in the eye of Law and filed within the period of limitation. The Ld. Counsel for the Complainant has stated that on 21.1.2.2016 one notice was issued in the name of the OP on behalf of the Complainant and since the said date this complaint is filed within two years as on 21.12.22016 cause of action had arisen. The Ld. Counsel for the Complainant has further argued that based on an agreement sale and purchase of the property can be concluded. Admittedly the Complainant purchased the property and the OP being the service provider agreed to sale out the property to the Complainant. Before sale and purchase both parties have entered into an agreement for sale and there is one clause that the property/flat shall be executed and registered by deed of conveyance in favour of the purchaser. According to the Complainant until and unless sale deed is executed in favour of the purchaser, the cause of action will continue. Being continuous cause of action according to the Complainant there is no delay in filing this complaint and it cannot be barred by the Section 24A of the C.P. Act, 1986. The OP has filed this application with a view to drag the matter, which is liable to be dismissed with exemplary cost.
We have carefully perused the content of the application, heard verbal objection of the Complainant and heard argument at length on the instant application advanced by the Ld. Counsel for the parties. During argument the Ld. Counsel for the OP has placed reliance on some Rulings-
- 1959 AIR (SC) 798,
- 2009 (2) CPJ 29,
- 2011 (182) DLT 597,
- 2015 (3) CPJ 440,
- 2003 (3) CPJ 10,
- 2014 (1) CPR 676,
- 2014 (1) CLT 392.
Now we are to see as to whether this complaint is barred by limitation in view of the Section 24A of the Consumer Protection Act, 1986 or not. From the petition of complaint it is evident that the Complainant being an intending purchaser of one flat from the OP had entered into an agreement for sale with the OP on 12.04.1998,
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entire consideration amount had duly paid by the Complainant and received by the OP as per the payment schedule mentioned in the agreement, on the date of making payment of the balance consideration amount the OP demanded a sum of Rs.15,000/- towards execution and registration of the deed of conveyance, the Complainant accordingly paid the said amount also, on 03.02.1999 letter of possession was given to the Complainant, on 07.02.1999 the Complainant received vacant and peaceful physical delivery/possession in the said flat, on 12.05.2016 the Complainant approached before the OP requesting to register the deed of sale in his favour in respect of the flat. According to the Complainant without performing the contractual liability the OP was demanding further amount in an unlawful manner and as the OP did not take any step to register the sale deed hence this complaint is initiated making some allegations and praying for some reliefs along with execution and registration of the sale deed.
In respect of such averment we are to say that payment of Rs.15,000/- by the Complainant to the OP as per demand, the said averment has not been corroborated by the Complainant by producing money receipt. It is clear to us that admittedly since possession in the said flat on 07.02.1999 the Complainant kept himself complete silent over execution and registration of the sale deed in his favour till 20.12.2016. In this regard question has been cropped up in our mind that what prompted the Complainant not to take any step for registration of the sale deed in respect of the flat since possession to submission of the said letter to the OP. Admittedly in the meantime more than 17 years have already been elapsed. The Complainant has mentioned that due to precarious financial condition he could not take any step in this regard. But such explanation is not wholly satisfactory to us as 17 years and 10 months is a very prolonged period. However as the both parties have entered into an agreement for sale wherein several clauses are there. Obviously there is a clause that registration shall be executed in favour of the purchaser and the purchaser shall bear the entire cost for registration. So in our opinion mere by providing physical possession in the said flat the contractual obligation of the OP cannot be ended. As the agreement is a contract and both parties after adopting the every clauses mentioned therein put their respective signatures, at this juncture none of them cannot travel beyond the said agreement for sale. Until and unless the contract is concluded, both parties are liable to abide by the same. In the instant case the relationship by and between the Complainant and the OP is ‘Consumer-Service Provider’. The Complainant being intended to purchase a flat approached the OP, so the Complainant is the intending buyer and the OP is the seller. Sale and Purchase of the property is concluded through the registration of the sale deed in respect of the said property. Admittedly both parties did not take any step for registration of the sale deed, rather it was the primary duty of the Complainant to register the same, but for a prolonged period the Complainant sat idle over this issue. Generally this issue cannot be a headache to the OP as if registration is not done the interest of the OP will never be prejudiced.
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However admittedly registration of the sale deed has not yet been executed in respect of the property in favour of the Complainant. Therefore in the instant complaint the cause of action is still continuing as the parties have failed to discharge their contractual obligation till date. In this respect we may mention to the judgment passed by the Hon’ble NCDRC in the case of Rani Sati Mata Co-operative Housing Society Limited vs. Sudam, reported in 2018 (1) CPR 602 (NC) wherein it has been held that this was a case of continuing cause of action, because the Complainant had every right to claim possession of the plot in question, after the execution of sale deed in his favour. In the said case complaint was filed after 20 years from the date of the cause of action (Paragraph no-6). In another case the Hon’ble NCDRC was pleased to observe (2018) (4) CPR 614 (NC), in the case of Manoranjan Singh Kanak vs. M/s. Baba Builders & Another, that cause of action continues till possession /occupancy certificate is issued by the builder. In the said case the agreement was signed on 28.03.2013, registration and possession completed within on 04.06.2013, but the Complaint was filed in the year 2016alleging that possession, occupancy certificates were not issued and there were some flaws in construction, not constructed as per the bye laws etc. The Hon’ble SCDRC was pleased to dismiss the complaint holding that the complaint is barred by limitation, but the Hon’ble NCDRC was pleased to allow the said appeal and sent back the complaint on remand to the Hon’ble SCDRC for adjudication on its merit. In another judgment the Hon’ble NCDRC has been held (2018) (1) CPR 283 (NC), in the case of Udam LalSingla & another vs. Emaar Mgf Land Limited & Others, that cause of action continues until conveyance deed is registered and completion certificate is obtained by OP in respect of property in question.
In our opinion that the Rulings as mentioned above can be implemented in the instant application as the fact of the said cases and the instant one are almost similar and identical.
Admittedly in the instant complaint since possession in the said flat till filing of this complaint more than 17 years and 10 months have already been elapsed. But during this prolonged period the OP did not approach before the Complainant for registration of the sale deed, if the OP was refused by the Complainant, then only from the said date cause of action had occurred. Simultaneously the letter dated 21.12.2016 cannot give birth of any cause of action of this complaint, actually in the instant complaint the cause of action is continuing as the parties inspite of entering into an agreement did not bother to discharge their contractual liability till date.
Now we are to adjudicate how far the ratio of the abovementioned Rulingsare applicable in the instant application on which the Ld. Counsel for the OP has relied on. The Ruling-(i) & (iii)are not applicable in this application. Upon going through the same we have noticed that the factual aspect of the said casesare not at all identical with the content of the application and moreover the said judgment has not been passed on the Section 24A of the Consumer Protection Act,
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1986. Be it mentioned that the Limitation Act, 1908 is not applicable in the Consumer Protection Act, 1986 as in this Act there is separate provision. The Ruling (ii) is also not applicable as the fact of the said case is totally different from the instant complaint as in the said was barred by limitation as per the Section 24A, inspite of this Consumer Forum passed the judgment on merit without considering the limitation.
Let plain copy of this order be given to the parties free of cost as per the provision of the CPR, 2005. In the Ruling (iv)it has been observed by the Hon’ble NCDRC that so long as the possession is not delivered to him the buyers can always approach a Consumer Forum- When seller flatly refuses to give possession that the period of limitation prescribed in Section 24A of the Consumer Protection Act would began to run- Hence, complaint has to be filed within period of two years from the date on which the seller refuses to deliver possession to the buyer. Upon perusal of the said Ruling we are of the opinion that the fact of the said case also does not match in the instant complaint as at no point of time the OP was refused by the Complainant for registration of the sale deed, if that is not occurred, the Ruling has no bearing with the instant one. The subject matter of the Ruling (v) is almost same and identical with the Ruling (iv), hence not applicable. In the Ruling (vi) admittedly there was delay in filing the complaint and no sufficient cause was assigned for such delay to condone the same. Time of the said case is not matching with the instant one, hence cannot be implemented. Having no bearing with the instant complaint the Ruling (vii) cannot be applicable hence we are not in a position to invoke Section 26 of the Consumer Protection Act, 1986.
Going by the foregoing discussion hence it is ordered that the MA being no-261/2018 is hereby dismissed on contest without any cost.
Fix ………………. For filing questionnaire by the OP to cross-examine the Complainant without any fail.
Let plain copy of this order be given to the parties free of cost as per the provision of the CPR, 2005.
Member Member President
Dictated & Corrected by
