Judgment : Dt.20.2.2017
This is a complaint made by one Sajal Kanti Dutta Roy son of Late Lalit Mohan Dutta Roy, 17R, K. P. Roy Lane, P.S.-Garfa, Kolkata-700 031 against Manna Dutta, son of Late Haripada Dutta, 43, Ashsutosh Colony, Kolkata-700 078, praying for direcgtion upon the OP, developer to handover final sanctioned building plan and first sanctioned building plan, for direction upon the OP to handover the Completion Certificate issued and for direction upon the OP to pay Rs.2,70,000/- due to not providing the flat within time and Rs.20,000/- for repairing of the damaged portion of the flat and order for direction upon the OP to pay Rs.1,00,000/- for shortage of flat area and order for direction to the OP for compensation of Rs.2,00,000/- and Rs.20,000/- as litigation cost.
Facts in brief are that the Complainant and his other brothers Amit Kumar Dutta Roy, Sujit Kumar and Ujjal Kumar Dutta Roy are the absolute owners in respect of all that land measuring about 3 cottahs 8 chittaks and 33.75 sq.ft., situated at Mouza- Dhakuria, J. L. No.18, R.S. No.5, Pargran-Khaspur, Touzi No.230/2 and 233, appertaining to C.S.Khatian No.274, Sub-Khatian No.275, comprising part of C.S. Dag No.1457, P.S.-Garfa, Sub-Registration Office at Sealdah.
Complainant with other brothers entered into a development agreement on 23.10.2009 for construction of a new building. Further, that the OP handedover the possession of the flat in favour of the other brothers of the Complainant as per the development agreement and supplementary development agreement. The developer handed over the possession of the flat in favour of the complainant in terms of the development agreement and supplementary development agreement.
Complainant on several occasions requested the developer, OP No.1 for specific demarcation of garage in terms of development agreement and supplementary agreement and also demanded to hand over the final sanction building plan and completion certificate.
Developer is guilty of not providing Completion Certificate. He is also guilty of not handing over garage with specific demarcation in terms of the development agreement and the developer is also guilty of not handing over sanctioned building plan. The development agreement was executed on 23.10.2009 and as per the agreement it was agreed to be completed within 22.4.2011. But, the developer handed over possession on 6.7.2013, after lapse of 27 months. The Developer handed over the flat in favour of the Complainant in defective condition. The door was broken. So, Complainant filed this case.
OP filed written version wherein he has stated that this case is barred by limitation. Further, it is stated that a proceeding of same nature is pending for adjudication before the Civil Court bearing No.179/2015 wherein the reliefs claimed for are more or less same to the reliefs claimed in the instant P.O.C. and the point for adjudications are also same. In addition, the OP has denied all the allegations and prayed for dismissal of this complaint.
Decision with reasons
The Complainant has filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint petition. Against this affidavit-in-chief, the OP has filed questionnaire to which the Complainant has filed affidavit-in-reply. Similarly, the OP has filed evidence against which the Complainant has filed questionnaire and the OP has filed affidavit-in-reply.
Main point for determination is whether the Complainant is entitled to the reliefs as prayed for.
On perusal of the complaint petition, it appears that the first relief is for specific demarcation of the car parking / garage as per the development agreement and supplementary agreement.
It appears from the development agreement that Complainant was to be handed over a car parking space. Further, it appears that Complainant got the possession of the flat on 6.7.13 wherein it is clearly stated that a car parking space on the ground floor at the south west corner was handed over to the Complainant on mutual sharing basis. As per the prayer may be annexed, Complainant received the possession in July, 2013 and filed this complaint after a lapse of about 3 years. However, as per the Consumer Protection Act, any complaint is to be filed within a period of two years which has not been done by the Complainant in the present case. Further, Complainant did not file any petition and prayed for condoning in filing this case, as such prima facie this complaint is barred by limitation. Further, 2nd prayer of Complainant is an order for direction upon the developer to hand over the sanctioned building plan and first sanctioned building plan in favour of the Complainant. Since this complaint is barred by limitation, this relief cannot be ordered in favour of the Complainant. Further, the relief which Complainant has prayed cannot be allowed in favour of Complainant.
Furthermore, it appears that there is a Title Suit pending over the self same issue and over the same property where Complainant has prayed for almost same relief, so, we are of the view that Complainant is not entitled to the relief which he has prayed for.
Hence,
ordered
CC/244/2016 and the same is considered and dismissed on contest.
