HON’BLE MR. SUDEB MITRA, PRESIDING MEMBER
Order No. : 13
Date : 30.08.2024
Being aggrieved by and dissatisfied with the order passed by the Ld. DCDRC, Purba Bardhaman on 14.09.2023 in CC/115/2023, where the complainant of CC/115/2023 Vaskar Kanti Baksi’s Complaiant Case No. 115/2023 was determined by the Ld. DCDRC, Purba Bardhaman as barred by limitation as per scopes of Sec. 69 of the C.P. Act of 2019, having regard to it’s considering the fact that as the cause of action in CC/115/2023 was in existence and ended on date of registration of Sale Deed and taking of possession of the properly purchased by the complainant Vaskar Kanti Baksi on 08.11.2013 and as the complaint Case No. 115/2023 was filed from the end of Vaskar Kanti Baksi on 01.09.2023 over the issue centering around the cause of action of CC/115/2023, the complaint Case No. 115/2023, filed by Vaskar Kanti who filed the instant Appeal before this Commission on 15.10.2023, is barred by law of limitation, as per scopes of Sec. 69 of the C.P. Act of 2019.
By filing the instant Appeal, before the Commission, the Appellant/Complainant of A/63/2023 CC/115/2023 has contended that the impugned order dated 14.09.2023 passed in CC/115/2023 is misconceived, erroneous and contrary to law and the same suffers from material irregularity. It is also agitated by the Appellant/Complainant of A/63/2023 and CC/115/2023 Vaskar Kanti Baksi that there was erroneous assessment held by the Ld. DCDRC, Purba Bardhaman, regarding the existence of CC/115/2023 as barred by limitation as per scopes of Sec. 69 of the C.P. Act of 2019, since the Ld. Commission below could not appreciate that the cause of action of CC/115/2023 was continuous one since the OP of CC/115/2023 had not provided completion certificate in respect of the purchased flat of the complainant of CC/115/2023 Vaskar Kanti Baksi and that is the reason for continuation of the cause of action of CC/115/2023 and the same was under appreciated by the Ld. DCDRC, Purba Bardhaman. Besides, as the other ground of Appeal the Application agitated that the Ld. DCDRC failed to appreciate deficiency in service of OP of CC/115/2023.
By filing the instant Appeal the Appellant/complainant has prayed for setting aside the impunged order dated 14.09.2023 passed in CC/115/2023 and to admit and register the instant Appeal for hearing.
The factual matrix of the complaint case needs to be reflected in gist at this stage and the same is reflected below in brief.
It is the Appellant/Complainant Vaskar Kanti Baski’s case that he had purchased one residential flat No. 203 on the 2nd Floor Block – Basant at Mahtra Bihar Complex, measuring an area of 1140 sq. ft., super built area with 120 sq. ft. (covered garage in ground floor) consisting of 3 bed rooms, 01 dining room, 2 bath rooms, 1 kitchen, 1 varandah upon the land measuring 198 decimals within Mouza Arrah, J.L. No. 91, L.R. Khatian No. 2501, 2502, 2503, 2504, R.S. Plot No. 1091, 1092, 1093, 1094, 1096, 1102/1998, 1909, 1910, 1911, 1912, L.R. Plot No. 1134, 1135, 1136, 1137, 1139, 1145, 2673, 2683, 2684, 2685 under P.S. Kanksa, within Malandighi Gram Panchayat at a consideration, agreed upon in between the complainant/Appellant and the OPs of the CC/115/2023 and A/63/2023 on execution and registration of Deed of Sale being 8704 for the year 2013, Book No. I, C.D. Vol. No. 20 pages from 3632 to 3647, registered before the Addl. District Sub Register, Durgapur.
In the specific contention of the Appellant/Complainant Vaskar Kanti Baksi that at the time of registration of the Sale Deed in respect of the aforestated flat purchased by the Appellant/Complainant from the OP side of this Appeal and complainant as well, the said Ops could not complete all the works of the entire apartment and on the assurance of the Appellant/OP side for completion of those incomplete works of the entire apartment as early as possible, the appellant/Complainant had accepted the delivery of possession of the incomplete flat and later on repeated requests made by the Appellant/Complainant, the OP side had not completed the incomplete works of the Appellant/Complainant’s flat and email letter dated 19.11.2022 sent by the Secretary of the Durgapur Basant Basi for that purpose was not entertained by the OPs though OP, by sending email dated 14.12.2022 to the concerned Secretary of the said Society ensured to deal with those issues and later vide advocates letter dated 25.05.2023 denied the liability on the score while replying the said society’s sent lawyers letter dated 15.05.2023.
Later the complainant/Appellant Vaksar Kanti Baksi filed the complaint case No. 115/2023 against the OPs of CC/115/2023 and this Appeal as well but vide impugned order dated 14.09.2023, the Ld. Concerned DCDRC, Purba Bardhaman, held the complaint case barred by limitation and against that impugned order dated 14.09.20263, the complainant of CC/115/2023 had preferred this Appeal, praying for setting aside the impugned order dated 14.09.2023 passed in CC/115/2023 for the reasons as I have already reflected in the early paragraph of this judgement.
The OP side resisted this Appeal contending the same as non-maintainable and not sustainable in the eye of law in the absence of any alleged promise to vindicate deficiency in service in the eye of law as per scopes of C.P. Act of 2019.
Point for consideration
Now it is to determined as to whether the instant Appeal is legally entertainable or not and it is to be determined further on the other hand as to whether the impugned order dated 14.09.2023 passed in CC/115/2023 by the Ld. DCDRC, Purba Bardhamabn, assailed in this Appeal, is legally sustainable in the eye of law.
Decision with reasons
I have given through consideration to the contents of the CC/115/2023 and the case record of CC/115/2023. This is the specific assertion of the Appellant/Complainant Vaskar Kanti Baksi that the OPs had assured him that the OPs would complete the incomplete works in his apartment/flat soon on his taking possession of the flat. Nothing substantive to rationalize/vindicate such claim of the Appellant/Complainant in the CC/115/2023 (A/63/2023) is forthcoming from the available materials on record furnished from the appellant/complainant.
The contents of the executed and registered Sale Deed in respect of the plot, purchased by the appellant/complainant from the OP side of this Appeal/complainant No. 8704 dated 08.11.2023 is not reflecting any such claim of the Appellant/Complainant, as reflected in the previous paragraph of this Judgement.
The contents of the ‘Agreement of Sale dated 05.08.2013 entered into in between the appellant/complainant and the OP is not showing any condition or existence of stipulation that the OP assured the appellant that after taking possession of the flat by the appellant/complainant from the OP of this Appeal/Complainant, they would (OP side of this Appeal/Complaint) complete the incomplete works of the complainant/appellant’s said allotted flat. Rather the specific stipulation in this agreement of Sale dated 05.08.2013 is reflecting that after handing over of the flat the OPs of this Appeal CC/115/2023 shall have no responsibility towards the maintenance of the flat in concern of the appellant/complainant of this Appeal.
The Sale deed no. 8704 dated 08.11.2013 in respect of the concerned flat of this complaint/Appeal, executed and registered in between the contesting parties of this Appeal is revealing categorically that there is existence of specific stipulation in this Deed dated 08.11.2023 that the purchaser of the said flat i.e. the Appellant/Complainant of this case Vaskar Kanti Baksi, prior to his purchasing the concerned flat had made necessary inspections of the flat referred in this case and on being statisfied with the construction works of the flat and common facilitates provided in the said flat he has taken possession of the flat. The letter of possession dated 12.11.2013 in respect of that flat is showing that the appellant/complainant Vaskar Kanti Baksi had acknowledged his taking of possession of the flat, acknowledging satisfactory possession of the same. The said letter of possession dated 12.11.2013 is undenyingly and unchallengdly containing the signature of the Appellant/complainant Vaskar Kanti Baksi, in it.
These all lend sufficient ground to hold that after the execution and registration of the sale deed dated 08.11.2013 in respect of the Appellant/Complainant’s flat, entered into in between the applicant/complainant and the OP of this Appeal and OP of this CC/115/2023 as well and on the coming into existence of the letter of possession of the said flat dated 12.11.2013, the appellant/complainant had taken possession of the flat and at that time the cause of action of CC/115/2023 had started and by two years from that time i.e. by 07.11.2015/11.11.2015 the complainant case No. 115/2023 could have been filed in consonance with the scopes of Sec. 69 of the C.P. Act of 2019 specially when the completion certificate of the residential Apartment in which the Appellant/Complainant’s flat exists dated 03.03.2016 had been issued by appropriate authority in favour of the representatives of the OP side of this Appeal/Complaint. Besides long after the stipulated time fixed for filing the complaint case from the date of arisal of the cause of action of this case, on remote issues/matters in respect of the Appellant’s flat, some letters were sent to the OP starting on 19.12.2022 for the first time and that continued for some span of time. These alone, without any cogent reason to reflect those remote issues so referred in those letters of the Secretary of the Housing Society to which Appellant/Complainant belongs cannot be treated as continuation of cause of action and the same cannot be utilized as the extended period of limitation to get the complaint case admitted and/or immuned to be affected by the limitation period to file complaint as per scopes of Sec. 69 of the C.P. Act of 2019.
Ld. Counsel for the appellant/Complainant referred the cited reference of Civil Appeal No. 4000 of 2019 (Samruddhi Co-op Housing Society Ltd. VS Mumbai Mahalaxmi Construction Pvt. Ltd to indicate the appellant’s case and to assail the impugned order of CC/115/2023 dated 14.09.2023.
I have given thorough consideration to this cited reference. I have my deepest respect to the findings of this cited reference, this appears from the factual matrix of the referred case that OP was failing to provide the occupancy certificate and relevant charges till certificate has been provided to the Appellant and that was treated as potential breach of agreement/contract or tort on the part of the promoter/respondent lending it to be treated as continuation of breach of contract which results in continuation of cause of action for such continuation of breach.
Here in this case no such situation arose and the factual matrix of the referred case is not found similar to the factual matrix of the case in hand to lend any cogent scope to hold that there exists potential scopes for continuation of cause of action in this case in hand too for any continuation of breath of contract.
In this backdrop, having regard to the available materials on record and in the light of the discussions made in this judgement, I did not find any reason to hold that their existed any scope in the given circumstances and factual matrix of CC/115/2023 to hold that there remains any scope to hold that there was existence of any justifiable reason to appreciate that there was continuation of breach of contract and/or agreement made by the OPs of this Appeal with the Appellant in this case, at the cost of the Appellant to categories that breach as the paving ground to find existence of continuation of cause of action in CC/115/2023 thereby legally permitting to file complaint beyond statutory period, stipulated U/Sec. 69 of C.P. Act of 2019 for filling complaint.
Having regard to the finding of the Hon’ble NCDRC in CC/89/2022 pressed for the end of the OP side of this Appeal decided with other cases on 24.11.2023, I find that the complaint case No. 115/2023 filed on 01.09.2023, in respect of the alleged breach of obligations, so agitated by the complainant of CC/115/2023 suffers from limitation since the cause of action of CC/115/2023 arose on taking of possession of the flat in issue by the complainant/appellant from the OP of CC/115/2023 on 12.11.2013 and the complaint case No. 115/2023 was filed on 01.09.2023 which is not consonance with the scopes of Sec. 69 of the C.P. Act of 2019 and thereby the CC/115/2023 is inadmissible too.
In the premises, I find that the impugned order dated 14.09.2023 passed in CC/115/2023 by the Ld. DCDRC, Purba Bardhaman deserves no interference rather deserves to be affirmed, in the light of the discussion, as reflected above.
Hence, it is
ORDERED
That the instant Appeal A/63/2023 stands rejected on contest but without cost.
The order dated 14.09.2023 passed in CC/115/2023 by the Ld. DCDRC, Purba Bardhaman stands affirmed on contest.
Digitalized LCR be refurnished and copy be supplied free of cost to the contesting parties of this Appeal as per scopes of the C.P. Act and its relevant rules and regulations.
