HON’BLE MR.SUDEB MITRA, PRESIDING MEMBER
Order No. : 13
Date : 30.08.2024
Feeling aggrieved by and dissatisfied with the impugned order dated 14.09.2023 passed in CC/117/2023 by the Ld. DCDRC, Purba Bardhaman, where the complainant’s/Appellants filed CC/117/2023 was not admitted and determined as highly time barred by the Ld. DCDRC, Purba Bardhaman, the complainant of said CC/117/2023 has preferred the instant Appeal No. 62/2023 on 15.10.2023 before this Commission, praying for setting aside the impugned order dated 14.09.2023, passed in CC/117/2023, assigning reasons to assail this impugned order dated 14.09.2023 of CC/117/2023, that the impugned order pronounced by the Ld. DCDRC, Purba Bardhaman, is reflecting that the said impugned order of CC/117/2023 is a result of non-application of judicial mind and expertise, and it is result of misconception of law of limitation of 1963, other laws and facts of CC/117/2023 as well and is grossly irregular and unsustainable in the eye of law and it is also agitated by the Appellant that since it is (impugned order dated 14.09.2023 in CC/117/2023) devoid of cogent reasoning, backed by law and is affected by obscured appreciation of the unfair trade practice policy, judicial assessment of the concept of consumer as per C.P. Act, scopes of pecuniary and territorial jurisdiction of C.P. Act, as contemplated, the said impugned order deserves to be set aside.
The factual matrix of CC/117/2023 in gist needs to be focused here and the same is stated below in brief. The complainants/appellants of CC/117/2023 and A/62/2023 respectively, filed CC/117/2023 U/Sec. 35 of the C.P. Act of 2019 on 01.09.2023, contending that from the OPs of CC/117/2023, on execution and registration of a Deed of Sale being No. 6722 of 2013, Book No. 1 CD Vol. No. 16 pages from 1042 to 1064, registered before the Addl. District Sub-Registrar, Durgapur on 08.08.2013, complaintn/appellant side purchased one residential flat No. 402 on the 4th Floor, Block ‘Basant’ Measuring an area of 937 sq. ft. super built up area with 120 sq. ft. of covered garage on the ground floor, comprising of 2 bedrooms, 1 drawing cum dining room, 2 bathrooms, one kitchen, one verandah on the fourth floor of the said block of complex in said 937 sq. ft. of area and car parking space, against valid consideration as agreed upon between them and OPs of CC/117/2023. The said flat was raised on a complex situated in Mouza Arrah, J.L. No. 91, LR Khatian No. 2501, 2502, 2503, 2504, R.S. Plot No. 1091, 1092, 1093, 1094, 1096, 1102/1998, 1909, 1910, 1911,1912, LR Plot No. 1134, 1135, 1136, 1137, 1139, 1145, 2673, 2683, 2684, 2685 under P.S. Kankshi, Mangaldihi Gram Panchayat.
It is the specific contention of the appellant/complainants of A/62/2023 and CC/117/2023 respectively that at the time of registration of the sale deed of the above described flat, the sellers/OPs of CC/117/2023 could not complete all the works of the entire apartment and the OPs of CC/117/2023 had assured the complainants/appellants that they would complete the same, as soon as practicable and had requested the complainant/appellant to take possession of the said flat, after registration and accordingly they had taken possession of the said incomplete flat on the basis of the assurance of the OPs’ given to them on that score.
It is further asserted by the appellant/complainant side that after taking possession of such flat purchasing the same from the OPs following registration of such sale of the residential flat, the appellant/complainant had intimated the OPs through mails for several times to complete the incomplete works of their residential flat as per agreement for sale and as per Deed of Sale but the OPs avoided to complete the incomplete works of the residential flat of the complainants/Appellants. The letters sent by the concerned Secretary of the Association of the residential on that score were not entertained by the OPs in spite of their giving assurance to do the needful for completion of the incomplete works of the flats of the residential complex.
Later, finding no other alternative, the complainant/appellants had filed CC/117/2023 against the OPs before the Ld. DCDRC, Purba Bardhaman and Ld. DCDRC, Purba Bardhaman passed the impugned order dated 14.09.2023 in CC/117/2023, assessing that the CC/117/2023 is highly time barred.
Assailing the said impugned order dated 14.09.2023 of CC/117/2023, the complainants of CC/117/2023 has preferred this Appeal on 15.10.2023, praying for setting aside the impugned order of the Ld. Concerned DCDRC passed in CC/117/2023 for the reasons/grounds, as I have already reflected in this judgement, at its first paragraph.
Point for consideration
I have to assess now as to whether the impugned order dated 14.09.2023 passed in CC/117/2023 passed by the Ld. DCDRC, Purba Bardhaman is legally sustainable in the eye of law and on the other hand I have to assess as to whether and if so, how far the instant Appeal is legally entertainable or not.
Decision with reasons
I have given through consideration to the submissions of the contesting parties of this Appeal. This is forthcoming from the contentions of the appellant side that the OPs of CC/117/2023 i.e. the OPs of this Appeal had assured the appellants/complainants that the OPs would complete all the incomplete works of the flat, as mentioned in the scheduled of the Deed Sale. However, on perusal of the Sale Deed No. 6722 of 2013 executed and registered on 08.08.2013, in between the contesting parties of CC/117/2023 and the instant Appeal A/62/2023 as well in respect of the concerned plot in issue, no such assurance and/or stipulation could be found to be existing showing even any trace in that sale deed that any such assurance, as agitated by the appellant/complainant, was even given in that Sale Deed dated 08.08.2013 in respect of the flat in issue existing in between the contesting parties of this Appeal, by the OPs of this Appeal to the appellants/complainant sides.
No such stipulation, binding the OPs of this Appeal to complete the incomplete works of such flat of the Appellant/complainants, is existing in the said registered Sale Deed No. 6722 of 2013 in respect of Appellant’s flat, executed in favour of the Appellants/Complainants on 08.08.2013, from the end of the OPs of this Appeal.
It is also found that there is no existence of “Agreement of Sale” of the concerned flat as agitated by the appellants/complainants to be existing to assess the correctness of such assertion of the appellant/complainant side that the OPs of the Complaint Case and Appeal had assured the Appellant/Complainant side through that agreement that they would complete the incomplete works of the complainant/appellant flat, as early as possible or that assurance was contained in writing in the Agreement of Sale of the concerned flat of the complainant/Appellant, existing in between the contesting parties of this Appeal. Consequently, the finding of the Ld. DCDRC concerned, so reflected in the impugned order dated 14.09.2023 of CC/117/2023 on this score, is not deserving any interference here at all.
It further transpires from the executed and registered Sale Deed No. 6722 of 08.08.2013, that undenyingly is containing the signatures of the appellants/complainants, that it is contained categorically in the said Deed dated 08.08.2013 that the purchaser of the flat in issue Appellants/Complainants of CC/117/2023 and A/62/2023 had inspected their allotted/purchased flat as categorically described in that said Deed of Sale of the concerned flat and on being satisfied with the constructional works of that flat and common facilities over there provided to that flat, appellant/complainants have taken possession of that flat allotted for them. So, this can be assessed that on 08.08.2013/05.09.2013, or soon around that period they had taken possession of their allotted flat and at that time, in the absence of any cogent ground to the contrary, they were satisfied with the constructional works and common facilities provided in their allotted flat.
It appears from the available materials on record that for the first time, letter dated 19.11.2022, claiming completion of the incomplete works of the said premises where the flat of the complainant/Appellant side is existing, was given to the OPs of the CC/117/2023 and A/62/2023, by the representative of the Basanta Basi Resident Association and not by the complainant/appellant side. It is forthcoming undenyingly and obviously in the absence of any cogent and, legally appreciable ground to the contrary that the complainant/appellant side of CC/117/2023 and A/62/2023 had taken possession of their flat in concern on their satisfaction on 05.09.2013 and the project building was completed on 03.03.2016. So, in this backdrop since 05.09.2013 upto 19.11.2022, there remained no appreciable ground to hold that there was continuation of the cause of action seeking completion of the incomplete works of the concerned flat of the complainant/appellant specially when there was existence of acceptance of possession of the concerned flat by them, so contained in the registered Sale Deed of such flat executed on 08.08.2013, on satisfaction of the complainants/appellant and from taking possession of such flat by the complainant/appellant on 05.09.2013 which they intend to claim as the initiating time of the cause of action of the complainant of CC/117/2023, they remained silent as to their so called grievances of having possession of incomplete flat. Besides, the letter dated 19.11.2022 was reflecting nothing convincing to hold that it agitated seeking OPs taking steps for the removal of structural defects, in workmanship, quality or provisions of service in respect of the complainant/appellants purchased flat, that the OPs of this Appeal were obligated to performas per the agreement of sale of such flat to the complainant/appellant who had been found taken possession of the concerned flat on acknowledging their satisfaction to accept it as transpired vide letter dated 05.09.2013 addressed to the appellant No. 1 of this Appeal, Imtiaz Hossain.
This transpires that the Ld. Counsel for the Appellants have cited the judgement of the Hon’ble Supreme Court of India, pronounced vide Civil Appeal No. 4000 of 2019 (Samruddhi Co-operative Housing Society Ltd. VS Mumbai Mahalaxmi Construction Pvt. Ltd.
Hon’ble Supreme Court was pleased to discuss and impart light in respect of continuation of cause of action in that judgement discussing about the computation of limitation in the case of continuing breach of contract or tort and determined that in case of continuation of breach of contract, fresh period of limitation begins to run at every moment of time during which the breach continues and on the basis of this light of determination, and the Hon’ble Apex Court of India held in that cited reference that in the case cited in that reference there was obligation on the part of the promoter/respondent of that cited case to provide occupancy certificate and pay for the relevant charges till certificate has been provided to the appellant housing society and the respondent was failing to comply that obligation towards the appellants and causing breach of obligations. Besides the respondent was failing to comply its responsibility to transfer the title to the flats to the society, so being the ‘consumers’ the society sought for compensation as a recompense for the consequent liability and the Hon’ble Apex Court of India decided the case accordingly in favour of the appellant side of the said Civil Appeal Samruddhi Co-operative Housing Society Pvt. Ltd. in Civil Appeal No. 4000 if 2019 on 11.01.2022 holding that complaint of the society is maintainable.
I have my deepest regards to this cited reference and have due respect to the sagacity of the Ld. Counsels for the contesting parties of this appeal as well.
Here in this case the appellants were given possession of their residential flat allotted for them on 05.09.2013 as per the appellant’s acknowledging satisfaction to accept such possession and there is no denial of the fact from the end of the appellant side, that they were not provided with the completion certificate of the flat or the occupancy certificate of flat, purchased by the appellants from the OP.
There was no agitation forthcoming from the appellants since their taking possession of the flat from the OPs since 05.09.2013 till 19.11.2022 when for the first time it arose for providing the appellant and other plot owners certain facilities/amenitias in respect of their respective flats in the Basanta Basi complex and it further transpires that the facilities sought for by the housing Association concerned are not of that type like non delivery of title Deed of such flat or occupancy certificate of the flat of the appellant by the OPs side to treat that lacuna of the OPs as breach of obligation leading to categories such breach as deficiency in service.
The agreement for sale in this case is not produced by the appellant to categories that the alleged breaches for non-compliance of producing facilities, so agitated by the appellant, if existed then as per agreement were there in the concerned agreement such breaches, laches are to be treated as obligatory for the OPs of the complaint case to be discharged in favour of the appellants.
So, with undyingly regards to the cited reference of the appellant side, I find the factual matrix of this Appeal lends no ground to hold that the factual matrix of the referred case was alike the factual matrix of this case to justify the application of the spirit of decision of the appellant’s cited reference in this case, too. Having regard to these all, weighing the spirit of judgement of CC/89/2022 pronounced by the Hon’ble NCDRC on 24.11.2023, I find that this complaint CC/117/2023 filed on 01.09.2023 in respect of the alleged breach of obligations of the OPs, agitated for the first time on 19.11.2022 suffers from limitation as the cause of action has been agitated for the first time on 19.11.2022 in CC/117/2023 even after the complainant/appellant side’s taking possession of this flat from the OPs/Respondents side on 05.09.2013 and the same is lending ground to categories this complaint case as barred by limitation as per Sec. 69 of C.P. Act of 2019, specially when nothing significant could be found from the available materials and documents on record to hold that the cause of action of the complaint Case No. 117 of 2023 was continuing one from 05.09.2013 in respect of this complaint case to prove such alleged claim of the complainant/appellant side. .
Hence, it is
ORDERED
That the instant Appeal A/62/2023 stands rejected on contest but without cost. The order dated 14.09.2023 passed in CC/117/2023 by the Ld. DCDRC, Purba Bardhaman stands affirmed on contest.
Digitalized LCR be returned and copy be supplied free of cost as per scopes of C.P. Act now.
