Judgment : Dt.9.2.2018

Mrs. Balaka Chatterjee, Member

            This petition of complaint is filed under section 12 of C.P.Act by Suprakas Majumder alleging deficiency in service on the part of the opposite party Mr. Mohan Lal Mitra.

            Case of the Complainants, in brief, is that a Deed of Indenture has been executed by and between one Gobardhan Seal as owner/vendor, Sri Soumitra Majumder and Sri Suprakas Majumder as purchasers (who are Complainants herein), K M Griha Nirman Pvt. Ltd. represented by its Director, Sri Mohan Lal Mitra as Developer/confirming party in respect of a flat being Unit No.301 on the 3^rd floor of a building at premises No.238, Ho-Chi-Minh Sarani, P.S.-Parnasree, Kolkata-700 061 together with undivided proportionate share of land along with one open car parking space on the ground floor measuring more or less 120 sq.ft. and the said Deed of Indenture was registered on 31.07.2014 before the ADSR at Behala in Registered Book No.1, C.D. Volume number 21, pages from 2547 to 2568 being 06577 for the year 2014. Possession of the said flat and car parking space was handed over to the Complainants vide a possession letter dt.29.06.2014. The Complainants have alleged that though they have paid Rs.1,84,000/- to the developer for car parking space they could not park  private car in a particular side of the car parking space and therefore, requested the opposite party on several occasions and lastly by letter dt.30.9.2016 to deliver the actual possession of the car parking space of 120 sq.ft. in a particular side of the ground floor but the opposite party used to show the common usual space for all flat owner for parking private cars. Hence the Complainant has prayed for relief as direction upon opposite party to show particular space for car parking to the Complainants in a particular side, to pay Rs.30,000/- and Rs.1,00,000/- towards litigation cost and compensation respectively and to deliver receipt of service tax of Rs.1,84,000/- alternatively refund the said amount with interest @ 10% p.a.

            The opposite party contested the case and filed written version stating, inter alia, that the complaint is not maintainable and barred by limitation as the case has been filed after lapse of almost three years from the date of delivery of possession. The opposite party specifically stated that the delivery of possession has been done in July, 2014 and since then the Complainants have been enjoying the flats and open car parking space in the said premises and did not raise any issue in respect of the same except issuing a letter on 3^rd November, 2016, wherein the Complainants falsely mentioned that the open car parking space had not been ready. It is further stated that the car parking space has been arranged among the co0owners of the flat, therefore the OP has no scope to interfere with the same. Accordingly, the OP prays for dismissal of the petition of complaint with cost.

            In course of argument both the parties narrated the facts mentioned in the petition of complaint and written version respectively.

            Points for determination

1. Whether the complaint is maintainable in its present form.
2. Whether there is deficiency in service on the part of the OP.
3. Whether the Complainant is entitled to any relief as prayed for.

Decision with reasons

Point No.1 – The Complainants have stated in their petition of complaint that on 31.07.2018 the indenture of sale has been registered in respect of their flat along with one open car parking space. It is stated by the Complainants that delivery of possession of the said flat and car parking space took place prior to registration of the deed of indenture. The process of transfer of title of any property concludes registration of deed of sale in respect of the said property.

Section 24(A) of the C.P.Act provides that “(1) the District Forum shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

 Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (l), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period.

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.

However, in the instant case the Complainants have filed this case beyond the statutory period. The Complainants have mentioned that Complainant No.1 made a correspondence to the OP on 2.11.2016 and mentioned the same as cause of action. But, it is well settled that mere serving a letter upon the OP does not create cause of action and, therefore, we find no sufficient cause is shown towards condonation of delay and, moreover, no petition for condonation of delay has been filed along with the petition of complaint.

In such view of the matter, we are of opinion that the instant petition of complaint is barred by limitation.

            Point Nos.2 & 3 – Since the point No.1 has been answered negatively, there is no scope to enter into the merit of the case and to determine the point Nos.2 & 3.

            Considering the circumstances we pass no order as to costs.

            In the result, the petition of complaint does not succeed.

            Hence,

ordered

           the instant Consumer Complaint being No.CC/112 of 2017 is dismissed on contest being time barred but without any order as to costs.