Date of Filing:-9.1.2018.

Order No. -  8                                                                                       Date : 11.04.2018

FINAL ORDER/JUDGMENT

Sri Sibasis Sarkar, Ld. President.

          The fact of the case, in brief, is that the complainant Shri Nirmal Mondal has filed the present petition of complaint u/s. 12 of the C.P Act, 1986, wherein he has stated that the opposite parties are the proprietors and partners of OM Construction. They were jointly promoting/developing one multi-storeyed building named “Malancha” apartment, situated at Ananda Para, Ward no.17, within Jalpaiguri Municipality, P.S Kotwali, P.O & District: Jalpaiguri.  As offered by the opposite parties, the complainant agreed to purchase one shop-room in the said construction for the purpose of running his business from the said shop-room.  Accordingly, one agreement for sale/ ‘binanama’ was executed in between the

Complainant and the opposite parties on 24.2.2015. The complainant paid Rs. 1 lakh only in cash to the opposite parties on 24.2.2015 as advance out of the total consideration amount of Rs. 2 lakhs as per terms and conditions of the sale agreement.  The opposite parties were required to complete the construction of the said shop-room and hand over the same to the complainant within eight months from the date of sale agreement i.e. from 24.2.2015 after receiving the balance consideration amount of Rs.1 lakh.  The complainant was always ready and willing to pay the balance amount of Rs.1 lakh.  But the opposite parties neither completed the construction of the said shop-room, nor handed over the possession of the same within eight months from the date of execution of the said agreement i.e. on and from 24.2.2015 in spite of repeated requests. The complainant had been to the office of the opposite parties on 1.10.2017 and requested the opposite parties to perform their part, but they did not pay heed to the request of the complainant.  Ultimately the complainant issued one legal notice through his advocate on 14.11.2017 which was duly delivered to O.P no.4 on 15.11.2017.  In spite of receiving the said notice the opposite parties did not perform their part which has compelled the complainant to file the present case as per prayer mentioned in the petition of complainant.

            The opposite parties are contesting the case  by filing written version denying all the material allegations of the petition of complainant contending, inter alia that the case is not maintainable in its present form and prayer. There is no cause of action for the present case. The specific case of the opposite parties is that one  ‘binanama’ or agreement to sale was executed in between the complainant and the opposite parties on 24.2.2015.  The complainant booked one shop-room on payment of Rs.1 lakh as advance out of the consideration amount of Rs. 2 lakhs. It was agreed by the parties, as mentioned in the recital of the  ‘binanama’ that the complainant will pay the remaining amount of Rs. 1 lakh to the opposite parties within eight months from the date of execution of the agreement.  On receiving the said balance amount the opposite parties will complete the shop-room and deliver possession of the same to the complainant.  It has also been mentioned in the ‘binanama’ that if the complainant fails to pay the balance amount of Rs.1 lakh within eight months from the date of agreement, then the agreement to sale will be treated as cancelled. As the complainant failed to pay the balance amount of Rs.1 lakh within eight months from the date of agreement, so as per terms of the agreement it became cancelled. Therefore, there is no existence of any valid ‘binanama’.  As such the opposite parties have got no obligation to hand over possession of the shop-room in question to the complainant after the expiry of eight months from the date  of execution of the ‘binanama’. Therefore, there is no cause of action to file the present case and accordingly the case is liable to be dismissed with costs.           

            Considering the rival pleadings of both the parties the following points have been framed.

                                     POINTS FOR CONSIDERATION :-

1)         Is the case maintainable in its present form and prayer?

2)        Is there any cause of action for the present case?

3)        Is the case barred by law of limitation   ?

4)        Was there any  deficiency in service on the part of the opposite parties ?

5)         Is the complainant entitled to get any relief, as prayed for ?

6)         To what other relief or reliefs is the complainant entitled ?    

                                       DECISION WITH REASONS :-

            In the instant case neither the complainan , nor the opposite parties  adduced any oral evidence. They also did not file any affidavit-in-chief. However, both the parties submitted before the Forum to pass final order/judgment on the basis of the petition of complaint supported by affidavit along with the documents annexed therein and the written version supported by affidavit along with documents annexed therein treating them as their respective evidence on affidavit. Accordingly, as the present case is triable by summary procedure, so we accepted the petition of complaint  along with the documents annexed therein as the evidence on affidavit on behalf of the opposite parties. We have also carefully perused the B.N.A filed by both the parties and the decision cited by both of them. We have also heard argument of both parties in full and at length. 

POINT NOS.1, 2 AND 3 :-

            All these three points are taken up together for the sake of convenience and combined discussions. It was submitted by the ld. lawyer for the opposite parties that as per  terms and conditions of the agreement to sale, there is no existence of sale agreement in between the parties.  As such there is no cause of action for the present case and accordingly the case is not maintainable. The ld. Lawyer for the complainant raised objection.

            It is the admitted fact of both the parties that one agreement for sale/ ‘binanama’ was executed in between the complainant and the opposite party on 24.2.2015.  The complainant booked one shop-room from the opposite parties on payment of Rs.1 lakh as advance out of the consideration amount of Rs.2 lakhs.  From the recital of the ‘binanama’ executed in between the parties, it has been specifically mentioned that the opposite parties after receiving the balance amount of Rs.1 lakh from the complainant,  will complete the construction of the shop-room in question and on completion of the shop-room they will hand over possession of the same to the complainant. It has also been specifically mentioned that if the complainant fails to pay the balance amount of Rs.1 lakh within eight months from the date of execution of the agreement for sale/ ‘binanama’ the said ‘binanama’ will be treated as cancelled. So, as per terms and conditions of the ‘binanama’, the complainant was required to pay the balance amount of Rs.1 lakh to the opposite parties within eight months from the date of execution of the ‘binanama’ .  The said ‘binanama’ was executed on 24.2.2015.  So, it was the duty of the complainant to pay the balance amount of Rs. 1  lakh to the opposite parties within 24.10.2015. There is no evidence before the Forum to believe that the complainant was ready and willing to pay the balance amount of Rs. 1 lakh to the opposite parties .  In the absence of any such evidence we must hold that as per terms and conditions of the ‘binanama’ it has been treated as cancelled.  So, in the absence of any valid agreement for sale/ ‘binanama’ we must hold that there is no cause of action for the present case and accordingly the present case is not maintainable. 

            From the recital of the agreement for sale/ ‘binanama’ we find that it has been clearly stated that the complainant should pay the balance amount of Rs.1 lakh to the opposite parties within eight months from the date of execution of the ‘binanama’ and on receiving the said balance amount of Rs. 1 lakh, the opposite parties will deliver possession of the shop-room in question after completing the construction of the same.  So, as per terms of the agreement for sale, the complainant was required to pay the balance amount of Rs. 1 lakh to the opposite parties within eight months from the date of execution of the ‘binanama’ i.e. 24.2.2015.  According to the complainant he was ready and willing to pay the balance amount of Rs.1 lakh within eight months from 24.2.2015 i.e. within 24.10.2015, but the opposite parties did not perform their part by delivering possession of the shop-room in question to the complainant. So, for the sake of argument if we believe that the complainant was ready and willing to perform his part within eight months from the date of ‘binanama’ i.e. within 24.10.2015, then it can be presumed that the opposite parties refused to perform their part on 24.10.2015.  So, the cause  of action arose on and from 24.10.2015.  As per provisions of section 24A of the Consumer Protection Act, 1986 the case was required to be filed by the complainant within two years from the date when the cause of action had arisen. In the instant case the cause of action took place on 24.10.2015.  So, the complainant was required to file the case within 24.10.2017.  Unfortunately, the complainant has filed the present case on 9.8.2018  i.e. long after the expiry of limitation period of two years. No petition has been filed by the complainant for condonation of delay.  It has been decided by the Hon’ble National Commission in F.A. no.479 of 2014(Dr. J.S. Chahal-Vs-Karamjeet Singh) that section 24A of the Consumer Protection Act  is a mandatory requirement, which must be fulfilled before a Consumer complaint can be admitted.  It has also been decided by the Hon’ble Commission  that if no application is made for condonation of delay, the complaint is liable to be dismissed as time-barred.

            We have already found that the present case has been filed after the statutory period of limitation of two years from the date when the cause of action took place.  So, the present case is time-barred and as per decision of the Hon’ble State Commission, Punjab, the present case is liable  to be dismissed as time-barred.

            These points are thus decided against the complainant.  

POINT NO.4 :-

            Following the decision of the Hon’ble Supreme Court reported in (2007) 10, S.C.C, page 296(Ganna Mani Anasuya & others-Vs-Parvatini Amarendra Chowdhury & others),

we must say that since the complaint is barred by time and is liable to be dismissed on that count, it would be unnecessary to examine the other grounds of challenge.

            This point is thus decided accordingly. 

POINT NOS.5 & 6 :-

            From the discussions made above and in the light of our observations, we have found that there is no cause of action for the present case. We have also found that the present case is time-barred and is liable to be dismissed. As such the complainant is not entitled to get any relief, as prayed for.

            These points are thus decided against the complainant.

            As a result, the case fails.

            Hence, it is

                                            O  R  D  E  R  E  D :-    

             that the Consumer Case No.03/2018 be and the same is dismissed on contest against the O.P without costs.

Let the original documents, if any, and the extra sets filed by the parties be returned on proper receipt.

Let a plain copy of this order be supplied to the contesting parties free of cost forthwith on proper acknowledgement or be sent by speed post in terms of Rule 5(10) of West Bengal Consumer Protection Rules, 1987.