HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This consumer complaint case has been filed by the complainant under section 47 of the Consumer Protection Act, 2019 alleging deficiency in service and unfair trade practice adopted by the opposite parties No. 1 to 5 valued at Rs.72,50,000/-.

2. The complainant has filed this consumer complaint case praying for the following reliefs :-

“a. An Order directing the Opposite Party Nos. 1 to 5 to execute and register the Deed of  Conveyance in respect of the flat described in Schedule-“A” hereunder in favour of the Complainant after measuring the actual area of the said flat as handed over to the Complainant. 

​​​b. An Order directing the Opposite Party No. 1 and 2 to refund the excess sum of Rs.6,06,156/- (Rupees Six Lakh Six Thousand One Hundred and Fifty Six) only which amount wrongfully retained by him together with the interest of 18% p.a. from the date of receipt of the said excess amount i.e. on 15/12/2015. 

c. An Order directing the Opposite Party No. 1 and 2 to provide to the Complainant the Completion Certificate of the building being Premises No. 118, S.N. Roy Road, Mailing Address of which is 71/1, S.N. Roy Road, Police Station : New Alipore ( previously Behala), Kolkata – 700038, under K.M.C. Ward No. 119, District : South 24 Parganas. 

d(i). An order of temporary relief restraining the Opposite Party Nos. 1 to 5 and / or their men and agents and / or any other person claiming through / under them from disturbing the possession of the Complainant over the Schedule-“A” property in any manner whatsoever; and 

d(ii). An order of temporary relief restraining the Opposite Party Nos. 1 to 5 and / or their men and agents and / or any other person claiming through / under them from creating any third party interest and  / or alienating and / or encumbering and / or transferring the Schedule-“A” property in any manner whatsoever. 

e. An Order of compensation amounting to Rs.10,00,000/- for extreme harassment and mental agony of the Complainant resulting from the illegal activities and / or miscreancies of the Opposite Party Nos. 1 to 5 and their men and agents. 

f. An Order of Cost of Rs.50,000/- towards litigation expenses. 

g. Any other relief or reliefs as the Complainant may be entitled to in law and equity.”

3. Heard the Learned Advocate appearing for the complainant at length and in full.

4. We have carefully perused the complaint case wherefrom it appears to us that the opposite parties No. 3 to 5 are the joint absolute owners of the landed property situated at Premises No. 118, S.N. Roy Road, Mailing Address of which is 71/1, S. N. Roy Road, P.S. New Alipore, Kolkata – 700 038, within K.M.C. Ward No. 119, District South 24 Parganas. The Opposite Parties No. 3 to 5 for the purpose of construction of a new building on the said landed property entrusted the said property to the opposite party No. 1 Firm and opposite party No. 2 who is proprietor. As such, the opposite parties No. 3 to 5 being the owners entered into a development agreement with the opposite parties No. 1 & 2 on 05.02.2012. Subsequently, the opposite parties No. 3 to 5 signed and executed a General Power of Attorney in favour of the opposite parties No. 1 & 2 on 16.03.2012 in terms of the said development agreement for the purpose of construction and development of the said landed property. In terms of the development agreement the opposite parties No. 1 & 2 were duly entrusted to dispose of flats out of its own allocation to third party. The father of the complainant desired to purchase one residential flat on the basis of the representations made by the Opposite party No. 2 and the said flat has been described in the schedule in the petition of complaint. By virtue of an agreement for sale dated 30.09.2015 executed by and between the opposite parties No. 3 to 5 being the owner’s vendors represented through their constituted attorney, Samaresh Das (Proprietor of M/s. Hindustan Corporation, Opposite Parties No. 1 & 2 , being Developer / Confirming party to the said agreement, the opposite parties No. 1 to 5 agreed to sell the said flat as mentioned in the Schedule A to the petition of complaint. Pertaining to the said agreement for sale the father of the complainant paid a sum of Rs.72,50,000/- on different dates and Developer / Opposite Parties No. 1 & 2 issued money receipts against such payments. Last payment was made on 15.12.2015. After completion of the construction the complainant and his father were put into possession of the said flat on 15.11.2016 in part performance of the contract and since then the complainant has been in exclusive possession of the said flat.

5. The complainant and his father were given possession much less than the area which was agreed to be sold by the Opposite Parties No. 1 to 5 to the complainant. The complainant and his father on several occasions told the opposite parties No. 1 & 2 to register the said flat in favour of the complainant but the opposite parties No. 1 & 2 willfully neglected and avoided to make any arrangement or registration and measurement of the flat. The Opposite Parties No. 1 & 2 have also failed to hand over the Building Completion Certificate to the complainant.

6. The complainant has clearly and categorically stated in the petition of complaint that cause of action at first arose on 30.07.2015 when the earnest money for the said flat was paid and subsequently, on 30.09.2015, when execution of agreement for the sale of the flat was made and thereafter, when subsequent payments were made and thereafter, on 15.01.2016 when the possession of the said flat was handed over to the complainant.

7. This complaint case was filed on 20.04.2023 which reveals that after about seven years from the date of delivery of possession of the flat on 15.01.2016 to the complainant, the complainant has filed this complaint before this Commission, which is not legally permitted in view of the Consumer Complaint Act, 2019. Section 69 of the Consumer Protection Act, 2019 runs as follows :-

“69. Limitation period.- (1) The District Commission, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Commission, 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 District Commission or the State Commission or the National Commission, as the case may be, records its reasons for condoning such delay.”

8. From the aforesaid provision it appears that the provision is peremptory in nature, requiring the Consumer Commission to examine before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Commission, however, for the reasons to be recorded in writing may condone the delay in filing the complaint, if sufficient cause is shown.

9. On careful perusal of the record it appears to us that this complaint has not been filed in time. There is delay in filing the petition of complaint by the complainant. Moreover, it appears to us that this complaint is not accompanied with a separate petition praying for condonation of delay.

10. At the time of hearing on the point of admission Learned Advocate appearing for the complainant has submitted that on 24.08.2022 the complainant through the Learned Advocate sent legal notice to the opposite parties No. 1 to 5 calling them execute and register the deed of conveyance in favour of the complainant in respect of the case flat within seven days from the date of receipt of the said notice. He has further submitted that the addendum notice was issued on 22.11.2022 by the complainant through his Learned Advocate upon the opposite parties to remove the errors of the said notice dated 18.08.2022. He has further submitted that the opposite parties after receiving the notice dated 18.08.2022 and addendum notice dated 22.11.2022 have remained idle over the same with no reply from their end. He has further argued that the cause of action is still continuing as the opposite parties did not execute the deed of conveyance and also did not hand over the completion certificate as yet.

11. We fail to accept the contentions as made by the Learned Lawyer appearing for the complainant.

12. The Hon’ble Supreme Court in State of Tripura & Ors. Vs. Arabinda Chakraborty & Ors., reported at (2014) 6 SCC 460 has held the following :-

“10. In our opinion, the suit was hopelessly barred by law of limitation. Simply by making a representation, when there is no statutory provision or there is no statutory appeal provided, the period of limitation would not get extended. The law does not permit extension of period of limitation by mere filing of a representation. A person may go on making representations for years and in such an event the period of limitation would not commence from the date on which the last representation is decided.........”

13. The Hon’ble National Commission in Mahesh Nensi Shah Vs. Oriental Insurance Co. Ltd. reported at III (2006) CPJ 414 NC, has observed that :-

“no amount of correspondence between the parties can extend the period of limitation.”

14. In the present case also, this complaint case has been filed after almost seven years from the date, the cause of action arose. Even though the complainants have made several representations to the opposite parties when the letters were not responded by the opposite parties, the same cannot be considered as the date of accrual of fresh cause of action.

15. We find that this complaint is not accompanied with a separate petition praying for condonation of delay. On the date delivery of possession of the flat in favour of the complainants, the cause of action arose. Then, it was the duty of the complainants to approach before the Court of Law by filing a complaint within the stipulated period of limitation i.e. within two years from the date of cause of action. But without doing so, the complainants filed this complaint before this Commission after a long seven years from the date of cause of action without filing any separate petition praying for condonation of delay which is contrary to the provision of section 69 of the Consumer Protection Act, 2019.

16. Learned Lawyer appearing for the complainant has referred a decision passed by the Hon’ble Apex Court in connection with Civil Appeal Nos. 2382-2383 of 2022 ( arising out of SLP CC) nos. 20768-20769 of 2019) dated 23.03.2022 ( Bharati Bhattacharjee Vs. Quazi Md. Maksuduzzaman & Ors.). However, reliance on this judgment in the adjudication of complaint, facts being at variance, would be misplaced.

17. In the result, consumer complaint case being No. 54/2023 is hereby dismissed being barred by limitation and without being admitted.

18. The consumer complaint case is, thus, disposed of accordingly.