SRI SUBHRA SANKAR BHATTA, PRESIDING MEMBER
The present complaint case is at the instance of the Complainant viz. Sri Sudhir Kumar Gupta under Section 12 of the Consumer Protection Act, 1986 (in short herein after referred as “The Act”) on the allegations of gross negligence, deficiency in service and unfair trade practices on the part of the Opposite Parties M/s. Millennium India Construction and others.
2. The facts of the complaint case in a nutshell, are that the Complainant had a desire to purchase a flat and accordingly he approached before the OP/Developers in the month of November, 2014 for purchasing a residential flat measuring 1650 Sq.ft. on the entire third floor situated at the G+4 storied building of the premises no. 348/4 N.S. C. Bose Road (Mailing Address 1/61, Naktala Govt. Scheme-I) P.O.-Naktala, P.S.–Jadavpur (at present Netajinagar) under Corporation Ward No. 100 Kol-700047.
3. Further case of the Complainant, is that, it was agreed that the Developer/OPs herein shall complete the construction of the proposed building shortly and make the said schedule mentioned flat fit for habitation in accordance with the proposed building plan and provide all the facilities in accordance with the terms of the agreement. It was further agreed that the cost of the scheduled mentioned flat along with the garage shall be Rs.70 Lakhs. At the time of signing the agreement the Complainant paid Rs. 14 Lakhs as earnest money by cheque. The rest amount of 56 Lakhs was paid through IDBI Bank Limited by taking finance vide cheque being no. 04852 dated 07.11.2014 amounting to Rs.56 lakhs.
4. Further case of the Complainant, is that, a deed of conveyance for the scheduled flat along with the car parking space in question was executed and registered on 05.11.2014 by the vendors/Opposite Party herein in favour of the Petitioner/Complainant by receiving the entire consideration money.
5. It has been alleged by the Complainant that immediately after executing the deed of conveyance the Opposite Party took time to deliver possession of the flat in question on different pretext. Nearly three years have been elapsed but the Developer/Opposite Party did not hand over possession of the flat in question to the Complainant. It is the specific case of the Complainant that he booked the scheduled flat in question by way of finance from the IDBI Limited Company of India and the Complainant has to pay regular EMI and interest from time to time to the IDBI Limited.
6. Being aggrieved by and dissatisfied with the action of the Opposite Party the Complainant sent a notice on 10.12.2018 to the Developer/Opposite Party requesting him to complete the incomplete works of the flat in question and to hand over possession of the flat in question at an early date. It has been also alleged that despite receipt of the said notice the Opposite Party neither responded nor handed over physical possession of the flat in question along with the garage in favour of the Complainant and did not also execute the deed of conveyance on receipt of the arrear consideration money.
7. Further case of the Complainant, is that, the Opposite Party should hand over physical possession of the flat in question along with the garage alternatively the Opposite Party should be directed to refund Rs. 70 Lakhs along with 15% compound rate of interest and the Opposite Party should also pay compensation for such unfair trade practices. According to the Complainant the cause of action for the present complaint case arose within the jurisdiction of the Ld. State Commission as and when the Complainant issued a letter on 10.12.2018 and thereafter the cause of action is still continuing on day to day basis. It has been also contended that the present complaint case has been filed within time (i.e. after the issuance of the said letter). The Complainant has prayed for relief/reliefs as sought for in paragraph no. 17 of the petition of complaint.
8. On 20.03.2019 Opposite Party Nos. 1, 2 3 entered appearance by filing Vokalatnama along with the written version but Opposite Party No. 4 did not turn up to file the written version. Consequently, OP No. 4 was debarred from filing written version. On 25.08.2023 the Complainant filed show cause as directed by the Hon`ble State Commission and the said show cause was accepted being satisfactory and the next date was fixed for final hearing of the complaint case. On 16th April, 2024 none appeared on behalf of the Opposite Parties on repeated call and resultantly the present complaint case was fixed for ex parte hearing against all the Opposite Parties.
9. The photocopy of deed of conveyance dated 31st day of January, 2015 goes to indicate that the said deed of conveyance was executed by and between Smt. Bani Bose (1st Part) being Owner/Vendor and Sri Debasish Sarkar and Samir Kumar Halder (authorised power of attorney holder of the Owner/Vendor). It also reveals that 1) M/s. Millennium India Construction being represented by its Partners (3rd Part) were the Developer/Confirming Party of the said deed of conveyance. It further reveals that 1) Smt. Jayanti Das and 2) Smt Rekha Ghosh (2nd Part) were the purchasers of the “B” scheduled property of the said deed.
10. Annexure `A’ is the deed of conveyance dated 5th November, 2014 executed and registered amongst Smt. Bani Bose Owner/Vendor(1st Part) being represented by her constituted attorney 1) Sri Debasish Sarkar and 2) Sri Samir Kumar Halder and Sri Sudhir Kumar Gupta (2nd Part) as Purchaser. In that deed of conveyance M/s. Millennium India Construction being represented by its partners namely Sri Debasish Sarkar and Sri Samir Kumar Halder(3rd Part) were the Developers/Confirming Parties. Curious enough to note here that no power of attorney has come on record from the end of the Complainant during the course of trial.
11. Annexure-A is out and out a sale deed by dint of which the Owner/Vendor transferred the scheduled B property to Sri Sudhir Kumar Gupta Purchaser/Complainant. In the recital of the deed of conveyance it has been categorically written that the Owner/Vendor and the Developer both jointly transferred the B scheduled property in favour of the Complainant free from all encumbrances. It is evident from the deed of conveyance that the Complainant/Purchaser paid Rs. 70 Lakhs for the purpose of purchasing the B scheduled flat and open car parking space.
12. It has been alleged by the Complainant that after executing and registering the said deed of conveyance the Opposite Party took time to deliver possession of the flat in question by showing different pretext and in this process three years have already been lapsed. It is the case of the Complainant that being aggrieved by and dissatisfied with the action of the Opposite Party he sent a notice on 10.12.2018 to the Developer/Opposite Party requesting them to complete the incomplete works of flat in question and to deliver possession of the said flat at an early date. But despite receipt of the said notice the Opposite Party did neither respond to the same nor handed over physical possession of the flat in question and the car parking space.
13. It is crystal clear from the case record that the complainant instituted the present complaint case before this Hon’ble State Commission on 14.12.2018 under section 12 of the Consumer Protection Act, 1986 praying for certain relief/reliefs as sought for in paragraph 17 of the petition of complaint.
14. In paragraph no. 13 of the petition of Complaint the complainant has categorically stated that the cause of action for the present suit arose on 10.12.2018 (the date of sending the letter to the developer) and thereafter the cause of action is still continuing on day to day basis.
15. Admittedly, the deed of conveyance for the flat in question along with the car parking space was executed and registered on 05.11.2014 by the vendor/opposite party in favour of the Petitioner/Complainant on receiving the entire consideration amount of Rs. 70,00,000/-. It has been alleged by the complainant that despite executing and registering the deed of conveyance the opposite party took time to deliver possession of the flat in question on different pretext. Complainant has unequivocally admitted in paragraph no. 6 of the petition of Complaint that “in this process nearly three years have been passed but the developer/opposite party has not handed over the possession of the flat in favour of the complainant”. After waiting for a prolonged period the Complainant sent a notice to the developer/opposite party on 10.12.2018 requesting him to deliver the possession of the flat in question at an early date and to complete the incomplete works of the said flat. In this regard Section 24A of the Consumer Protection Act, 1986 is very much clear, exhaustive and explicit. In order to file a complaint case before the District Forum or the State Commission or the National Commission limitation period is two (2) years from the date on which the cause of action has arisen and the District Forum, State Commission or the National Commission shall not admit a complaint unless it is filed within two (2) years from the date of accrual of the cause of action.
16. Here in the present case the Complainant has filed the present complaint petition on 14.12.2018 i.e after the long expiration of the period of limitation. The deed of conveyance was executed and registered on 05.11.2014. Reasons best known to the Complainant as to why he kept himself mum for a prolonged period despite the execution and registration of the deed of conveyance. On 05.11.2014 mere sending an advocate’s notice after the expiry of the limitation period cannot be and should not be considered that the cause of action is still continuing. Astonishing fact is that the opposite party/developer didn't send any reply to that advocate’s letter dated 07.12.2018. Moreover, the deed of conveyance goes to establish that it was an out and out sell deed. The deed of conveyance speaks a lot about the trustworthiness of the Complainant`s case.
17. Considering all aspects from all angles and keeping in mind the provision of Section 24A of the Consumer Protection Act, 1986 and regard being had to the submission of the learned counsel for the complainant we have no option left but to hold that the complainant did not file the present complaint case within the stipulated period of limitation as provided under Section 24A of the Consumer Protection Act, 1986. Thus, being the position of law we are constrained to conclude that the present complaint case filed at the behest of the Complainant is liable to be dismissed being hopelessly barred by the law of limitation.
18. Resultantly, the present complaint case fails.
19. The complainant is not entitled to get any sort of relief/reliefs as prayed for.
20. Hence,
O R D E R E D
That the present complaint case being CC No. 888/2018 be and the same is dismissed on contest against opposite party nos. 1, 2, 3 and ex parte against opposite party no. 4 but considering the attending circumstances without any order as to costs.
21. Interim order, if any, be vacated forthwith.
22. Thus, the complainant case stands disposed of.
23. Note accordingly.
