Order no. 5 Date:22.04.2024
The Misc. Application dated 24.11.2023 filed by the opposite party no.1/petitioner is taken up for hearing along with its written objection filed by the complainant.
Ld. Advocate for the opposite party no.1/petitioner submits that the complainants have filed CC/173/2021 against opposite parties on allegation of deficiency of service. The Ld. Advocate for the opposite party no.1/petitioner is the developer of the project ‘THE RAIN FOREST’ by virtue of registered Development Agreement dated 22.11.20213 between the land owner and the petitioner. The land owner also executed a registered power of attorney in favour of the petitioner/developer. On 11.04.2017 the complainants entered into an agreement for sale to purchase a flat being no.8-9/A on the 9th floor of Block no.8 in the residential complex ‘THE RAIN FOREST’ for a total consideration of Rs.49,06,307/- (Rupees forty nine lakhs six thousand three hundred and seven) only and the complainants paid part consideration amount by obtaining financial assistance from Central Bank of India. According to the opposite party no.1/petitioner, the developer shall not be held responsible under clause 16.1 of the said agreement for delay in construction owing to ‘force majeure’. According to the petitioner, due to pandemic situation of Covid 19, the work of construction of the project suffered from delay and as per terms and conditions of the agreement for sale the opposite party no.1/petitioner cannot be held responsible for the same.
The opposite party no.1/petitioner further submits that the concerned Central Bank of India issued notice under SARFAESI Act, 2002 demanding possession of the secured asset and filed a case being no.OA/193/2021 before the learned DRT-I, Kolkata. Hence, as per section 34 of the said Act, the Learned Commission could not have any jurisdiction to try and entertain the complaint case. Therefore, the case is not maintainable in the eye of law.
In reply Ld. Advocate for the complainant submits that in CC/173/2021 the evidence of both parties have already been completed and the points taken by opposite party no.1/petitioner regarding maintainability of the complaint case can only be adjudicated on the basis of evidence of both the parties. Therefore, the question of maintainability of the complaint case can be adjudicated at the time of final disposal of the case of the basis of evidence led by both parties.
On scrutiny of CC/173/2021 it appears evidence of both the parties have been completed. After completion evidence of both the parties the opposite party no.1/petitioner preferred the instant Misc. Case alleging the complaint case is not maintainable in law.
The points raised by the opposite party no.1/petitioner is a mixed question of facts and law which are required to be adjudicated on the basis of evidence of both the parties. The evidence of both the parties have already been completed. So, it will be prudent to adjudicate the question of maintainability of the case on the basis of evidence of both the parties to the suit at the time of final disposal of the case.
Considering the above discussion, the Misc. Application dated 24.11.2023 stands disposed of on an observation that the maintainability of the complaint case shall be adjudicated at the time of final hearing of the complaint case being no.CC/173/2021.
