Parties are present. Today is fixed for argument and delivery of judgement.
Accordingly heard argument and the judgement as follows hereunder is delivered before the parties.
Case of the complainant in brief is that he being a Cancer patient has purchased flat no. 2/2 of 715 sq.ft. in the first floor at 88, Banerjee Para Street, Uttarpara, Hooghly upon payment of Rs.4,37,500/- ( date of payment not mentioned, nor any payment receipt or information is disclosed) out of agreed amount of consideration of Rs.5,00,000/- by virtue of an unregistered agreement for sale dated 9th February, 2002. It is alleged by the complainant that the OP did not take any arrangement for registration of the said flat in the name of the complainant. Thus, Advocate’s notice dated 30.8.2010 has been served upon the OP asking for registration in respect of the said flat under possession of the complainant ever thereafter , registration has not been made . Ultimately, the complainant has come before us with the prayer for direction to the oP for execution and registration of a deed of conveyance with payment of compensation amounting to Rs.50,000/- including litigation cost in favour of the complainant. In order to support the case certain documents viz. unregistered agreement and Advocate’s notice with postal receipt are produced by the complainant.
The OP contested the case by filing Written version challenging that the case is and maintainable for want of cause of action , barred by law of limitation and is defective due to misjoinder of unnecessary party and non joinder of necessary party. It is also denied by the OP that the complainant was ready for registration . Rather , the complainant suppressed the actual fact towards the compliance of terms and conditions as laid down in the agreement for sale dated 9.2.2002. Thus the case would be dismissed.
Upon the case of both parties the following issues are framed in order to arrive at a correct decision.
ISSUES
Whether the case is maintainable for want of cause of action ?
Is the casebarred by limitation ?
Whether the case is defective for non joinder of necessary party ?
If the complainant is entitled to get the relief as prayed for ?
Decision with reasons :
Ld. Advocate for the complainant made his argument that inspite of making due payment and having possession in the flat in terms of agreement , the OP does not make necessary arrangement for Deed of conveyance in favour of the complainant. This is highly irregular and thereby deficiency of service caused by the Op. Thus, giving direction upon the oP in the light of the prayer made in the petition of complaint is the right solution for the case as presented before the Forum.
Strong objection raised through the argument of learned Advocate of the Op that there is no cause of action on the ground that the deed was executed long back on 9.2.2002 and delivery of the flat was done in due time. There was other conditions to be fulfilled by the complainant and in such circumstances the registration of a registered deed as prayed for is kept pending. Apart from that the complainant could have sought for relief under the particular provisions of Specific Relief Act in such a case of alleged non performance of a contract against the Op. Admittedly, delivery of possession of the flat was made immediately after completion of the same and there is no valid ground for filing this case after long
days which ultimately attracts the provisions of law of limitation. In this context, the present Consumer Protection Act,1986 contains relevant provision of period of limitation within which the complainant had to file such case . So, presentation of the case in the present form before this Forum should not be maintainable. Thus, the case has no merit against the oP and thereby the case should be dismissed.
We have carefully considered the case of both parties together with their respective argument and documents so far available on the affidavit in chief on record. It appears that the agreement for sale has been executed by the parties with the actual owners of the property on 9.2.2002 . There is no dispute as regard to the delivery of possession of the flat. Now question is that whether the case has any cause of action or within the statutory period of limitation which as a whole to be decided by virtue of material evidence on record. The petition of complaint itself goes to show that the agreement for sale was executed on 9.2.2002 and the prayer for registration thereof has been claimed before us after expiry of statutory period of limitation. No explanation has been shown for condonation of such delay on the part of the complainant at the time of
presentation of the petition of complaint. On careful perusal of the agreement for sale in question , it appears that the parties have executed the said agreement on 9.2.2002 and thereupon the complainant served Advocate’s notice dated 30.8.2010 after lapse of statutory period as stipulated U/s 24A of the C.P.Act, 1986. Once the cause of action had started running out , the same could not be prolonged or extended by any legal notice dated 30.8.2010. It is well settled principle of law that the representations or notice do/does not extend the period of limitation, although the complainant failed to disclose any probable act of pursuation before the oP in question of causing execution and registration of a deed of conveyance in favour of the complainant. Thus, this is a very consistent case like Mrs. Sangeeta Maitra –Vs- M/s M.Tech Developers reported in 2015(1) CPR 27(Goa).
Besides, on perusal of the agreement for sale it appears before us that the OP was just developer without having any ownership of the property. There in the said agreement it has come to out notice that Smt. Kamala Debi (Mukherjee) and Smt. Ratna Mala Debi (Mukherjee) are stated to be the owners of the property. If that be so the complainant failed to make them necessary parties to the petition
of complaint. Thus, it is reasonable to come to conclusion that the case is defective for non joinder of those owners as necessary parties for the purpose of procuring direction for execution of a deed of conveyance as prayed for.
Under the facts and circumstances as discussed hereinabove we cannot ignore the statement of the complainant to the effect that he has been suffering from a dreadful disease . If that be so , the complainant should be given liberty to come with petition of complaint afresh in proper manner if he so thinks . Now, the present case should fail for want of cause of action , on limitation point , for non joinder of necessary parties and in absence of sufficient cause for delay as well .
Thus, the issues are held and decided in favour of the Op.
Hence ordered
That the case be and the same is dismissed on contest without cost with giving liberty to the compliant for filing fresh petition of complaint if any, under the observation made in the recital of the judgement.
Let a copy of this order be made over to the parties free of cost.
