Order No. -20 Dt.-14/08/2015
Shri Asoke Kumar Das,President
Complainant’s case in a nutshell is that Ops 1&2 constructed one multi-storied building at Jalpaiguri Town area. He wanted to purchase one flat on the 2nd Floor(Back side) of that multi-storied building and ultimately he purchased that flat on payment of consideration of Rs.14,00,000/- by virtue of a registered deed of conveyance being no.1632 dt. 08/04/’11 after taking finance from Agricultural Rural Development Bank, Jalpaiguri Branch. Thereafter OPs 1&2 had let out the common passage and the ground floor of that building to Op no.3 and thereby obstructing the right to way of the occupancts of that building. He lodged complaint to the local authorities over this matter several times but in vain.
Hence, this case.
All three Ops have contested this case by filing separate W/V denying and disputing the claims and the contention of the complainant. All of them have prayed for dismissal of this case.
The specific stand of OP 1&2 is that the complainant is not a consumer as he is owner and in possession of his flat in question and that as per Sec.2(7) of Sale of Goods Act., ‘Goods’ means every kind of movable property and as the alleged disputes is concerning an immovable property and as this case has been filed after expiry of limitation period of 2 years from the date of cause of action, this case is not maintainable.
-::Points for consideration::-
1) Is the case maintainable as alleged?
2) Is the complainant a consumer?
3) Are OPs 1&2 guilty for deficiency of service and/or unfair trade practice as
alleged?
4) Is the complainant entitled to get the reliefs as prayed for?
-::Decision with reasons::-
All four points are taken up together for consideration and decision.
Seen and perused the petition of complaint,the W/V which are supported by Affidavits, the Written Arguments and the documents filed by the parties. Also perused the decision/case laws referred by the OP 1&2 in their W/A. We have hard arguments of Ld. Lawyers of both sides in full.
Now after due consideration af all these and after going through the copy of the registered deed of conveyance no.1632 dt.08/04/’11 which was executed by OPs 1&2 in favour of the complainant and the certified copy of that deed filed by OPs 1&2, we find that the flat in question which the complainant wanted to purchased was sold to him by OPs 1&2 by executing this deed of conveyance and OPs 1&2 also delivered the complainant the possession of his said purchased flat along with common space on the very date of execution and registration of that deed and that the complainant, OPs 1&2 and the witness put signature on this deed confirming sale of this flat and delivery of possession of the flat to the complainant. Sec 54 of the T.P. Act,1882 says that ‘Sale’, is a transfer of ownership in exchange of price paid or promised or part paid and part promised and that delivery of tangible in-movable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. In this view of the matter we have no hesitation to hold that the complainant is in possession of his flat in question since the date of execution and registration of his said deed of conveyance being no.1632 dt.08/04/’11. Inspite of that the complaint has filed this case and prayed for a direction upon the OPs to handover him his flat. It is to be mentioned here that in the copy of the said deed of conveyance filed by the complainant at the time of filing this case, value of his said flat is written as Rs.14,00,000/- but in the certified copy of that deed filed by OP 1&2, the value of that flat is written as Rs.10,00,000/-. Therefore we have reason to believe that the complainant has suppress the vital material fact in his petition of complaint as well as in the copy of the said deed filed along with the petition of complaint intentionally with some ulterior motive and he has not come before this Forum with clean hands. Further more, although the complainant has stated in his petition of complaint that OPs 1&2 are obstructing the right to way of the occupants of that multi-storied building but none of the occupant has came forward to support such claim of the complaint.
That apart, if the possession of the flat in question was not delivered by OPs 1&2 to the complainant on the date of execution and registration of the said deed of conveyance dt.08/04/’11, in that case the cause of action has arisen on and from 08/04/’11 and as such the complainant should have file case against OPs 1&2 before this Forum on or before 08/04/’13 i.e. within the limitation of 2 years as per provision of Sec.24A of the C.P.Act. 1986. But this case has been filed on 26/06/’14 i.e. after long expiry of the period of limitation without filing any petition for condonation of such delay of filing of this case explaining the actual cause of delay.
It is coming out from the materials on record that the complainant filed T.S. 207/2011 against the Ops in the court of Ld. Civil Judge Junior Division at Jalpaiguri for the self same matter and as the dispute was amicably settled by and between the parties to that case i.e. complaint and the OPs, that suit was dismissed for non prosecution on 05/01/’12 as per prayer of the plaintiff/complainant. We further find that since the date of execution and registration of the said deed of conveyance being no.1632 dt.08/04/’11 by OPs 1&2 in favour of the complainant, OPs 1&2 have no obligation to render any service to the complainant as per terms & conditions of that deed. So, in our considered opinion the complainant is no longer a consumer of OP 1&2 since after execution and registration of the Deed of conveyance dt.08/04/’11.
In view of our discussions made herein before we find sufficient reasons to hold that the complainant is not a consumer of OPs 1&2 as per provision of Sec 2(d) of the C.P.Act 1986 and that this case is hopelessly barred by limitation as per provision of Sec 24A of the C.P.Act. 1986. So, this case is not maintainable. The OPs 1&2 can’t be said to be guilty of deficiency in service and/or unfair trader practice as alleged by the complainant. Therefore the complainant is not entitled to get any relief in this case and this case is liable to dismissed.
All points are disposed off. In the result the case fails.
Hence, it is,
-::ORDERED::-
That the case/petition of complaint stands dismissed on contest with cost of Rs.9,000/-.
The complaint is hereby directed to pay the aforesaid cast to the OPs 1,2&3 to the tune of Rs.3,000/- each with in 30 days from this day failing which the OPs 1,2&3 shall be at liberty to realise the same by putting this order in to execution in accordance with law.
Let a plain copy of this order be supplied to the parties free of cost forthwith as per provision or Rule5(10) of West Bengal Consumer Protection Rules 1987.
