DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _124_ OF ___2016
DATE OF FILING : 15.11.2016 DATE OF PASSING JUDGEMENT: 11.6.2018_
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : 1. Smt. Rani Majumder, wife of Sri Asis Kumar Majumdar
2. Sri Uday Sarkar, son of late Upendra Chandra Sarkar
Both of 94/39, Sitalatala Road, P.O Nona Chandanpukur, Kolkata – 700 122.
O.P/O.Ps : Prantik Agro (P) Ltd. Through its Director , present at their office at 17K, Jadavpur East Road, Kolkata – 700 032.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
The nub of the facts leading to the filing the instant case by the complainant is that the O.P is a Developer-cum-Contractor. He launched an attractive project called “Natuntirtha” for development of land and providing basic infrastructure, pertaining to residential plot. Infatuated with the wide campaign of “Natuntirtha ” complainant paid Rs.1,00,000/- initially as booking money to the O.P. An agreement for sale was also executed on 30.05.2007 by and between the complainant and the O.P. The total consideration price of the land succinctly described in schedule to the complaint was Rs.2,50,000/-. The balance amount of consideration price was agreed to be paid in 36 monthly instalments. The O.P agreed to complete the development work within three years from the date of execution of the agreement and also to register the deed of conveyance in favour of the complainant. Full amount of consideration price was paid by the complainant to the O.P. But, “Natuntirtha”, the dream child of the O.P., did never take its flight. Repeated requests for completion of the project by the complainant also ended in smoke. Now, the complainant has knocked at the door of this Forum by filing the instant case ,praying for transfer of possession of the land in his favour and also for payment of compensation etc. Hence, this case.
The O.P is contesting the case by filing written statement, wherein it is contended inter alia that the case is not maintainable in law as it is barred by limitation. According to the O.P, the complainant did not take any step within the reasonable period of expiry of three years from the date of execution of the agreement. Time was the essence of the contract and the dispute is referable to Arbitration and, this being so, this Forum does not have jurisdiction and the case is not maintainable before this Forum.
Upon the averments of the parties following points are formulated for consideration.
POINT FOR DETERMINATION
- Is the case maintainable in Law?
- Is the time essence of the contract as alleged by the O.P?
- Is the O.P guilty of deficiency in service for not carrying on the development work etc ,as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Evidence on affidavit is filed by both the parties and the same is kept in the record. Questionnaires, replies , BNAs filed by the parties are also kept in the record for consideration.
DECISION WITH REASONS
Point no.1 :-
It is pleaded on behalf of the O.P that the case is not filed within two years of the performance of the sale agreement and as such, the case is barred by limitation. It is further argued on behalf of the O.P that there is a provision in the sale agreement to the effect that if any dispute arises between the parties in this regard, the dispute shall be referable to Arbitrator. So, Ld. Lawyer appearing for the O.P has contended that this Forum does not have jurisdiction to entertain this case.
We fail to make ourselves agreed with the view expressed by the Ld. Lawyer for the O.P. In a case where there is an agreement for development of land or for sale of flat, the cause of action is a continuing one and, therefore, the period of limitation does not begin to run until the agreement executed by and between the purchaser and the developer is fully complied with. So, the submission canvassed on behalf of the O.P that the period of limitation has begun to run immediately after the expiry of three years from the date of execution is not acceptable in Law and we feel constrained to hold that the instant case is not barred by limitation. It is also argued on behalf of the O.P that there is a provision in the sale agreement to the effect that the dispute, if any, arises will be referred to Arbitrator and that is why, this Forum does not have jurisdiction. Section 3 of the C.P Act, 1986 confers additional jurisdiction upon the Consumer Forum and regards being had to the provision under section 3 of the C.P Act, 1986, we do say that this Forum has also jurisdiction to deal with this case ,although there is a provision for reference of the dispute to Arbitration.
Point no.1 is thus primarily answered in favour of the complainant.
Point no.2,3 and 4 :-
It has been contended on behalf of the O.P that time was the essence of the contract and as the complainant did not file the instant case within the reasonable period from the date of expiry of three years from the date of execution of the agreement, the complainants is not entitled to get the relief as prayed for.
In a case of such kind,as a general rule, time is never made the essence of contract. It can be made the essence of contract only when the parties to the contract serve special notice upon another party, intimating him that the time is made the essence of contract and if the contract is not performed within that time, the contract will stand terminated. No such notice has been given by the O.P. The O.P has not filed any copy of such notice before the Forum and it is not also the case of the O.P that he served such kind of notice upon the complainant, intimating his intention to terminate the contract, if it is not performed within a specified time. So, regards being had to all these facts and circumstances, we do say that time was never intended to be made the essence of the contract in this case.
In the instant case, there cropped up some admitted facts to the surface. There is no denial of the execution of the sale agreement by the O.P. The receipt of full consideration price by the O.P from the complainant is also not disputed. There is also no pleadings in the written version of the O.P to the effect that the project has been completed by the O.P. A perusal of the sale agreement reveals that the O.P agreed to complete the projectwithin three years of the date of execution of agreement. The agreement was executed on 6.12.2006 and more than 10 years have passed away till date since the date of execution. The project of the O.P has not taken off as yet. The inability of the O.P to complete the project within the agreed period is nothing but deficiency in service. That apart, the terms of the agreement has also not been complied with by the O.P. Non-compliance of the agreement is also a deficiency in service. The complainant is still willing to take the possession of the schedule land. Consideringthe facts and circumstances of the case, we are of the opinion that he i.e the complainant is entitled to get the possession of the land along with other relief or reliefs as prayed for.
The Point nos. 2,3 and 4 are thus answered in favour of the complainant.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.Pwith a cost of Rs.10,000/- to be paid to the complainant by the O.P.
The O.P is directed to register the deed of conveyance in favour of the complainant with respect to the land described in schedule to the complaint, deliver possession of the land to the complainant and also to pay a sum of Rs.50,000/- as compensation for harassment and mental agony suffered by the complainant , within a month of this order, failing which the compensation amount will bear interest @10% p.a till full realization and the complainant is also at liberty to get the sale deed registered and recover the possession of the land through the machinery of the Forum.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
Dictated and corrected by me
President
