Judgement

This appeal is preferred against the impugned order passed by Ld. D.C.D.R.F, Siliguri dated 16/07/2018 in connection with CC no. 89/S/2017. The fact of the case in brief is that the appellant Ramesh Agarwal and his wife Babita Agarwal has jointly purchased a flat along with a car parking space total amounting to Rs. 33,00,000 from the respondents/op vide a sale deed (Annexure D) dated 22/08/2014. The car parking space in spite of agreement and purchase deed was not provided to the appellant/complainant and for that reason, they filed a consumer complaint before the Ld. Forum, Siliguri in the year 2017. The opposite parties of that consumer complaint case had appeared before the Ld. Forum and filed two petitions dated 05/02/2018 and 26/03/2018 challenging the maintainability of the consumer complaint on the pecuniary jurisdiction ground as well as limitation ground. Ld. Forum after hearing these two petitions in presence of both parties to that case passed the impugned order dated 16/07/2018 vide order no. 10 and had adjudicated the two petitions in favour of the opposite parties. Being aggrieved with this order this appeal follows on the ground that Ld. Forum has wrongly considered the value of the flat and mis conceived regarding the pecuniary jurisdiction point and also failed to appreciate the reasonable cause of the appellants to file the case after some delays which was apparently condonable for the interest of justice.

After receiving the notice of appeal the opposite parties/respondents recorded their appearances before the Commission and appointed Ld. Advocate Milindo Paul to contest the case on their behalf. The appeal was heard in presence of Ld. Advocate of both sides.

D E C I S I O N S  W I T H  R E A S O N S

At the time of hearing the appeal Ld. Advocate of the appellants submit that actually two properties were purchased by the appellants by a single deed of convenience. The relief claimed in this case for only the second property that is the car parking space covering 150 sq. ft and on pro rata basis the valuation of the car space to be determined as 2,80,851 as total price of 33 lacks was fixed for residential flat covering 1, 612.50 sq. ft and car parking space covering 150 sq. ft. It is further mentioned that the consideration price was settled at Rs. 33,000 covering both residential flat and car space area. So, apparently the valuation of the property to be determined as 2,80,851/- for not providing car parking space and the total relief claimed by the complainant/appellant comes to Rs. 5,95,851/- and for that reason there is ample jurisdiction of the Ld. Consumer Forum to settle this consumer dispute. But Ld. Forum has failed to understand the actual position and wrongly opined that the valuation of the property exceeds the pecuniary jurisdiction of the Ld. Forum and passed the impugned order which is totally illegal and irregular in the eye of the law. Ld. Advocate of the Opposite parties/respondents vehemently opposed the arguments of Ld. Advocate of the appellants and he countered that after the judgement delivered by Hon’ble National Commission reported in 2017 (i) CPJ (2016) 4 CPR 83 where it was determined that if the aggregate of the value of the goods or services and the compensation if any claimed in the complaint exceeds Rs. 20,00,000 the forum would have no pecuniary jurisdiction to entertain a complaint.

After hearing both sides in this point of pecuniary jurisdiction this Commission found that here the appellant/complainant claimed relief to the tune of Rs. 5,00,000 approximately where the valuation of the car parking space has mentioned in the consumer complaint as Rs. 2,81,000. But there is no demarcation in the sale deed no. 6670 in respect of car parking space and the residential flat with regard to the price of the same. The total price of the two properties jointly included in the only one sale deed and the valuation of the two properties jointly assessed as Rs. 33,00,000. The Ld. Forum rightly opined that the valuation of the claimed property exceeds the pecuniary jurisdiction of the Forum that is more than 20 lacks. And for that reason, Ld. Forum has accepted the contention of the opposite parties in that case and disposed of the said petition in favour of the opposite party. We do not find any demerit in the observation of the Ld. Forum in this score regarding pecuniary jurisdiction point.

Regarding second petition that is the delay point Ld. Forum has observed that the alleged purchase took place on 22/08/2014 and the complainant/appellant ought to have come before the Forum within 2 years from the date of purchase of the flat and car parking space. But they have come after one year beyond the statutory period and for that reason the Forum observed that the delay of more than 3 years from the date of cause of action has hopelessly barred by limitation to the consumer complaint in the instant case as per provisions of section 24 A of the CP Act,1986. Ld. Advocate of the appellant at the time of hearing pointed out that the alleged sale took place on 22/08/2014 and there after he started to occupy the residential flat since then and it was assured them by the opposite parties that the car parking space would be provided within a short span of time. Thereafter repeated occasions the complainant/appellant approached the respondents to hand over the possession of car parking space to them but they have failed to hand over the possession of the same. At last they served legal notice upon the respondents on August, 2017 and thereafter lodged the consumer complaint. It is a recurring cause of action for not providing or delivering the car parking space to the buyers and it was continuous cause of action.  In support of his argument. Ld. Advocate has preferred several rulings where it was unanimously decided by the Hon’ble Upper Forums that unless and until the complainants get possession of flat or accommodations in spite of sale deed, they have got continuous cause of action.

            Ld. Advocate of the respondent submits that there was no agreement between the parties to this case regarding exclusive car parking space for the exclusive use of the appellants. Only there was provided a space in the sale deed to keep their private cars in the particular area with other flat owners but the appellants wanted to demarcate his space by erection of the garage arbitrarily which was not included in the agreement to sale or sale deed and for that reason they are not entitled to get independent and exclusive space of car parking. It is further mentioned that the cause of action in this case starts from the date of sale deed that is 22/08/2014. The appellants do not come within 2 years from the date of cause of action and for that reason the Ld. Forum has rightly observed that the consumer complaint has faced the legal bar as per provision of section 24 A of CP Act, 1986.

After going through the sale deed (Annexure C), we find sale deed no. 6270 dated 22/08/2014, the appellant has purchased two separate properties; one residential flat and another car parking space. And for both the properties they have paid Rs. 33,00,000. Therefore, it is contentious issue to be determined after recording evidence whether exclusive car parking space by that deed was promised to be delivered or not and until and unless the delivery of possession becomes complete, the cause of action always runs continuously. So, the Ld. Forum has committed a legal mistake regarding ascertaining actual date of cause of action and for that reason the disposal of petition regarding condonation of delay appears to be irregular and illegal not vested to the jurisdiction of the Ld. Forum. Moreover, at the time of admission hearing of this case Ld. Forum has admitted the consumer complaint after condoning the delay and thereafter issued the process of this case. So, in later stage the Ld. Forum have no authorized jurisdiction to sit on its own order.

            Thus, in our considered opinion Ld. Forum has deliberately committed a judicial mistake to hold that the consumer complaint had already barred by law of limitation as provided in CP Act, 1986. Therefore, in our opinion, the appeal be and the same may be allowed in part and the rest part of the impugned order may be confirmed.

    Hence,

it is ordered: -

That the appeal be and the same is allowed in part on contest without cost. The order of Ld. Forum vide order no. 10 dated 16/07/2018 Ld. D.C.D.R.F, Siliguri in CC no. 89/S/2017 in respect of petition of the opposite party dated 26/03/2018 is hereby confirmed.

            The same order no. 10 dated 16/07/2018 of Siliguri Forum CC no. 89/S/2017 in respect of the application of opposite party of that case dated 05/02/2018 is hereby set aside.

The appellants are permitted to prefer a consumer complaint before the appropriate Forum having jurisdiction more than 20 lacks under CP Act, 1986 for redressal of their grievances within a month from the date of receiving the copy of the order of this appeal.

Let a copy of the order be supplied to the parties of this case free of cost.