This is an application u/s.12 of the C.P. Act, 1986.

          Complainants by filing this complaint has submitted that they purchased one flat measuring 850 sq. ft. on the 2^nd floor East side of the case premises being No.97/5A, Suren Sarkar road, Word No.33, P.S. Beliaghata, Kolkata – 700 010 and final deed of conveyance was executed by the OPs/Developers and sent on 09-04-2001 and thereafter, complainants got possession and mutated their name in the corporation on 03-09-2002 and have been possessing the same.

          Subsequently, on 07-09-2002 developer Tirumala Steel Pvt. Ltd. and their director informed the flat owners including the complainant that they wanted to construct another flat as per Municipal permission on the 3^rd floor and for constructing the said new flat if any damage is caused to the other flat owners that shall be repaired and proper remedy shall be made by the OPs and to that effect that letter dated 27-09-2002 was issued in favour of the complainants.

          Subsequently, the flat was constructed and Biswanath Paul is possessing the same but at the time of constructing the said flat several damages were caused and at the same time the roof of the complainants’ flat has been damaged and during rainy season water is oozing from the roof and falling inside the flat of the complainants for which the complainants’ different types of domestic articles including bedding, fixtures are being damaged.  That matter was reported to the OPs at t he same time the right of the complainants to use the roof has been completely closed, however, that Biswanath Paul and the OPs are using the roof including other fixtures of the flat depriving the complainants and other flat owners.  Matter was reported to the OPs but OPs did not take any step for which the matter was reported to the local Borough Chairman.  Thereafter, complainant sent a RTIs to KMC wherefrom they came to learn that in between 2001 to 21-02-2014 sanctioned plan was not revised and thereafter, it was reported to the OPs but they did not give any proper relief and in the above circumstances, that continuous negligence and deficient manner of service on the part of the OPs complainants have prayed for certain relief and redressal.

          On the other OP2 submitted by filing written statement that the present Company is not in existence and same has been dissolved in the first part of 2013 and after completion of the entire flat same has been transferred in favour of the Flat Owners’ Association and the present complainant purchased the flat by registered deed of sale on 09-04-2011.  They have been possessing the same and for the sake of the argument if it is admitted that any such damages were caused that was caused in 27-09-2002 and thereafter, complainants were sitting idle and cause of action arose after completion of the 3^rd floor but present complaint is filed first after lapse of 13 years and that is on 15-08-2014.  So, the present complaint is barred by limitation and at the same time there is any relationship in between the complainants and the OP as consumer and service provider.  In view of the fact, this dispute is not related to housing construction and at the same time complainants received possession in good condition, complainants mutated his name in the year 2002, have been possessing the same, there is no complaint about construction or delivery of possession or about registration of flat or about any other matter or way, completion certificate or about registration of deed etc.  As per contract(agreement to sale) OP discharged his all responsibilities, performed his duties, complainants have no grievances about that.  Further it is submitted that the entire property has been transferred to the Flat Owners’ Association, so, if there is any grievance against Biswanath Paul about his maintenance of the flat and roof etc. in that case it shall be decided by the Flat Owners’ Association because it is their domestic dispute.  It is further submitted that if it is found that roof has been closed by Biswanath Paul it is completely a civil dispute and complainants may file civil dispute before a Civil Court and before that they may file such complaint before the Flat Owners’ Association because complainant is also one of the members of the Flat Owners’ Association and such a case may be filed to the proper Forum at the same time after lapse of 13 years such sort of grievance cannot be entertained by this Forum and Forum has no jurisdiction to decide it and for which the complaint should be dismissed.

Decision with Reasons

After proper consideration of the complaint and written version and particularly the letter dated 27-09-2002 we have gathered that complainants were informed by the OP on 27-09-2002 that as per permission of the Corporation they started to construct another flat on the third floor that is above the flat of the present complainants and OP assured the complainants if any damage is caused for which construction that shall be repaired and it is of the year 27-09-2002.  Now, the question is on which year that flat was completed that is the newly constructed flat of Biswanath Paul from the letter of the complainant dated 16-11-2013 (Annexure-D) it is clear that in the year 2002 disputed flat of the Biswanath Paul purchased that flat which is situated on the roof of the present complainant and Biswanath Paul purchased it on 2002 and Biswanath Paul has been possessing the same but in the letter of the complainants (Annexure-D) there is no explanation why complainants waited since 2002 till filing of this case on the contrary in the said letter it is mentioned in the month of August, 2013 he found that water is oozing from the roof and his domestic house articles and beddings were damaged.

          So, from the content of the said letter of the complainants Annexure-D dated 16-11-2013.  It is clear that in between 2002 to 2013 even after purchase of the 3^rd Floor flat by Biswanath Paul no problem was faced by the complainants and no damage was caused for construction of the said floor or about using of the said roof there was no complaint.

          Considering the above fact it is clear after transfer of the entire premises to the flat owners complainants faced some problems since 2013 when it is a matter to be decided by the Flat Owners’ Association and entire maintenance of the building must be done by the Flat Owners’ Association not by the developer apparently.  At the same time after considering the sale deed it is clear that Flat Owners are entitled to enjoy the roof as of their right as per sale deed.  Biswanath Paul has no authority to close it and if any problem is created by Biswanath Paul in that case it is a civil dispute in between Biswanath Paul and other flat owners and the complainants and at present no way after lapse of 13 years from the date of purchase of the present flat complainants are not the consumer under the OPs.  But whole problem as ventilated by the complainant before this Forum has become a problem or dispute in between the complainants and Biswanath Paul and other flat owners.  Regarding maintenances of the flats and premises it is the duty of the Flat Owners’ Association.  In that case complainant may file such a complaint before this Forum against the Flat Owners’ Association including other flat owners who is creating disturbance but without filing such complaint complainants had adopted a negative path when complainants have failed to prove by any cogent evidence that since her purchase in the year 2002 till the date of sending letter dated 16-11-2013 there was any problem but complainants’ own letter dated 16-11-2013 Annexure-D reveals that entire problem was faced by the complainants for the first time in the month of August, 2013, not prior to that.  So, any way this complaint cannot be entertained by this Forum because it is completely time barred u/s.24A of the C.P. Act and at the same time complainants have failed to prove that they are consumer under the OPs.

          In the result, the complaint fails.

Hence,

Ordered

That the case be and the same is dismissed on contest against OP2 on contest and same is dismissed against OPs1 and 3 in ex parte but without any cost on the ground the complaint is hopelessly time barred as per 24A of the C.P. Act and at the same time complainants are found not consumer of the OPs in present Forum.