This complaint is filed by the Complainants u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not bother to hand over the peaceful khas and vancant possession of the garage space by way of demarcating the same in their favour till filing of this complaint. The Complainants have also prayed for completion certificate in their favour.
The brief fact of the case of the Complainants is that the OP-1-3 are the developers by profession and engaged with the constructional work of the building and promotion of land with a view to sale out flat, residential unit, garage etc. to the intending purchasers against receipt of due consideration money and the OP-4-12 are the landowners on whose land the questioned multi-storied storied building was erected by the developers.
During pendency of the construction works of the multistoried building the OP-1-3 invited the customers at large to sale out the flats to the intending purchasers. At the relevant point of time the Complainants were in search of one residential unit/flat for the purpose of their use as well as their family members and accordingly they got information that the constructional work is going on therein. So being interested the Complainants contacted with the OP-1-3 and expressed their desire to purchase the same. After inspection of the property and perusal of all the papers relating to the property and also being convinced by the said OPs the Complainants became agreed to purchase and the OPs also agreed to sale out one flat/residential unit being no-3B on the 3rd Floor with ceramic tiles flooring and lift facilities having a super built up area of 772 square feet more or less consisting of 2 bed rooms, 1 open kitchen, 1 dining cum living space, 2 toilets and 1 balcony together with 1 covered garage on the ground floor with cemented flooring measuring super built up area of 120 square feet more or less as contained in the building known as ‘SONARTORI’ in Block-III at a total consideration money of 13,96,000/-. Accordingly an agreement for sale was executed by and between the Complainants and the OPs on 29.07.2011 under certain terms and conditions. As per the terms and conditions of the agreement for sale the Complainants have paid the entire consideration money for the flat along with garage space in favour of the OP-1-3 and after receipt of the payment the OPs have also issued money receipt in their favour. The OPs have also handed over the possession of the said flat to them. Subsequently the OPs have also executed and registered the deed of conveyance in respect of the flat as well as garage on 04.02.2015 without demarcating the same and the Complainants on good faith agreed to accept the same. Thereafter upon repeated request made by the Complainants the OP-1-3 have issued the Possession letter dated 14.03.2015 in favour of the Complainants in compliance with the terms and conditions of the agreement for sale in respect of the schedule property. It is pertinent to mention that at the time of booking the flat the Complainants have also booked one covered garage on the ground floor with cemented flooring measuring about 120 square feet more or less, but the OP-1-3 have only handed over the peaceful and vacant possession of the flat in their favour and failed to handover the peaceful and vacant possession of the garage after demarcating the same. The Complainant went at the office of the OPs on several times and requested them to hand over the peaceful and vacant possession of the demarcated garage being no-49 in their favour, but the OPs have intentionally and deliberately failed to hand over the peaceful and vacant possession of the demarcated garage within the specified time as mentioned in the agreement for sale. However on 22.03.2017 the OP-1-3 have issued one formal Allotment cum Possession of Car Parking Space no-49 against the flat no-3B, Block-III in the project SONARTORI, Hatiara, Sulanguri, Gram Panchayat no-2, District-24 Parganas (North), but did not hand over the peaceful and vacant possession of the demarcated garage to the Complainants being no-49. All on a sudden in the month of September, 2019 the Complainants surprised to see that the garage space is occupied by someone else and one car is parking therein, the Complainants got knowledge that the car belongs to another flat owner. Then the Complainants contacted with the OP-1-3 and wanted to know why some other flat owner is using to park his car in the garage, which is already allotted and registered in their names, but the OPs have failed to give any reasonable answer and tried to avoid the Complainants. Then and there the Complainants went to the local police station and lodged a GDE dated 21.09.2019 to that effect. The Complainants went to the OPs time and again asking to remove the said car from the parking space which is allotted and registered in their names, but no fruitful result had been yielded. This is a gross negligence and deficiency in service on the part of the OP-1-3 as they have permitted and allotted the same car parking space in favour of different flat owner. It is necessary to mention that at the time of execution of agreement for sale the OPs have also promised to hand over the copy of the completion certificate in favour of the Complainants, but till filing of this complaint the OPs have failed to provide the completion certificate in their favour. On several times the Complainants have tried to mitigate the dispute, cropped up by and between them and the OP-1-3, but to no effect as the OPs did not show their interest. Due to above misconduct, deficiency and negligence on behalf of the OP-1-3 the Complainants have been suffering from mental and physical agony, financial harassment for a prolonged period. As the OPs did not take any step to redress the grievance of the Complainants, hence having no other alternative the Complainants have approached before this Ld. Commission by filing this complaint praying for direction upon the OPs either jointly or severally to handover the peaceful and vacant possession of the garage space by way of demarcating the same in their favour, to provide the completion certificate, to pay compensation to the tune of Rs.2,00,000/- due to mental agony and harassment and litigation cost to them.
After admission of this complaint on 16.03.2020 direction was given to the office of this Ld. Commission for issuance of notices upon the OPs. Date was fixed for Service Return of the notices on 15.04.2020. But due to Lockdown declared by the Government of India on account of severe outbreak of Corona Virus, the office could not issue the notices. On 01.10.2020 the Ld. Counsel for the Complainants had prayed for liberty to issue the notices upon the OPs on behalf of the Complainants. Upon considering the prayer liberty was given to the Complainants and date was fixed on 28.12.2020. On 28.12.2020 no postal track report was forthcoming from the end of the Complainants; hence further date was given on 18.01.2021. Subsequently it was found that the OPs have received the notices, however in the interest of Natural Justice time was provided to the OPs for filing written versions. On 08.04.2021 as the OPs did not turn up to contest the complaint either orally or by filing written version inspite of receipt of the notices, the Ld. Commission was pleased to pass an order that the complaint will run exparte against all the OPs. The Complainants got opportunity to adduce their evidence. The Complainants have accordingly adduced evidence on affidavit along with BNA. On the date of final argument none was present on behalf of the OPs.
We have carefully perused the petition of complaint; documents, evidence and BNA filed by the Complainants and heard argument at length advanced by the Ld. Counsel for the Complainants. It is seen by us that the moot point which is required to be adjudicated upon as to whether the Complainants have already possessed the demarcated car parking space or not.
It is noticed by us that the Complainants have entered into an agreement for sale with the OP-1-3 for purchasing one flat for residential purpose along with one covered car parking space at the project namely ‘SONARTARI’. IN view of the terms and conditions of the agreement the Complainants paid the entire consideration money to the OP-1-3 and upon receipt of the entire amount the OP-1-3 have executed and registered the deed of conveyance in respect of the specified flat along with the covered car parking space on 04.02.2015 in favour of the Complainants. On 14.03.2015 one possession letter was issued by the OPs in favour of the purchasers in compliance with the terms and conditions of the agreement for sale. The allegation of the Complainants is that though the OP-1-3 have handed over the peaceful and vacant possession of the flat, but failed to hand over the peaceful and vacant possession of the garage by way of demarcation. In this respect we are to mention to the document (Running Page-70) submitted by the Complainants namely-
Allotment Cum Possession of Car Parking Space no-49 against Flat no-3B in Block-III in Project-“SONARTORI’, Hatiara, Sulanguri, Gram Panchayat no-2, 24 Parganas (North)
From where it is evident that on 22.03.2017 on behalf of the developers said possession letter was issued to the Complainants in respect of the car parking space out of the Developer’s Allocation. The nature and parking number was mentioned as “Covered Car Parking Space” and ‘49’. On behalf of the Complainant no-1 Mr. Krishanu Mitra the possession letter of the car parking space was received on 22.03.2017 by putting his signature. It was written that ‘We, hereby confirm and also acknowledge having taken possession of covered car parking space no-49 in the ground floor project SONARTORI, Hatiara, Sulanguri, Gram Panchayat no-2, 24 Parganas (N)’.
Therefore it is clear from the said signature that the Complainant no-1 being satisfied with the covered car parking space had acknowledged the same and as the Complainants have once received the covered car parking space from the OP-1-3 putting signature on the possession letter for the covered car parking space, hence in our view the OP-1-3 have discharged their liability and responsibility in pursuance of the agreement for sale, executed by and between the OP-1-3 and the Complainants. Moreover in respect of the covered car parking space deed of conveyance in favour of the Complainants have already been executed by the OP-1-3, which is duly admitted by the Complainants and the copy of the Deed also denotes the same. So after execution of the sale deed and handing over the possession letter (duly signed) in respect of the covered car parking space, there should be no case against the OP-1-3 in view of the terms and the conditions of the agreement for sale and in our view the OP-1-3 have duly complied with the terms and conditions of the agreement for sale. Therefore we do not find any deficiency in service as well as unfair trade practice against the OP-1-3. No allegations have been made out by the Complainants against the OP-4-12 within the four corners of the petition of complaint.
The further allegation of the Complainants is that the covered car parking space allotted to them is used by another flat owner as he is keeping his vehicle in the said car parking space. It is further stated by the Complainants on several times they told the OP-1-3 regarding such use of their car parking space by another person, but the OP-1-3 did not take any step to mitigate their grievance. In this respect we are to say if their covered car parking space is used by any other flat owners, then the Complainants are at liberty to take legal step against the said person who is using their car parking space in an unauthorized manner, but after handing over the property along with the car parking space to the Complainants, the OP-1-3 have no legal locus-standi to interfere into the private dispute. If the OP-1-3 did not take any step to resolve the dispute, we also do not find any deficiency in service on behalf of the OP-1-3.
Now we are to discuss on an important legal issue as to whether this complaint is at all barred by the law of Limitation in view of the Section 24A of the Consumer Protection Act, 1986 or not.
As this complaint is filed under the C.P. Act, 1986, hence this point should be adjudicated upon in view of the said Act, 1986. In the Section 24A it is enumerated as follows:-
“24A (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period.
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.”
Having regard to the abovementioned Section we are to say that admittedly the Complainants acknowledged the covered car parking space on 22.03.2017 by putting signature of the Complainant-1 from the OP-1-3. Inspite of receipt of the said possession letter the Complainants have filed this complaint being dissatisfied as demarcated car parking space was not provided to them. But we have noticed that the car parking no-49 was provided to them. It is crystal clear that within two years from the date of receipt of the possession letter of the covered car parking space with endorsement, this complaint is not filed. The possession was acknowledged on 22.03.2017, but the instant complaint was filed on 02.03.2020, i.e. after lapse of more than 2 years and 11 months from the date of cause of action. This petition of complaint is not filed accompanied with a separate petition for condonation of delay. During admission hearing or filing this complaint it could be ascertained that this complaint is hopelessly barred by limitation in view of the Section 24A of the C.P. Act, 1986 as the Complainant has clubbed another prayer directing the OPs to provide the completion certificate to them. But separate two prayers out of which one is barred by limitation cannot be clubbed together.
The Complainants are at liberty to approach before the competent Commission/Court by filing fresh application/complaint seeking for completion certificate, if not provided in the meantime.
Going by the foregoing discussion hence it is ordered that the Consumer Complaint being no-CC/127/2020 is hereby dismissed exparte against the OPs being barred by limitation. Considering the facts and circumstances there is no order as to cost.
Let a plain copy of this judgment be given to the parties free of cost as per the CPR.
Dictated and corrected by
[HON'BLE MRS. Silpi Majumder]
MEMBER
