DATE OF FILING : 22-03-2010.
DATE OF FINAL ORDER : 12-07-2010.
1. Sri Debdoot Roy,
Son of Late Bijan Kumar Roy.
2. Smt. Ratna Roy,
wife of Sri Debdoot Roy,
both of 17/1, P.K. Roy Chowdhury Lane,
P.S. Shibpur,District Howrah COMPLAINANTS.
Versus -
1. Sri Kartick Shaw,
son of Late Sudhir Shaw,
of 103/1, Raj Ballav Saha Lane,
P.O. and District Howrah. OPPOSITE PARTY.
P R E S E N T
1. Honble President : Shri J. N. Ray.
2. Honble Member : Dr. Dilip Kr. Chakraborty.
3. Honble Member : Smt. Samiksha Bhattacharya.
C O U N S E L
Representative for the complainants : Shri Subrata Kole,
Ld. Advocate.
Representative for the opposite party : Shri Amalesh Maji,
Ld. Advocate.
F I N A L O R D E R
The instant case has been filed by the complainants Sri Debdoot Roy and Smt. Ratna Roy U/S 11 and 12 of the C.P. Act, 1986 against the O.P. Kartick Shaw alleging deficiency in service.
The case of the complainants is that they have purchased two flats being flat nos. 2 and 4 measuring about total 1526 sq. ft. including super built up area on the 1st floor of the building at premises no. 17/1, P.K. Roy Chowdhury Lane, P.S. Shibpur, District – Howrah, by consideration money of Rs. 10,37,680/- only from the developer Kartick Shaw as well as the constituted attorney of the land owner of Smt. Mangala Bala Maity on 11-08-2008 by way of registered deed of sale vide no. 08665 for the year 2008 registered at District Sub Registrar, Howrah, and since then the said flat owners have possessing the same. It is alleged that after purchase the said flats the complainants feel very uneasy as the room for the said flat as well as the building are cracked and water is dropping in the rainy season and also the outside wall is always damped and in rainy season rain water is entering into their flats and paint of the building also not done.
In support of contention the complainants have filed a report of the expert i.e., civil engineer to that effect. It is further contended that the present complainant and also other flat owners had submitted a written complaint to the o.p. Kartick Shaw on 10-11-2009 through registered post with A/D on 10-11-2009 and the said complaint has been received by the o.p. on 14-11-2009. Inspite of that the o.p. did not pay any heed to that and did not repair the said defect. For such deficiency in service by the o.p. Kartick Shaw the present case has been filed for repair of the said roof of the building and walls as well as damages including harassment etc. for Rs. 2,00,000/- only and also the cost of litigation thereon.
The o.p., Kartick Shaw, appeared in this case and filed written version wherein he denied all the material allegations made in the complaint petition. It is contended that the complainants have entered into an agreement for sale with M/S. Shibshakti Construction not with the o.p. individually and said M/S. Shibshakti Construction entered into an agreement for development with landlady Smt. Mangala Bala Maity and as such the o.p. has no individual right and / or liability in respect of the said project. Further the complainants did not make party to the said partnership firm or other partners of the said firm or the owners Smt. Mangala Bala Maity and the o.p. never sold any flat to the complainant individually and as such the complainants cannot be consumers of the o.p. It is further contended that the said partnership firm is entitled to get Rs. 1,51,8000/- from the owner Smt. Mangala Bala Maity for acceptance of additional area of 253 sq. ft. at Rs. 600/- per sq. ft. of the purchasers / complainants accepted the possession in the year of 2004 which was duly signed by the complainants on 28-05-2005 specifically mentioned that they have inspected the above flat and satisfied regarding construction, measurement, finishing and other facilities and the instant case was filed after six years. So the case is not maintainable. At present the o.p. has no connection with the M/S. Shibshakti Construction and the owner Smt. Mangala Bala Maity has taken responsibility for outside colouring of the said building in lieu of said amount of Rs. 1,51,800/- which is still due before the said partnership firm. Further there is nothing cogent evidence to show how the complainants are suffering for service of the o.p. and no specific amount claimed by the complainants in their complaint regarding alleged damages of their flats. Further it is stated that the complaint is time barred and baseless and it should be dismissed with cost.
Point for determination is that ( i ) whether the complaint application is barred by limitation or not (ii) whether the complaint is bad for non joinder of necessary parties and (iii) whether the o.p. has deficiency in service in respect of alleged complaint
DECISION WITH REASONS :
Point No. 1 :
At the outset of the argument ld. Advocate appearing for the o.p. submits before us that the case is hopelessly barred by law of limitation. It is appears that complainants have taken possession of the schedule flats on 28-05-2005 after being properly satisfied regarding construction , measurement, finishing and other facilities. The possession letter has been filed by the o.p. under firm pad i.e., Shibshakti Construction and the said letter indicates that the complainants inspected the flat and satisfied regarding construction of the flat etc. In that letter it also shows that a sum of Rs. 64,159/- is due to the complainant.
On the other hand ld. Advocate for the complainants submits that signatures of the complainants bearing in the letter are false and forged. But on scrutiny of the complaint petition as well as signatures of the purchasers in the possession letter we are of the view that both the signatures of the complainants tally in those complaint petition as well as possession letter. Besides, the complainants did not take any step to deny the said signatures of their own by following expert report. Thus we find that the possession letter dated 28-05-2005 issued by Shibshakti Construction is genuine one and acceptable. But the instant case was filed on 22-03-2010 i.e., long after 4 / 5 years back. But as per provision of the Act the complainants are required to file the complaint within two years and that was not done. So even there is no petition for condonation of delay. So it is crystal clear that the case is hopelessly barred by limitation and is not maintainable in any manner.
Secondly we find that the case is bad for non joinder of the parties. From the deed of conveyance filed in this case that the vendors namely M/S. Shibshakti Construction and the land owner Bhola Das have not been made parties in this case and o.p. is the only constituted attorney to the firm. So it is abundantly clear that the case is bad for non joinder of necessary parties and the necessary parties are required to be brought on record to adjudicate the case finally in order to get relief in the instant case.
Thirdly we also find there is no specific evidence to show that how the complainants suffer damages due to dropping of rain water and also crack of the roof wherein the owner of the second floor flats did not make any complaint. Even no specific amount claimed by the complainants in their complaint regarding alleged damages of their flats. The o.p. only admitted that colour of the building was not complete at the time registration on the ground that owner Smt. Mangala Bala Maity had taken responsibility for coloring the outside wall of the said building.
Further the estimated cost filed by the complainants by expert showing that a sum of Rs. 1,85,605.20 is required for repairing the flats. But the said expert certificate does not disclose whether the estimate was prepared at the inspection which cannot be taken as conclusive report regarding repair of the flats.
Having heard on both sides and also considering the facts and circumstances of the case together with legal aspects we are of the view that the complaint petition is completely time barred and the case is not maintainable for non joinder of the necessary parties having no merits as well.
In the result the case is liable to be dismissed.
Hence,
O R D E R E D
That the complaint petition is dismissed on contest against the o.p. with cost of
Rs. 10,000/- to be paid to the complainant.
That the case is thus disposed of.
Supply the copies of the order to the parties, free of costs.
