DATE OF FILING : 06.03.2014.
DATE OF S/R : 28.03.2014.
DATE OF FINAL ORDER : 29.02.2016.
Sri Umesh Shaw,
son of late Panchi Shaw,
residing at 281/27, G.T. Road, P.O. Liluah,
P.S. Belur ( previously Bally ),
District Howrah,
PIN 711 204. ………………………………………………………… COMPLAINANT.
Sri Sunil Pandey,
son of Sri Upendar Pandey,
residing at 6, Thakmall Road, P.O. Liluah,
P.S. Belur ( previously Bally ),
District Howrah,
PIN 711204. …………………………………………………………OPPOSITE PARTY.
P R E S E N T
Hon’ble President : Shri B. D. Nanda, M.A. ( double ), L.L.M., WBHJS.
Hon’ble Member : Smt. Jhumki Saha.
Hon’ble Member : Shri A.K. Pathak.
F I N A L O R D E R
- This is an application U/S 12 of the C.P. Act, 1986 filed by the petitioner, Umesh Shaw, against the o.p. Sunil Pandey, praying for a direction upon the o.ps. to deliver the rest carpet area in favour of the petitioner by executing a proper deed of conveyance in respect of the respective share of the complainant in suit property as per the terms and conditions of the development agreement dated 17.7.2002 and to pay compensation and damages amounting to Rs. 2 lakhs.
- The case of the petitioner is that he jointly with one Raj Kumar Debi executed one development agreement with the o.p. developer, Shri Sunil Pandey, in respect of the land of the petitioner as well as Raj Kumari Debi measuring about 5 cottah at holding no. 281/27, G.T. Road, P.O. Liluah, P.S. Belur, Howrah, described in the schedule ‘A’ wherein this petitioner is owner in respect of the 2 cottahs 8 chittaks and he and his other partner Raj Kumari Devi entered into the agreement on 17.7.2002 wherein laid down that the o.p. would construct G + 5 storied building and the expenses would be borne by him and the petitioner and his co-partner would get 30% of the constructed area + 150 sq. ft. in each floor out of the constructed area. The o.p. failed to complete the entire building and completed G + 4 storied building which contained 2700 sq. ft. in the ground floor and more or less 3000 sq. ft. carpet area in the first, second, third and fourth floor each totaling 14,700 sq. ft. wherein the complainant and his partner Raj Kumar Devi were entitled to get 5,160 sq. ft. as described in the schedule ‘B’. It was settled between the parties that the o.p. soon after completion of construction would deliver possession to the petitioner and said Raj Kumar Debi by separate deed of conveyance in their favour. The o.p. has not paid any money to the petitioner and he is liable to pay all the costs and expenses of making the deed of conveyance in favour of the petitioner and his partner Raj Kumari Debi. On 12.12.2005 the o.p. gave possession to the said partner and Raj Kumari Debi, who received 1,750 sq. ft. but the o.p. delivered only 2,767 sq. ft. to the petitioner and when the petitioner asked the o.p. about the rest 643 sq. ft. then the o.ps. told that they would deliver him before registration of the deed of conveyance. The petitioner requested the o.p. to deliver 643 sq. ft. but no result came out. On 13.7.2014 the petitioner went to the o.ps. during the years but the o.ps. refused to deliver the possession to the petitioner in respect of 643 sq. ft. and threatened to kill him and so the petitioner filed this case.
- The o.p. contested the case by filing a written version denying the allegations made against him and submitted that the petitioner has no cause of action to file this case and also the case is not maintainable and it is barred by limitation also because the agreement took place on 17.7.2002 and he handed over possession of the respective share of Umesh Shaw and Raj Kumar Debi on 12.12.2005, and since then there was no further transaction between them and now after lapse of over 9 years the petitioner filed this case which is hopelessly barred by limitation. He further submitted that the petitioner came with malafide intention and he is not the sole owner of the property and his co sharers came to know about it and put pressure on the o.p. who had no other alternative but to give their legitimate share in the constructed area and now the case be summarily dismissed with costs.
- Upon pleadings of parties the following points arose for determination :
- Is the case maintainable in its present form ?
- Whether the petitioner has any cause of action to file the case ?
- Whether there is any deficiency in service on the part of the O.P. ?
- Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
- All the issues are taken up together for the sake of convenience and brevity for discussion and to skip of reiteration. In support of his case the petitioner filed affidavit as well as documents that he and his partner Raj Kumari Debi entered into an agreement with the o.p. who constructed the house over their land and further he submitted that on 12.12.2005 the o.p. gave possession to Raj Kumari Debi who got 1750 sq. ft. and the petitioner got 2767 sq. ft. and the petitioner was to get further 643 sq. ft. more but the o.p. did not deliver the same and when the petitioner requested the o.p. on 22.11.2006 and again on 13.7.2012 and over forty times he requested the o.p. to deliver such possession of 643 sq. ft. then the o.p. delayed the matter compelling him to file the case.
- This Forum heard the ld.counsel of both sides. While the counsel for the petitioner submitted that his client is entitled to 643 sq. ft. of the constructed area then the counsel for the o.p. submitted that the case is hopelessly barred by limitation and the o.p. satisfied the co-owners of the petitioner by giving them space with the constructed area and now the matter cannot be re agitated again. This Forum had gone through the cases of the parties as well as the provision of law as laid down U/S 24A of the C.P. Act, 1986 wherein it is stated that it is the duty of the Consumer Forum to take notice of Section 24A and go into the fact and in the instant case it is noticed that the transaction took place between the parties by making the development agreement on 17.7.2002 and later on the developer o.p. no. 4 handed over possession of constructed area to the petitioner and his co partner, Raj Kumari Debi, on 12.12.2005 and then filing this case after a lapse of over 9 years i.e., on 06.3.2014 the present CC no. 116 of 2014 is hopelessly barred by limitation. If this Forum accepts this case and decide the same on merit then this Forum would be committing an illegality and therefore this Forum is of opinion that this case being hopelessly barred by limitation is not maintainable before this Forum and it would be dismissed and the other issues regarding deficiency in service and others cannot be discussed further.
In view of above, the complaint case fails.
Court fee paid is correct.
Hence,
O R D E R E D
That the C. C. Case No. 116 of 2014 ( HDF 116 of 2014 ) be and the same is dismissed on contest without costs.
Supply the copies of the order to the parties, free of costs.
DICTATED & CORRECTED
BY ME.
( B. D. Nanda )
President, C.D.R.F., Howrah.
