DATE OF FILING : 21.02.2014.
DATE OF S/R : 22.04.2014.
DATE OF FINAL ORDER : 21.01.2016.
1. Sri Rajeev Periwal,
son of Sri Kedarmal Periwal,
2. Sri Lalit Kumar Periwal,
son of Sri Kedarmal Periwal,
both are resident at F4 ( 3rd floor ), Block A,
holding no. 355 to 357, G.T. Road ( S ), Bataitola P.S. Shibpur,
District Howrah,
PIN 711103…………………. ……………………………… COMPLAINANTS.
1. Sri Vijay Kumar Birla,
son of Sri Radhey Shyam Birla,
residing at “Aasha Apartment”, Flat no. 1/C6, P.S. Tollygung,
93, Deshpran Sasmal Road,
Kolkata 33.
2. Sri Raman Kumar Agarwal,
son of Sri Satya Narayan Bidwaktha,
at 17/17, Hat Lane, P.S. and District Howrah.
3. Suit. Manjushree Chatterjee,
4. Smt. Malabika Sanyal,
5. Sri Avijit Chatterjee,
6. Sri Amitava Chatterjee,
7. Sri Joydev Chatterjee,
8. Sri Buddhadev Chatterjee,
9. Smt. Sukla Mukherjee,
all are residing at 355 to 357, G.T. Road ( 5 ), P.S. Shibpur,
District Howrah,
PIN 711103.
10. Smt. Subhra Chatterjee,
residing at village and P.O. Duillya, P.S. Sankrail,
District Howrah,
PIN 711313. ………………………………………………OPPOSITE PARTIES.
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, Rajeev Periwal and another against the o.ps., Vijay Kumar Birla, and nine others, praying for awarding a sum of Rs. 3 lakhs for damages along with interest till realization and direction upon the o.ps. to give free access and smooth keeping of cars by the petitioners in the car parking space at the ground floor of Block ‘A’ and demolish illegal unauthorized construction and hand over community hall, gymnasium, cyber café, tennis, caram, garden, children play ground, transformer etc. as promised in the deed of sale.
- The case of the petitioner is that he purchased one flat being flat no. F1 in the 3rd floor of Block ‘A’ measuring about 1012 sq. ft. and open car parking place at Block ‘A’ with common area of newly residential building together with proportionate and undivided share in the land in premises no. 355, 356 and 357, G.T. Road, P.S. Shibpur. The petitioner purchased the flat at a consideration of Rs. 10,86,700/- and in the terms and conditions of the sale deed it is mentioned that the petitioners / purchasers are entitled to use the community hall gymnasium, cyber café, tennis, caram, garden, children play ground, general, transformer etc. and on that effect the petitioners have also paid a sum of Rs. 29,715/- to the o.ps. as per their receipt no. 12 dated 31.7.2008. The plan was sanctioned duly by the Howrah Municipal Corporation and the petitioners having two separate cars for Maruti Ertiga and Honda City. Since few months the total scenario was changed and the o.ps. in collusion with one another completely deviated the sanction plan and unauthorizedly constructed flat and go down and four shop rooms by encroaching the maximum portion of car parking space of the ground floor of Block ‘A’ of said apartment. Even though the Block ‘A’ is absolutely used for residential purpose only. The petitioner requested the o.ps. to stop such illegal and unauthorized construction but their requests went in vain. Such inhuman activity of the o.p. caused serious inconvenience to the petitioner and they are entitled to compensation for a sum of Rs. 3 lakhs and litigation costs of Rs. 25,000/- and also they prayed for free ingress and egress to their flats and cars space.
- The o.p. nos. 1 & 2 contested the case by filing a written version denying the allegations made in the claim petition and submitted that the case is not maintainable and also it is barred by limitation. They further submitted that community hall, gymnasium etc. were handed over to the flat owners of the said housing complex and the flat owners are not interested to install generator as there is satisfactory electrical supply and also they are not interested about the cyber café. The o.ps. further submitted that at the ground floor of Block ‘A’ there are two flats and one go down for temporary use of o.ps. storing the building materials and two rooms for rehabilitation of the two tenants and knowing all these facts the petitioner purchased their flats and none of the flat owners have raised any allegation regarding their ingress and egress to the housing complex and are enjoying the common facilities and so this false case of the petitioners be dismissed with costs.
- The o.p. nos. 3, 4 & 6 contested the case by filing a separate written version denying the allegations and submitted that the petitioners filed this false and frivolous case and have not approached the Forum with clean hands and so this case be dismissed with exemplary cost. They further submitted that the deed of sale was executed on 26.06.2009 in respect of the property as mentioned in the deed and after lapse of 5/6 years. Petitioners came up with such frivolous application in order to create pressure upon the o.ps. are none but the land owners of the said premises but had agreement with the developers namely o.p. nos. 1 & 2 for developing the plot and making construction and the o.p. executed the sale deed and their only signatures in the said deed. They are falsely implicated in this case and rather the case is liable to be dismissed against them as they have no nexus with the complainants as well as the other o.ps.
- The o.p. nos. 7 & 8 contested the case by filing a separate written version denying the allegations made against them and submitted that they are falsely impleaded in this case as they have no nexus with the alleged sale transaction executed by the o.p. nos. 1 & 2 in favour of the petitioner and there is cause of action against them and they are simply co owners of the holding no. 355, 356, 357 and as per development agreement coupled with power of attorney they are provided with shares in the building as per owners allocated ratio as the o.p. nos. 3 to 10 are all co-owners and the o.p. nos. 1 & 2 are developers. They further submitted that if any problem arises between the purchaser and the developers as to the contents of the sale deed then it is their business to solve the said problems directly with the developers and not with all the house owners towards simply provided with flat as per ratio made in the owner/ developer agreement and the case be dismissed against them.
6. The case is heard ex parte against the o.p. no. 5, who was though served with notice did not appear and contest the case.
7. 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.Ps.,?
- Whether the complainants are entitled to get any relief as prayed for ?
DECISION WITH REASONS :
- All the issues aretaken up together for the sake of convenience and brevity for discussion and to skip of reiteration. In support of their case the petitioners Rajev Pariwal and Lalit Kumar Periwal filed affidavit stating that they are the owners of the flats and as per agreement they are not provided with the facilities and the same compelled them to file the case. The o.ps. have reminded this Forum of the West Bengal Building ( Regulation and Permission etc. ) Act, 1993 wherein it has been laid down that if there is a dispute as regards any defect in the construction of the building or in the materials used or any unauthorized change in the construction of the building or the amount of reasonable compensation payable in respect of such defect or change which is not rectified by the promoter then the owners of the building after service of due notice on the promoter and filed a case within a period of two years from the date of taking possession of the building.
- This Forum heard the ld. counsels for both the parties and also had gone through the contents of the averments of the original petition as well as the written versions filed by the defendants and on scrutiny of the documents find that these petitioners purchased the suit mentioned flat on 30.06.2009 and they filed this case on 21.02.2009 i.e., after lapse of almost 4 years and 4 months and it is categorically mentioned in Section 24A of the C.P. Act, 1986 that Consumer Forum here i.e., the District Forum shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. It is categorically mentioned that no such complaints shall be entertained unless the Forum finds that there was sufficient cause not for filing the complaint within such specific period. In the legislative wisdom, three years period has been prescribed as the reasonable time under the Limitation Act and that period should be the appropriate standard adopted for computing reasonable time to raise a claim in a matter of this nature as our Supreme Court opined in the case of Corporation Bank vs. Nabin Jain Shah ( 2000 ) 2 SCC page 628.
- In the instant case there is no specific petition for condonation of delay in filing the case after a lapse of 4 ½ years. Since their purchase of the flats in the said complex the petitioner became owners of the property and co sharer therein since 26.6.2009 and they could have faced such in convenience like space in the car parking area or the facilities like gymnasium, cyber café etc. Thus willfully they neglected to file the case and after lapse of 4 ½ years this Forum cannot go beyond the limitation period prescribed U/S 24A of the C.P. Act, 1986 and thus this Forum cannot entertain such a case and thus this case is not maintainable before this Forum and for filing such false and frivolous case the petitioner should be asked to pay fine for wasting the time of the judicial forum.
In view of above discussion and findings this Forum finds that the case is not maintainable and thus fails.
Court fee paid is correct.
Hence,
O R D E R E D
That the C. C. Case No. 92 of 2014 ( HDF 92 of 2014 ) be and the same is dismissed on contest with costs of Rs. 10,000/- be paid by the petitioner in favour of the Consumer Legal Aid Fund and dismissed ex parte against the O.P. no. 5 and the cost would be deposited by the petitioners in favour of the fund within 30 days from the date of this order failing the petitioner will face legal consequences as per C.P. Act, 1986.
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.
