DATE OF FILING : 29.07.2015.
DATE OF S/R : 10.09.2015.
DATE OF FINAL ORDER : 05.02.2016.
Sri Haraprasad Banerjee,
son of late Jankinath Banerjee,
residing at 7, Kanti Goswami Lane, P.O. & P.S. Bally,
District Howrah,
PIN 711201…. ………………………………………………………… COMPLAINANT.
1. Sushil Mandal,
son of late Mohan Lal Mondal,
residing at 7, Kanti Goswami Lane, P.O. & P.S. Bally,
District Howrah,
PIN 711201.
2. Megha Construction,
represented by Anil Mall,
son of late Rebati Mohon Mall,
residing at 26, Chandra Pathak Lane, P.O. & P.S. Bally,
District Howrah,
PIN 711202. …………………………………………………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, Haraprasad Banerjee, against o.p. no. 1, Sushil Mandal and o.p. no. 2, Megha Construction, praying for a direction upon the o.ps. to execute the sale deed in favour of the petitioner in respect of the schedule mentioned flat being flat no. 8 in the 2nd floor of premises no. 7, Kanti Goswami Lane, P.O. & P.S. Bally, Howrah, and also to make payment of compensation of Rs. 50,000/- and Rs. 20,000/- as litigation costs.
- The case of the petitioner is that the o.p. no. 1, Sushil Mandal, was the owner of the land and he entered into a development agreement with o.p. no. 2 for raising a multi storied construction and also executed a power of attorney on 17.3.2003. The o.p. no. 2 on the basis of development agreement and power of attorney submitted the building plan before Bally Municipality and obtained sanctioned plan and started construction of G + 2 storied building. The petitioner being interested to purchase one flat in the 2nd floor entered into an agreement with the o.p. no. 2 on 02.8.2006 and made payments up to 2007 and the o.p. no. 2 received Rs. 4,17,000/- being the full and final settlement of the flat. Even though the petitioner paid full consideration money, the o.p. no. 2 did not execute and register the deed even more than 7 years have already been elapsed. The petitioner sent a legal notice through his advocate, Sankar Lal Sadhukhan, on 08.4.2015 and then filed this case.
- The o.p. nos. 1 & 2 though served with notice did not appear in the case and thus the case is heard ex parte against them.
- The only point to be decided here whether the petitioner is entitled to get the relief as prayed for ?
DECISION WITH REASONS :
- In support of his case the petitioner, Haraprasad Banerjee, filed an affidavit as well as a copy of the agreement of sale dated 02.8.2006 wherefrom it is noticed that the petitioner entered into an agreement with Mega Construction and Sushil Mandal, for purchase of a flat in the schedule floor at a consideration of Rs. 4 lakhs and the flat being more or less 474 sq. ft. at a consideration of Rs. 4 lakhks out of which Rs. 1 lakh was paid by the petitioner to the developer. There is no other document filed by the petitioner before this Forum that he has paid any other amount even though in his claim petition he submitted that he has paid Rs. 4,17,000/- upto 2007. In the instant case on scrutiny of the petition as well as the documents filed by the petition and keeping in mind the submission of the ld. counsel. While arguing the case it is noticed that the transaction took place lastly in the year 2007 as is noticed from the case of the petitioner in para 6 wherein he submitted that the total consideration money paid upto 2007 and after a lapse of another 7 years the petitioner filed this case stating that he sent legal notice on the o.ps. on 08.4.2015 and then filed this case.
- It is the established principle of law that the legal notice sent by the counsel cannot extend the period of cause of action. In the instant case, the agreement was signed in 2006 and the power of attorney was given on 17.03.2003 for developing the property. Taking it granted that the petitioner paid the total consideration money up to 2007 there is a lapse of 7 years in between cause of action and the filing of the case and a lawyer’s letter sending in the year 2015 cannot extend such cause of action for filing the case.
- Under Section 24A of theC.P. Act, 1986 is laid down the provision of limitation in filing a case by consumer. It is stated that the complaint must be filed by the petitioner before the District Forum within two years from the date of cause of action and it is further stated therein that this Forum shall not admit a complaint after two years and such a legislative command of the Act to the Consumer Forum point to the fact that the Forum has to examine on its own whether the complaint has been filed within the limitation period prescribed therein. In the instant case the cause of action accrued in the year 2007 which was the last date of payment and beyond that period no case can be filed and also there is no sufficient cause shown by the petitioner to condone such delay.Thus, this complaint being barred by limitation, the same is dismissed on merits.
Court fee paid is correct.
Hence,
O R D E R E D
That the C. C. Case No. 274 of 2015 ( HDF 274 of 2015 ) be and the same is dismissed ex parte 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.
