Dt. of filing – 18/01/2018
Dt. of Judgement – 03/12/2018
Mrs. Sashi Kala Basu, President
This petition of complaint filed under Section 12 & 13 of the Consumer Protection Act, 1986 by Complainants namely 1) Dilshad Hussain 2) Ranabrata Bose and 3) Vinay Kumar Singh against the OPs namely 1) Mr. Chandan Sarkar and 2) Mr. Rahul Safui alleging deficiency in service on their part.
Brief fact of the case of the Complainants is that Complainant No.1 along with his mother had purchased a self contained flat on the third floor being Flat No.C-1 and covered car parking space on the ground floor, Complainant No.2 had purchased a self contained flat on the second floor being Flat No.B-1 along with his wife and the Complainant No.3 had purchased a flat on the first floor being Flat No.A-1 and also a covered car parking space on the ground floor along with his father, from the OP and separate Deed of Conveyance has already been registered in the year 2015, 2014 and 2015 respectively. But while staying in the building the Complainants have experienced that the lift installed in the said building at 77, Safuipara Baidyapara, Kolkata-700078 has been installed by OP No.1 at his responsibility having no license or permission. The drainage system has also not been done according to the provision of law of KMC. No caretaker’s room and toilet on the ground floor is constructed which is specifically indicated in the sanctioned plan. Boundary wall of the building on the southern side has also not been constructed. As inspite of the request, OP failed to raise the construction or obtain license, a lawyer’s notice dated 27/12/2017 was sent to the OP but inspite of the same OP has failed to complete the work and obtained license. Thus the present complaint is filed by the Complainants for directing the OP to provide proper license/permission of lift facilities and to complete the construction of caretaker’s room with toilet and legalization of drainage and sewerage and also to provide completion certificate. It is also prayed to direct the OP to pay sum of Rs.10,00,000/- as compensation.
OP has contested the case by filing the written version denying the material allegation contending inter alia that this complaint is bad for non-joinder of necessary parties. The case is also barred by limitation. It is further case of the OP that the OP had engaged one company for installation and operation of the lift. But as the said company failed to provide the license inspite of several letters they are not in a position to provide the, license but will get it shortly. So the OP has prayed for dismissal of the complaint case.
Complainants have annexed the documents along with the complaint which are three deeds executed in favour of Complainants along with others, tax bills and the notice sent through Ld. Advocate.
In course of the evidence both the parties filed their affidavit-in-chief followed by cross examination in the form of questionnaire and the reply thereto.
Both the parties made their argument and the Complainants also filed brief notes of argument.
So the following points require determination:-
- Whether the present complaint case is maintainable in law?
- Whether the Complainants are entitled to any relief as prayed for?
Decision with reasons
Point No.1
Complainants have filed the copy of the deeds executed in their favour in respect of their flat and the car parking space in favour of Complainant No.1 and Complainant No.3. These deeds indicate that the Deed of Conveyance in favour of the Complainant No.1 namely Dilshad Hussain was executed on 11/3/2015. The deed was in favour of the Complainant Dilshad Hussain and his mother Mrs. Sahnaz Fatima. The Deed of Conveyance in favour of Complainant No.2 was executed on 14/11/2014 along with his wife namely Smt. Ananya Bose. The third Deed of Conveyance is dated 11/3/2015 and was executed in favour of the Complainant No.3 namely Mr. Vinay Kumar Singh and Mr. Anuj Kumar Singh, the father of the said Vinay Kumar Singh. So it is apparent that the cause of action if any arose on 11/3/2015, 14/11/2014 and 11/3/2015 respectively which are the dates of execution of the deeds in favour of the Complainants along with others named therein.
As per Section 24A of Consumer Protection Act, District Forum, State Commission or the National Commission (as the case may be) shall not admit the complaint if it has been filed after two years from the date of which the cause of action has arisen.
Section 24A(2) of the Consumer Protection Act however provides that a complaint can be entertained after a stipulated period if the Complainant satisfies that he had sufficient cause for not filing the complaint within said period of limitation. Hence, if there is delay in filing consumer complaint then the Complainant shall satisfactory explain the Court the reason for delay in filing the complaint.
In this case as already highlighted above the different dates of possession and execution of deeds are in March 2015, November 2014 and March 2015 respectively, so there remains no doubt that the present complaint is time barred as it has been filed much after the statutory period of two years. Present complaint has been filed on 18/1/2018. There is no explanation anywhere as to why there has been delay. So apparently the present complaint case is barred by law of limitation.
It may also be pertinent to point out that in their own documents i.e. three deeds referred to above, Complainants are not the only purchaser. With them Mrs. Sahnaz Fatima, the mother of Complainant No.1, Smt. Ananya Bose, the wife of Complainant No.2 and Mr. Anuj Kumar Singh, the father of Complainant No.3 are also the co-owners in respect of the property. But they have not been made as party in this case. Neither there is any explanation in this regard as to why they have not been impleaded as parties. So those three co-owners no doubt are necessary parties in this case and as they have not been made as parties, case also suffers for non-joinder of necessary parties. Thus in view of the discussion as highlighted above, this case in the present form is not maintainable and on this ground it is liable to be dismissed.
Point No.2
In view of the discussions as highlighted in Point No.1 as the case is not maintainable, further discussion with regard to the factual aspect of the case on merits, will be redundant.
This point is answered accordingly.
Hence,
ORDERED
CC/30/2018 is dismissed on contest.
