State Consumer Disputes Redressal Commission
Smt. Sabita Naskar vs M/S. Eastern Engineering &Associates on 16 February, 2023
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/2/2023 ( Date of Filing : 09 Jan 2023 ) 1. Smt. Sabita Naskar W/o, Lt Sunil Naskar. Vill & P.O.- Podra, P.S.- Sankrail, Dist- Howrah, Pin- 711 109. 2. Smt. Champa Sardar W/o, Lt Bholanath Sardar. Vill & P.O.- Podra, P.S.- Sankrail, Dist- Howrah, Pin- 711 109. 3. Smt. Buity Mondal W/o, Lt Samir Mondal. Vill & P.O.- Podra, P.S.- Sankrail, Dist- Howrah, Pin- 711 109. 4. Sri Ayan Mondal S/o, Samir Mondal. Vill & P.O.- Podra, P.S.- Sankrail, Dist- Howrah, Pin- 711 109. 5. Smt. Piyasa Mondal D/o, Samir Mondal. Vill & P.O.- Podra, P.S.- Sankrail, Dist- Howrah, Pin- 711 109. 6. Sri Joydeb Debnath S/o, Sri Bijoy Debnath. Vill & P.O.- Podra, P.S.- Sankrail, Dist- Howrah, Pin- 711 109. 7. Sri Manoj Dutta Roy S/o, Lt Haripada Dutta Roy. Vill & P.O.- Podra, P.S.- Sankrail, Dist- Howrah, Pin- 711 109. 8. Sri Shyamal Kumar Roy S/o, Lt Khagendra Nath Roy. 12/3, Naskar Para Lane, P.O.- B. Garden, P.S.- A.J.C Bose Botanic Garden, Dist- Howrah, Pin- 711 103. 9. Sri Basudeb Aich S/o, Lt Kartick Chandra Aich. 49, Guru Nanak Lane, P.O.- B.Garden, P.S.- Shibpur now A.J.C Bose Botanic Garden, Dist- Howrah, Pin- 711 103. 10. Sri Samir Kumar Roy S/o, Lt Khagendra Nath Roy. 12/3, Naskar Para Lane, P.O.- B.Garden, P.S.- Shibpur now A.J.C Bose Botanic Garden, Dist- Howrah, Pin- 711 103. 11. Sri Tapas Kumar Mukhopadhyay S/o, Lt Jamini Mohan Mukhopadhyay. Shyama Jyoti Apartment, 4th Floor, Flat No.- E-204, Podra Halder Para, P.O.- Podra, P.S.- Sankrail, Dist- Howrah, Pin- 711 109. ...........Complainant(s) Versus 1. M/s. Eastern Engineering &Associates Andul Road, Arabinda Sarani, P.O.- Podra, P.S.- Sankrail, Dist- Howrah, Pin- 711 109. 2. Sri Ravi Kant Srivastava S/o, Lt Prem Prakash Srivastava. Andul Road, Arabinda Sarani, P.O.- Podra, P.S.- Sankrail, Dist- Howrah, Pin- 711 109. ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE MANOJIT MANDAL PRESIDENT PRESENT: Mr. Sukanta Mondal, Mr. D.Roy, Advocate for the Complainant 1 None appears ......for the Opp. Party Dated : 16 Feb 2023 Final Order / Judgement
HON'BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT This complaint is filed by the complainants under section 47 of the Consumer Protection Act, 2019 alleging gross deficiency and negligence of service on the part of the Opposite Parties.
The complainants have filed this case praying for the following reliefs :-
"i) Under the above circumstances your Lordships would graciously be pleased to pass the order directing the opposite parties to pay bank interest of Rupees 40,00,000/- (Forth Lakhs Only) for deficiency in service on that part of the opposite party by not delivering the owners allocation till date in respect of the Lands of the Petitioners as mentioned in the cause title herein above.
ii) An order directing the opposite parties to pay the rent amount of Rupees 29,16,000/- (Twenty Nine Lakhs Sixteen Thousand) to the complainants which the complainants has already paid in respect of their rented house.
iii) An Order directing the opposite parties to pay a sum of Rupees 45,00,000/- (Forty Five Lakhs Only) towards the compensation to the complainants for their pecuniary loss and mental agony suffered by the complainants.
iv) Litigation cost of Rupees 50,000/- (Fifty Thousand Only).
v) To pass such further order / orders in the terms of the prayer above as your Lordship may deem fit and proper."
Heard the Learned Advocate appearing for the complainants. I have carefully perused the petition of complaint wherefrom it appears to me that the complainants are the owners of the plots of land and they entered into a development agreement with the Opposite Parties on 18/09/2013. Both the complainants and the Opposite Parties also executed a General Power of Attorney on 18/09/2013. Agreement for development and General Power of Attorney both executed on 18/09/2013 were registered before the District Sub Registrar of Howrah vide Book No. I, CD Volume No. 29, pages from 3124 to 3155 being No. 08697 for the year 2013 ( Development Agreement) and Book No. I, Volume No. 29, pages from 3306 to 3330, being No. 08705 for the year 2013 ( Power of Attorney) by and between the Opposite Parties as Developer and the complainants as the owners.
As per Development Agreement it was agreed that the Opposite Parties shall hand over the possession of the building to the complainants within 3 years from the date of commencement of the proposed new building on the said property which can be extended for further period, if required, upon mutual discussion between the parties.
It appears from the petition of complaint that the cause of action initially arose on 18/09/2013 when the Development Agreement and Power of Attorney was executed by and between the parties.
This complaint is filed on 09/01/2023, which reveals that after about 10 years from the date of execution of the deed of conveyance in respect of the flats, the complainants have filed this complaint before this Commission, which is not legally permitted in view of the Consumer Protection Act, 2019.
7. Section 69 of the Consumer Protection Act, 2019 runs as follows :-
"69. Limitation period.- (1) The District Commission, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Commission, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the District Commission or the State Commission or the National Commission, as the case may be, records its reasons for condoning such delay."
From the aforesaid provision it appears that the provision is peremptory in nature, requiring the Consumer Commission to examine before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Commission, however, for the reasons to be recorded in writing may condone the delay in filing the complaint, if sufficient cause is shown.
On careful perusal of the record it appears to me that this complaint has not been filed in time. There is delay in filing the petition of complaint by the complainant. Moreover, it appears to me that this complaint is not accompanied with a separate petition praying for condonation of delay.
At the time of hearing on the point of admission Learned Advocate appearing for the complainant has submitted that a discussion was held on 04/12/2016 in between the complainants and the opposite parties regarding the delay of construction of the building at the vacant premises of the complainants. In the said discussion the Opposite Parties assured the complainants that he will start the construction very soon. Learned Lawyer appearing for the complainants also urged that since the Opposite Parties failed and neglected to do the needful work, as such on 04/01/2017 the complainants served a letter to the Opposite Parties requesting the Opposite Party No. 2 to do the needful work. In spite of receiving the said letter the Opposite Parties did not take any steps to start construction at the vacant land of the complainants.
He further submitted that the complainants through a letter dated 25/03/2019 informed the local Panchayat Pradhan about the matter. On receiving the said letter, local Panchayat Pradhan called the Opposite Party No. 2 and instructed him to start construction but to no effect. He further submitted that the Opposite Parties failed and neglected to fulfill the terms of the agreement. As such, he sent a letter on 15/07/2022 to the Opposite Parties but the Opposite Parties failed to comply the said letter though the complainants made several requests to the Opposite Parties but no progress of work has been done on the land of the complainants. Thereafter, the complainants filed this complaint before this Commission on 09/01/2023 i.e. more than 9 years after arising of cause of action.
We fail to accept the contentions as made by the Learned Lawyer appearing for the complainants.
The Hon'ble Supreme Court in State of Tripura & Ors. Vs. Arabinda Chakraborty & Ors., reported at (2014) 6 SCC 460 has held the following :-
"10. In our opinion, the suit was hopelessly barred by law of limitation. Simply by making a representation, when there is no statutory provision or there is no statutory appeal provided, the period of limitation would not get extended. The law does not permit extension of period of limitation by mere filing of a representation. A person may go on making representations for years and in such an event the period of limitation would not commence from the date on which the last representation is decided........."
The Hon'ble National Commission in Mahesh Nensi Shah Vs. Oriental Insurance Co. Ltd. reported at III (2006) CPJ 414 NC, has observed that :-
" no amount of correspondence between the parties can extend the period of limitation."
In the present case also, this complaint has been filed after almost 9 (Nine) years from the date, the "cause of action" arose. Even though the complainants had made several representations to the opposite parties when the letters were not responded by the opposite parties, the same cannot be considered as the date of accrual of fresh cause of action.
I find that this complaint is not accompanied with a separate petition praying for condonation of delay. On the date of execution of the deed of Development Agreement cause of action arose, then it was the duty of the complainants to approach before the court of law by filing a complaint within the statutory period of limitation i.e. within two years from the date of cause of action. But without doing so, the complainants filed this complaint before this Commission after a long 9 (nine) years from the date of cause of action without filing any separate petition praying for condonation of delay which is totally contrary to the provision of section 69 of the Consumer Protection Act, 2019. Hence, it is ordered that the consumer complaint case being No. CC/2/2023 is hereby dismissed being barred by limitation and without being admitted.
The complaint case is thus disposed of accordingly.
[HON'BLE MR. JUSTICE MANOJIT MANDAL] PRESIDENT