State Consumer Disputes Redressal Commission
Sri Netai Ghosh vs Chhandita Mitra on 7 August, 2015
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/593/2014 (Arisen out of Order Dated 25/04/2014 in Case No. Complaint Case No. CC/18/2014 of District Kolkata-II) 1. Sri Netai Ghosh S/o Late Chandi Charan Ghosh, 3, K.C. Bose Road, P.S. Shyampukur, Kolkata -700 004. 2. Sri Srimanta Ghosh S/o Late Chandi Charan Ghosh, 3, K.C. Bose Road, P.S. Shyampukur, Kolkata -700 004. 3. Sri Rabindranath Ghosh S/o Late Chandi Charan Ghosh, 3, K.C. Bose Road, P.S. Shyampukur, Kolkata -700 004. 4. Smt. Runa Ghosh D/o Late Tapan Ghosh, 3, K.C. Bose Road, P.S. Shyampukur, Kolkata -700 004. 5. Kumari Tanaya Ghosh D/o Late Tapan Ghosh, 3, K.C. Bose Road, P.S. Shyampukur, Kolkata -700 004. 6. Sri Patit Paban Ghosh S/o Late Chandranath Ghosh, 53/B, Bhupen Bose Avenue, 1st Floor, P.S. - Shyampukur, Kolkata -700 004. 7. Sri Bidyut Kumar Ghosh S/o Late Chandranath Ghosh, 53/B, Bhupen Bose Avenue, 1st Floor, P.S. - Shyampukur, Kolkata -700 004. 8. Sri Sukumar Ghosh S/o Late Chandranath Ghosh, 53/B, Bhupen Bose Avenue, 1st Floor, P.S. - Shyampukur, Kolkata -700 004. 9. Smt. Renuka Ghosh Widow of Late Chandranath Ghosh, 53/B, Bhupen Bose Avenue, 1st Floor, P.S. - Shyampukur, Kolkata -700 004. 10. Sri Sambhu Nath Ghosh S/o Late Batakrishna Ghosh, 53/B, Bhupen Bose Avenue, 1st Floor, P.S. - Shyampukur, Kolkata -700 004. 11. Jamunabala Ghosh D/o Late Batakrishna Ghosh, 69, Shyambazar Street, Kolkata -700 004. 12. Smt. Namita Ghosh D/o Late Chandranath Ghosh, 20C, Gope Lane, Kolkata -700 014. 13. Sabita Chakraborty D/o Late Chandranath Ghosh, 18/7B, Raja Rajballav Street, Kolkata -700 003. 14. Kabita Ghosh D/o Late Chandranath Ghosh, 53/B, Bhupen Bose Avenue, P.S. - Shyampukur, Kolkata -700 004. 15. M/s. Paxco, represented its sole Prop., Sri Biswajit Ghosh S/o Late M.M. Ghosh, 1A, Prananatgh Sur Lane, P.S. - Cossipore, Kolkata -700 002. ...........Appellant(s) Versus 1. Chhandita Mitra W/o Ashis Mitra, Unity Tower, 70, Shyambazar Street, P.S. - Shyampukur, Kolkata - 700 004. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE KALIDAS MUKHERJEE PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER For the Appellant: Mr. Sitangsu Dasgupta , Advocate For the Respondent: Mr. Ashis Mitra (authorised person)/, Advocate ORDER
07/08/15 HON'BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT These Appeals being nos.FA 593 of 2014, FA 594 of 2014, FA 606 of 2014 and FA 607 of 2014 having identical facts were heard analogously.
The case of the Complainants, in short, is that they entered into agreement for sale with the Owner and Developer on 30/04/04 and the possession was delivered and the deed of conveyance was also executed on 19/02/07 and the consideration amount was fully paid. The OPs did not supply the completion certificate and, as such, the Purchasers could not get their names mutated in Kolkata Municipal Corporation.
The Learned Counsel for the Appellants has submitted that the building plan was sanctioned by the Corporation and the possession was delivered followed by registration of the deed. It is contended that the complaint case was filed in the year 2014 beyond the period of two years from the date of cause of action and, therefore, the complaint case was barred by limitation. It is contended that subsequently Kolkata Municipal Corporation included the area in question as 'khatal' being the vested land. It is submitted that unless the recording of 'khatal' in the records of Kolkata Municipal Corporation is deleted, the Owner cannot apply for completion certificate. It is contended that application was made before the Controller under Thika Tenancy Act and for getting mutation by the Purchasers the filing of completion certificate is not necessary and the Purchasers can get their names mutated by producing the copy of electric bill as mentioned in form no.A 42. It is submitted that the Purchasers did not apply for mutation. It is contended that the Learned District Forum was not justified in recording that the OPs obtained the plan sanctioned by the Corporation by fraudulent means.
The Learned Counsel for the Respondents/Purchasers has submitted that the Purchasers applied for mutation, but the Promoter did not say that it was recorded as 'khatal'.
Admittedly, the possession was delivered and the deed of conveyance was executed in the year 2007. The complaint cases were filed in the year 2014. In the decision reported in 2013 (1) CPR 58 (NC) [M.P. Housing Board through its Estate Officer Vs. Sudhir Mishra] it has been held by the Hon'ble National Commission that the complaint ought to have been filed within two years from the date of taking possession of house and the complaint was held as barred by limitation. In the instant case the complaint ought to have been filed within two years from the date of execution of the deed. The complaints filed, therefore, are barred by limitation.
Secondly, it appears from the materials on record that the premises in question was, subsequently, recorded as 'khatal' and the applications were made before the Controller, Thika Tenancy. Under such circumstances, since the matter is pending before the competent Authority, that is, Controller, Thika Tenancy, the Appellants cannot be held responsible for non-supply of completion certificate. The Learned District Forum was not justified in holding that the Developer obtained the sanctioned plan by fraudulent means. Having heard the Learned Counsel for the parties and on perusal of the materials on record, we are of the considered view that the Complainants are not entitled to get any relief in the Consumer Forum.
The Appeals are allowed. We set aside the impugned judgments and orders passed by the Learned District Forum. The petitions of complaint are dismissed. This judgment will govern all the Appeals as mentioned above. [HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER