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Ganapati Construction Rep. by its partner, Sri Pinaki Sen & Another v/s Anil Kumar Das

    Revision Petition No. 95 of 2016

    Decided On, 04 November 2016

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER & THE HONOURABLE MRS. MRIDULA ROY MEMBER

    For the Petitioners: Prasanta Banerjee, Advocate. For the Respondent: Ayan Poddar, Ayan Poddar, Advocates.



Judgment Text

Samaresh Prasad Chowdhury, Presiding Member

The instant Revisional Application u/s 17(1)(b) of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of Opposite Parties to impeach the Order no.10 dated 01.03.2016 made by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Baruipur (for short, Ld. District Forum) in Consumer Complaint no. 389/2015 whereby the application filed on behalf of the OP’s to challenge the maintainability of the proceeding in view of the provisions of Section 24A of the Act was rejected.

We have perused the materials on record and considered the submission advanced by the Ld. Advocates for the parties.

Having heard the Ld. Advocate for the parties and on going through the materials on record, it would reveal that the OP’s herein being Complainants have initiated the instant Consumer Complaint under Section 12 of the Act on the allegation of deficiency of services on the part of the OPs/developer in a consumer dispute of housing construction. After entering appearance the OPs by filing the application has contended that after construction of the building, the owners allocation was handed over by them to the Complainants on 03.01.2012 but after lapse of more than two years, the complaint was lodged before the Ld. District Forum and as such it is hopelessly barred by limitation, particularly when no application for condonation of delay has been filed. By the impugned order, the Ld. District Forum dismissed the application which prompted the OPs to prefer this revision petition.

Mr. Prasanta Banerjee, Ld. Advocate appearing for the Revisionist has submitted that the Ld. District Forum has only relied upon the contents of the petition of complaint to the effect that - 'On or after 23.08.2014, but OPs stops construction works and left construction ......' and considering that day as the date of cause of action has rejected the application which does not depict the actual state of affairs. He has placed two documents – (1) a copy of letter of acceptance by the Complainant no.1given by the developer dated 03.01.2012 which confirms that four flats as per owners’ allocation were handed over by the developer/revisionists to the landowner/OPs and (2) a copy of Registered Deed of Gift dated 12.04.2013 executed by Complainant no.1 in favour of Complainant no.2 which speaks – 'In terms of Development Agreement dated 5thNovember, 2008 and on the basis of Power of Attorney, the developer obtained sanctioned building plan from the KMC being sanctioned no.083 dated 11.06.2010 for construction of the G+III storied buildingand has completed the construction of the said flats and car parking spaces as well as building inhabitable conditionsand has delivered the owners’ allocation ............'. Therefore, the Ld. District Forum without considering the fact that within two years from the date of receiving possession of owner’s allocation has not filed the complaint and as such it was barred by limitation and, therefore, the impugned order should be interfered with.

Mr. Ayan Poddar, Ld. Advocate for the OPs, on the other hand, has contended that the Revisionists have not filed the documents before the Ld. District Forum and as such those documents cannot be relied upon and further the handing over of possession of four flats by itself does not mean that the developer has completed all the works in accordance with the sanctioned plan and as such the Ld. District Forum has rightly dismissed the application challenging the maintainability of the case on the ground of limitation.

We have considered the rival contention of the parties. The Revisional jurisdiction of the State Commission flows from Section 17(1)(b) of the Act, which reproduces below :-

'to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity'.

The above provision makes it quite clear that the revisional jurisdiction conferred on the State Commission is limited to the extent of jurisdictional illegality or material irregularity. Admittedly, there is no jurisdictional error in the order of Ld. District Forum.

Now, we shall proceed to discuss whether there is any material irregularity in passing the order impugned. In order to determine the point of limitation, as alleged by the OPs/Revisionists it would be worthwhile to reproduce the provisions of Section 24A of the Act which provides –

'24A. Limitation Period –

1. The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which cause of action has arisen.2. Notwithstanding anything contend in sub-Section(1), a complaint may be entertained after the period specified in sub-Section (1), if the Complainant satisfies the District Forum, 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 National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay'.

The above provision is peremptory and mandatory in nature. According to the provision, a Consumer Forum has no power to entertain a complaint unless it is filed within two years from the date of accrual of cause of action. Admittedly, no application for condonation of delay has been filed. Therefore, it has to be seen whether within two years from the date of accrual of cause of action, the petition of complaint was lodged. The exact date of filing of the petition of complaint is not clear but since it is a case of the year 2015 certainly, the complaint was filed in the year 2015. It is true that cause of action is bundle of facts but it is equally true that the cause of action of a particular case depends upon the facts and circumstances of the said case.

It is evident that the parties had entered into an agreement on 05.11.2008 by which the OPs/landowners authorised the Revisionists to construct a building over a piece of land lying and situated at Premises at 2/85, Vidyasagar Colony, P.S.- Jadavpur, Kolkata – 700047. By filing the complaint, the Complainants did not pray for any direction upon the OPs to do some act but have prayed for compensation on different counts. The certificate issued by the developer dated 03.01.2012 regarding delivery of owners’ allocation in respect of four flats has been accepted by the landowners. Moreover, in the recital of the Deed of Gift executed by Complainant no.1 in favour of Complainant no.2 it has been categorically mentioned that the developer has completed the construction of the flats and car parking spaces as well as building in habitable conditions. It means and indicates that on 10.03.2012 the Complainants got the allocated portion in favour of them. In such a situation, in a dispute between landowner and developer, the date of handing over possession by the developer to the land owners i.e. 10.03.2012 should be considered as the date of cause of action in the facts and circumstances of the present case.

It is well settled law that by writing letter or by making representations etc. the period of limitation cannot be extended.

Therefore, when within two years from the date of accrual of cause of action the petition of complaint has not been filed and further no prayer has been made for condonation of delay, the instant complaint is hopelessly barred by limitation. The Ld. District Forum has relied much upon the contents of the petition of complaint without perusal of acceptance of owner’s allocation dated 10.03.

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2012 and the contents of paragraph 4 of page 4 of Registered Deed of Gift dated 12.04.2013 executed by complainant no.1 in favour of complainant no.2. So, it is quite evident that the Ld. District Forum has committed material irregularity in passing the order impugned. Accordingly, the impugned order is liable to be set aside and consequently the consumer complainant should be dismissed as it is time barred. In view of the above, the instant revision petition is allowed on contest. There will be, however, no order as to costs. The impugned order is hereby set aside. Consequently, the consumer complaint no. 389/2015 pending before Ld. District Forum stands dismissed being time barred. The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, South 24-Parganas at Baruipur for information.
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