w w w . L a w y e r S e r v i c e s . i n



Rajendra Kumar Goyal & Another v/s South City Project (Kolkata) Ltd. & Others


Company & Directors' Information:- SOUTH INDIA CORPN PRIVATE LIMITED [Active] CIN = U51102TN1935PTC002652

Company & Directors' Information:- CITY CORPORATION LIMITED [Active] CIN = U45202PN2003PLC018435

Company & Directors' Information:- GOYAL CORPORATION PRIVATE LIMITED [Active] CIN = U17119MH2006PTC166933

Company & Directors' Information:- GOYAL INDIA PRIVATE LIMITED [Amalgamated] CIN = U18101DL1996PTC081276

Company & Directors' Information:- K. S. CITY PRIVATE LIMITED [Active] CIN = U45201MP2006PTC018691

Company & Directors' Information:- K C PROJECT INDIA PRIVATE LIMITED [Active] CIN = U55101DL1997PTC088558

Company & Directors' Information:- A. H. PROJECT PRIVATE LIMITED [Active] CIN = U45400WB2010PTC141970

Company & Directors' Information:- S GOYAL AND COMPANY PRIVATE LIMITED [Active] CIN = U51109DL2000PTC105851

Company & Directors' Information:- RAJENDRA LIMITED [Strike Off] CIN = U99999KA1943PLC000306

Company & Directors' Information:- H & D CITY PRIVATE LIMITED [Strike Off] CIN = U70102UP2015PTC068088

Company & Directors' Information:- L. N. GOYAL & CO PRIVATE LIMITED [Active] CIN = U70101RJ2013PTC043272

Company & Directors' Information:- AMP PROJECT PRIVATE LIMITED [Active] CIN = U45400WB2011PTC164997

Company & Directors' Information:- K D PROJECT PRIVATE LIMITED [Strike Off] CIN = U45400MH2010PTC209307

Company & Directors' Information:- E PROJECT PRIVATE LIMITED [Active] CIN = U72300HR2015PTC057142

Company & Directors' Information:- RAJENDRA KUMAR AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U74920RJ1996PTC011712

Company & Directors' Information:- RAJENDRA CORPORATION PRIVATE LIMITED [Strike Off] CIN = U17219TZ1948PTC000161

Company & Directors' Information:- SOUTH INDIA COMPANY LIMITED [Dissolved] CIN = U74900KL1952PLC001113

    Complaint Case No. CC/312/2013

    Decided On, 06 August 2019

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SAMARESH PRASAD CHOWDHURY
    By, PRESIDING MEMBER

    For the Complainant: Syed Julfikar Ali, Advocate. For the Opp. Party: Saptarshi Datta, Sreemoyee Ghosh, Advocates.



Judgment Text

The instant complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of a couple/purchasers against the developer/builder (Opposite Party No.1) and its Directors on the allegation of deficiency in services on the part of them in a consumer dispute of housing construction.

In a nutshell, Complainants’ case is that on the basis of an advertisement, he submitted an application for purchasing of a flat in the South City Project (Kolkata) Ltd. On 07.05.2004, an allotment letter was issued in favour of the complainants in respect of a flat measuring about 1206 sq. ft. super built up area being Flat No.1 on the 13th floor of Tower-I, ‘OAK’ in the said housing complex lying and situated Premises No.375, Prince Anwar Shah Road, P.S.- Jadavpur, Kolkata – 700068 within the local limits of Ward No.93 of Kolkata Municipal Corporation at a total consideration of Rs.29,86,200/- for the flat, Rs.1,75,000/- for the car parking space and Rs.60,000/- for club membership aggregating Rs.32,21,200/-. The complainants have paid the entire consideration amount on diverse dates and accordingly in the year, 2008 the complainants were handed over the possession of the unit. The complainants state that the opposite parties had wilfully and deliberately failed and neglected to get the Deed registered in favour of them and after several requests and persuasions, the unit of the complainants was registered on 20.09.2010. The complainants state that as per Clause 2.8.1 of Standard Terms and Conditions (STC), the OPs were under obligation to arrange and provide full fledged club for recreational activities and they have paid Rs.30,000/- i.e. 50% of the club membership fees. The complainants have alleged that without providing the club facilities to them, the OP No.1 has constructed one ‘Cypress Tower’ on the proposed land of South City Club for the purpose of earning more profits by grabbing club membership fees of the complainants as well as other unit holders. The complainants state that on several times they requested the OPs to provide club membership as well as facilities of full fledged South City Club and each and every occasion the OPs orally expressed that the club membership as well as facilities will be provided within a short period of time but till 16.02.2012 there was no existence of South City Club. On 22.02.2012 the complainants sent one Advocate’s letter to the OP No.1 and by a reply, the OP No.1 has admitted the delay and latches to provide club membership as well as its facilities. The complainants state that in the year, 2004 they paid Rs.30,000/- for club membership and further paid a sum of Rs.30,000/- in the year 2008 totalling Rs.60,000/- for club membership but no club facility has yet been provided. Hence, the complainants have approached this Commission with prayer for certain reliefs, viz.- (a) a direction upon the opposite parties to provide club membership as well as full fledged club facilities of South City Club as per STC to the complainants; (b) to pay compensation of Rs. 10,00,000/- for harassment and mental agony; (c) to pay litigation cost of Rs.2,00,000/- etc.

The Opposite Party No.1 Company by filing a written version has stated that on 20.09.2010 the Deed of Conveyance has been executed in favour of the complainant wherein in Clause No.6.4 it has been recorded that the complainants shall ever have any claim whatsoever against either of the vendors regarding construction/completion of the unit, the Tower comprising it, the Cypress Tower or objection any time in future. The OP No.1 has stated that there are 1672 numbers of flats are situated in the complex and all the owners thereof are entitled to be and have become members of the club. The OP No.1 has alleged that the complainants are the only persons who are complaining despite the fact that the complainant no.1 continues to enjoy the club facilities and the club was ready to function in the year, 2014 after obtaining the Completion Certificate from the Kolkata Municipal Corporation (KMC). The OP No.1 submits that as there is no deficiency of services on the part of them, the complaint should be dismissed with costs.

Both the parties have tendered evidence through affidavit. They have also filed reply against the questionnaire set forth by their adversaries. The parties have relied upon several documents in support of their respective cases along with their affidavits. However, at the time of final hearing, the complainants did not participate inspite of last chance and special chance was given to them. However, the OP No.1 participated in the final hearing and filed brief notes of arguments in support of their case.

At the outset, it would be pertinent to record that prior to filing of this complaint in this Commission, the complainants had earlier filed a complaint before the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Alipore being CC/81/2012 which was ultimately held to be non maintainable on the ground of pecuniary jurisdiction. Subsequently, the instant complaint has been filed in this Commission on 16.12.2013.

From the averment in Paragraph-13 of the petition of complaint itself, it is transpired that the possession of the flat being Flat No.1 on the 13th floor of Tower-I, ‘OAK’ in the said housing complex lying and situated Premises No.375, Prince Anwar Shah Road, P.S.- Jadavpur, Kolkata – 700068 within the local limits of Ward No.93 of Kolkata Municipal Corporation was handed over to the complainants in the year, 2008. In Paragraph-8 of the petition of complaint, it has further been stated that the OP No.1 has executed the Deed of Conveyance in favour of the complainants on 20.09.2010. Nowhere in the petition of complaint, the complainants have mentioned when the cause of action of this case arose. As it appears, the complainants took delivery of possession of the unit in the year, 2008 and as such in the instant case the cause of action will certainly arose in the year 2008 when the possession was delivered to the complainants after obtaining Completion Certificate from the competent authority. However, the complainants lodged the complaint before the Ld. District Forum on 10.04.2012 i.e. much after two years from the date of accrual of cause of action. For appreciation of the matter, it would be worthwhile to reproduce the provisions of Section 24A of the Act which runs as follows:

“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 the 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 provisions is clearly peremptory and mandatory in nature requiring the Consumer Fora to see at the time of entertaining the complaint, whether it has been within the stipulated period of two years from the date of cause of action. In a decision reported in 2009 (4) CPR 17 (Kandimalla Raghavaiah & Co. – vs. – National Insurance Co. Ltd. & Anr.) the Hon’ble Supreme Court after adopting the view of the observations of the Hon’ble Apex Court reported in 2009 (3) CPR 107 (State Bank of India –Vs- B.S. Agricultural Industries) has observed –

“As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside”.

Evidently, at the time of filing complaint, the complainants did not file any application under Section 24A (2) of the Act with a prayer for condonation of delay. Therefore, the complaint should not have been admitted or registered for want of legislative mandate.

In any case, when the point of limitation has not been raised in the written version and the parties already led their evidence and the case is otherwise ready for disposal on merit, I think it would not be wise to dispose of the complaint simply on the ground that the complaint has not been filed even before the Ld. District Forum within two years from the date of delivery of possession.

The genesis of the dispute is not-providing the club membership as well as full fledged club facilities to the complainants in the South City Club. It remains undisputed that in the year, 2004 the complainants have paid Rs.30,000/- as 50% of total amount of club membership amounting to Rs.60,000/-. Subsequently, complainants have paid the balance amount of Rs.30,000/- in the year 2008 at the time of taking delivery of possession of the unit meaning thereby the complainants have paid Rs.60,000/- for club membership in the South City Club.

The evidence on record speaks that on 20.09.2010 the OP No.1 has executed the Deed of Conveyance in favour of the complainants. The Clause 6.4 of the Deed of Conveyance appears to be relevant in this regard which rewrites below:

“6.4 Confirmation: The purchaser hereby confirms and agrees that he/she it has no nor shall ever have any claim whatsoever against either of the vendors regarding construction/completion of the unit, the tower comprising it, the Cypress Tower or to the terms of any of the Declarations and agrees not to raise any claim or objection at any time in future”.

The materials on record speaks that on 02.02.2015 the OP No.1 had handed over possession, management and control of the South City Club in favour of the Apartment Owners’ Association of the Complex and from the said date, the Association had acquired right and complete control over the management and affairs of South City Club. The factum of execution of the said agreement has been admitted by the complainants. In fact, there is no cross examination on the part of complainants to that effect. It is well settled that the effect of non-examination on an issue is that the same is deemed to have been admitted.

In this regard, the letter dated 23.04.2015 given by one Sri Aloke Ghosh, Secretary of South City Apartment Owners’ Association appears to be relevant which speaks that the complainant no.1 Mr. Rajendra Kumar Goyel, Owner of Flat No.13L, Tower-I has been regularly using the club facilities, as per records of payment of club usages charges from October, 2015 till April, 2016.

Evidently, there are 1672 apartment owners at South City Complex apart from the complainants. No dispute has been raised by any other apartment owner of South City Complex as regards the club facilities. It implies that the other flat owners are either have no grievances or they are satisfied with the club facilities provided by OP No.1. In a decision reported in 2013 SCC online Bomb 1455 [M/s. Calvin Properties & Housing – Vs. – Green Fields Cooperative Housing Society Ltd. & Ors.] it has been held that a member of

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a society has no independent right and has to act and speak through the society. The fact remains that the complainants challenged the agreement between OP No.1 and South City Apartment Owners’ Association dated 02.02.2015 filed a suit being T.S. No.71/2014 before the Ld. 1st Civil Judge (Junior Division) at Alipore and in that suit, an application for injunction was filed but the Ld. Civil Judge refused to pass any ad interim injunction. Challenging the said order, the complainants preferred an appeal being Misc. Appeal No.89/2015 but the Ld. District Judge, South 24 Parganas at Alipore had refused to pass an ad-interim order in favour of the complainants. Being aggrieved, the complainants moved one revisional application being C.O. No.1640/2016 in the Hon’ble High Court but no interim order has been passed by the Hon’ble High Court. In that perspective, the terms of the agreement are binding upon the complainants also like other apartment owners of South City Complex. On evaluation of materials on record, I have no hesitation to hold that there is no deficiency on the part of opposite parties and, therefore, the complaint being devoid of merit is liable to be dismissed. Consequently, the complaint is dismissed on contest. However, there will be no order as to costs.
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