Rita Chatterjee and Anr. -VS- Bengal Ambuja Housing Development Ltd. and Ors.

advtanmoy 27/09/2017 6 minutes read

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 1042 OF 2015
(Against the Order dated 15/10/2015 in Complaint No. 265/2014 of the State Commission West Bengal)
1. RITA CHATTERJEE & ANR.
WIFE OF SRI TAPAN KUMAR CHATTERJEE, R/O.
AT 403 WIMBLEDON: 10-FOUR BUNGALOWS
ROAD, (N. DUTTA MARG), (P.S. D.N. NAGAR
POLICE STATION)
MUMBAI-400053 ………..Appellant(s)
Versus
1. BENGAL AMBUJA HOUSING DEVELOPMENT
LTD. & 3 ORS.
REGD. OFFICE AT THE VISHWAKARMA
BUILDING, 86C TOPSIA ROAD, (SOUTH), AND
BEING UNDER THE POLICE STATION TOPSIA,
KOLKATA-700046

2. UDITA OWNERS ASSOCIATION
OFFICE AT THE VISHWAKARMA BUILDING, 86C
TOPSIA ROAD (SOUTH),
KOLKATA-700046

3. SRI N. K. JAIN
PRESIDENT OF BENGAL AMBUJA HOUSING
DEVELOPMENT LTD., OWNERS’ ASSOCIATION,
HAVING HIS OFFICE AT THE VISHWAKARMA
BUILDING, 86C TOPSIA ROAD (SOUTH),
KOLKATA-7000046

4. SRI. C.P. KAKARANIA ,
VICE PRESIDENT LEGAL AFFAIRS O BENGAL
AMBUJA HOUSING DEVELOPEMNT LTD.,
HAVING HIS OFFICE AT THE VISHWAKARMA
BUILDING, 86C TOPSIA ROAD, (SOUTH),
KOLKATA-700046 ………..Respondent(s)

BEFORE:
HON’BLE MR. JUSTICE D.K. JAIN,PRESIDENT
HON’BLE MRS. M. SHREESHA,MEMBER

For the Appellant : Mr. Tapan Chatterjee, Appellant-2, in person, &
Mr. Javed Ur Rahman, Advocate

For the Respondent : Mr. Sanjoy Kumar Ghosh, Advocate

Dated : 30 Mar 2017

ORDER
1. Delay condoned.
2. This First Appeal, under Section 19 of the Consumer Protection Act, 1986 (for short “the
Act”), by the Complainants, is directed against the order dated 15.10.2015, passed by the West
Bengal State Consumer Disputes Redressal Commission at Kolkata (for short “the State
Commission”) in Miscellaneous Application No. MA/838/2015 in Complaint Case No.
CC/265/2014. By the impugned order, while allowing the said Application, wherein the Opposite
Parties had prayed for dismissal of the Complaint on the ground of limitation, the State
Commission has dismissed the Complaint as barred by limitation.

3. Upon notice, the Opposite Parties are represented through their Counsel, Mr. Sanjoy Kumar Ghosh.

4. Since the controversy in the present Appeal lies in a narrow compass and is confined to the question as to whether or not the Complaint was barred by limitation, we deem it unnecessary to state the facts, occasioning the filing of the Complaint, in detail. It would suffice to note that having been put in possession of the flat in question on 23.09.2000 and the conveyance deed in respect thereof having been executed in their favour, the Complainants seem to have requested Opposite Party No.1, namely, Bengal Ambuja Housing Development Ltd., a joint venture enterprise of the West Bengal Housing Board and Gujarat Ambuja Cement Ltd., to furnish certain documents, including the Building Completion Certificate, and also to adequately compensate them for not providing an Auditorium and Health Spa in the Unnayan Complex, as promised in the brochure issued at the time of launch of the project as also in the general terms and conditions, allegedly supplied to the allottees of the flats. Having failed to elicit any positive response from the said Opposite Party, the Complainants filed the Complaint before the State Commission, praying for reliefs on several counts, as mentioned in the prayer clause therein.

5. On service of notice in the Complaint, instead of filing its Written Version, Opposite Party No.1, Respondent No.1 herein, preferred to file the afore-stated Application seeking dismissal of the Complaint on the ground that the possession of the flat having been delivered to the Complainants in the year 2000, the Complaint filed in the year 2014 was miserably barred by limitation. It is on this Application that the order impugned in this Appeal has been passed by the State Commission. Hence, the Appeal.

6. We have heard Complainant No.2, who appears in person, and Mr. Ghosh, learned Counsel appearing for all the Respondents, at some length. We have also perused the Complaint and the supporting documents on record, in particular the afore-noted brochure; the general terms and conditions as also the covenants in the conveyance deed dated 26.03.2002, defining the Complex in question, viz., Udita Complex, we are of the opinion that regard being had to the nature of relief claimed in the Complaint, some part of the cause of action still continued in favour of the Complainants, even after taking possession of the flat in question and execution of the conveyance deed in respect thereof. Hence, it was not a case where the Complaint could be dismissed at the threshold even without calling upon the Opposite Parties to state their stand in respect of each of the claims made by the Complainants in the Complaint. At this juncture, we say no more lest any observation on the merits of the reliefs claimed in the Complaint may cause prejudice to either of the parties.

7. Consequently, the Appeal is allowed; the impugned order is set aside; and the Complaint is restored to the board of the State Commission for adjudication on merits.

8. At this stage, it is pointed out that despite due service of notice in the Complaint on all the Opposite Parties, Written Versions on their behalf were not filed within the time stipulated under the Act. Mr. Chatterjee, Complainant No.2 states that in order to avoid further delay in the final adjudication of the Complaint, both the Complainants would have no objection if some reasonable time is granted to the Opposite Parties to file their respective Written Versions, provided the complainants are adequately compensated for the delay already caused.

9. In view of the said submission and in the light of the observations made by the Hon’ble
Supreme Court in its decision dated 10.02.2017 in Reliance General Insurance Co. Ltd. and Anr. V. M/s Mampee Timbers and Hardwares Pvt. Ltd. and Anr. (Civil Appeal No. nil of 2017 – D.No. 2365 of 2017), we direct that if the Written Version on behalf of the Opposite Parties is filed within 30 days from today, with advance copy to the Complainants, the same shall be taken on record, subject to the Opposite Parties collectively paying to the Complainants a sum of 30,000/- as costs. The costs shall be paid before the State Commission. If so advised, it will be open to the Complainants to file their rejoinder affidavit to the Written Version(s).

10. The parties/their Counsel are directed to appear before the State Commission on 02.05.2017 for further proceedings. Since the Complaint was filed in the year 2014, we expect and hope that the State Commission shall try to take a final decision therein as expeditiously as practicable.
11. The Appeal stands disposed of in the above terms.

………………….J
D.K. JAIN
PRESIDENT
………………….
M. SHREESHA
MEMBER

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