BEFORE THE
HON’BLE STATE CONSUMER DISPUTES REDRESSAL COMMISSION
WEST BENGAL
Complaint Case No. CC/263/2020
In the matter of:
Sri Sanjib Das … Complainant
Vs.
M/s. Riverbank Developers Pvt. Ltd.
& Anr. … Opposite Parties
BRIEF NOTES OF ARGUMENT ON BEHALF OF THE COMPLAINANT
- Maintainability and Jurisdiction:
The complaint is well
within the jurisdiction of this Hon’ble Commission, both territorial and
pecuniary, as the project site and offices of the opposite parties are situated
in Kolkata, West Bengal, and the claim exceeds Rs. 20 lakhs, since the present
Consumer Complaint has been placed under Section 17 of the Consumer Protection
Act’ 1986, on 08-07-2020.
The complaint is not
barred by limitation as the cause of action is continuous in nature, having
started from 30.01.2014 and continuing through each payment made up to August
2017, and further revived by legal notice dated 19.03.2020, which remains
unanswered and un-acted upon.
Reference to
paragraph no. 11 – Possession of the GTC, which stated as Subject to force
majeure, RDPL will endavour to give possession of the Apartment to the
allottee(s) within 42 (forty two) months from the date of allotment of the
Apartment. Therefore, a period 3 years 6 months has been elapsed on 1st
day of September’ 2017 (01-09-2017), though the Opposite Parties did not cause
any endavour to deliver the physical possession even after having all the
payments including the Stamps and Registration Charges from the Complainant.
In consumer cases, a "continuing
cause of action" refers to a situation where the wrong or breach is
ongoing, causing a fresh cause of action to arise every time it
continues. This extends the limitation period for filing a complaint, as
the right to file a complaint is considered to be continuously
accruing. Essentially, if a wrong is ongoing, the consumer doesn't have to
wait for the final breach to file a complaint, but can do so at any time during
the continuous wrong.
The case of Saroj Kharbanda v. Bigjo'S Estates Limited adjudicated
by the National
Consumer Disputes Redressal Commission (NCDRC) on February 1,
2018, marks a significant development in the interpretation and application of
the Consumer Protection Act, 1986, specifically concerning the limitation
provisions under Section 24A. This case revolves around a consumer complaint
filed by Mrs. Saroj Kharbanda against Bigjo's Estates Limited, alleging
non-delivery of a residential plot despite having deposited a substantial
amount with the builder.
Additionally, the NCDRC invoked the
landmark Supreme Court decision in Meerut
Development Authority Vs. M.K. Gupta, which clarified that buyers
have a recurrent cause of action for non-delivery of possession, reinforcing
the principle that limitation periods under Section 24A commence only upon the
seller's formal refusal to deliver. The Commission held that non-delivery of
possession constitutes a continuous wrong, thereby creating a perpetual cause
of action until possession is delivered or formally refused.
- Nature of the Complaint:
The complaint arises
from deficiency in service and unfair trade practice by the opposite
parties, who failed to deliver the possession of the allotted flat and car
parking space and did not execute the Deed of Conveyance despite full payment.
- False and Misleading Representations:
The opposite parties
lured the complainant through advertisements and brochures offering luxurious
amenities like a golf course, club, hospital, riverside promenade, etc., which
were never materialized or provided.
The complainant was
influenced by these representations to purchase an apartment at the “Hiland
Greens” project.
- Details of Transaction:
The complainant was
allotted Apartment No. 14A6, 14th
Floor, Tower No. 17.
A total sum of Rs. 24,39,545/- was paid by the complainant
including registration charges and all dues.
The initial agreed
price was Rs. 19,80,000/-, but
the complainant paid in excess, amounting to Rs. 2,65,745/- over and above.
- Non-Delivery of Possession and Execution of
Deed:
Despite receiving the
full consideration along with registration charges, the opposite parties failed
to (i) Deliver possession of the said flat and parking space, and (ii) Execute
and register the Deed of Conveyance in favour of the complainant.
As of the date of
filing the complaint and affidavit of evidence, a period of over 31 months had lapsed from the last
payment made without delivery of possession.
- Legal Notice and No Response:
A legal notice dated 19.03.2020 was served upon the
opposite parties demanding refund with interest and compensation.
No reply or redressal
was provided, indicating gross negligence and willful deficiency in service.
- Written Version of Opposite Parties:
The written version
filed on behalf of the opposite parties is defective, lacking proper
authorization or board resolution.
The defense of
limitation and HIRA extension due to COVID-19 is misconceived and
unsustainable, as delay far exceeds the HIRA-extended period and no bona fide
explanation exists.
- Reliefs Sought:
(i)
Refund
of Rs. 24,39,545/- with
appropriate banking interest.
(ii)
Compensation
of Rs. 6,00,000/- for mental
agony, harassment and physical inconvenience.
(iii) Costs of litigation
and any other relief as deemed fit.
- Supporting Evidence and Exhibits:
(i)
General
Terms and Conditions (Annexure “A”).
(ii)
All
money receipts (Annexure “B”).
(iii) Legal Notice and
proof of dispatch (Annexure “C”).
- Prayer for Consideration:
(i)
The
Complainant is a victim of deliberate and willful acts of omission and
commission by the opposite parties.
(ii)
The
complainant has fulfilled all obligations; the opposite parties failed in their
duty to deliver.
(iii) Hence, this Hon’ble
Commission may be pleased to allow the complaint with all reliefs as prayed.
Filed by:
Through Advocate
Date: 6th May’ 2025
Place: Kolkata
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