M/S. The Nest & Ors vs Rajiv Kumar Singh & Ors

This revision petition has been filed by the petitioners M/s. The Nest & Ors. against the order dated 02.08.2017 of the State Consumer Disputes Redressal Commission, West Bengal, (in short 'the State Commission') passed in FA No.1058 of 2013.

Brief facts of the case are that the respondent Nos.1 & 2 entered into an agreement for sale with the petitioners dated 4.4.2007 for a residential flat and a car parking. However, a separate agreement was also signed by the same parties dated 4.4.2007 for car parking. According to this agreement Rs.50,000/- was to be paid by the purchaser/respondent Nos.1 & 2 to the petitioners.

It is the case of the petitioners that respondent Nos.1 & 2 filed a consumer complaint before the District Consumer Disputes Redressal Forum, (in short 'the District Forum') being CC No.128 of 2008 in respect of delivery of possession of the flat. However, in this complaint, no prayer was made in respect of car parking. Learned counsel for the petitioners mentioned that in fact the cheque of Rs.50,000/-, which was given by the purchasers was not deposited in the bank and it was not encashed. In fact, there was subsequently an understanding between the parties that the car parking space would not be purchased by the purchasers and therefore, the original agreement for sale of car parking was torn.In a sense, when the original agreement was torn and cheque was not encashed, the understanding between the parties for cancelling the agreement to sell for car parking space was complete and final. The purchasers again filed a second complaint being CC 378 of 2012 before the District Forum for giving possession of the car parking space.The District Forum dismissed this complaint vide its order dated 19.9.2013.The complainants preferred appeal before the State Commission and the State Commission passed the following order:-

"Hence the appeal stands allowed and the impugned judgment and order dated 19/09/2013 stands set aside.The appellants do get the decree in terms of their prayer 'a' of the petition of complaint of CC/378/2012.The respondents are directed to execute and register the deed of conveyance and to deliver physical possession of the open car parking space to the appellants for keeping a small car 'like Maruti 800' at the premises no.127 Kalipada Mukherjee Road, Kolkata-700 008 on receipt of the consideration of Rs.50,000/- (Rupees fifty thousand) (since earlier cheque was not encashed) and the said process shall be completed within a period of one month from the date of this order. So far as the other prayers of the complaint case in CC/378/2012 are concerned, we decline to pass any other relief.Parties do bear their respective costs of Appeal."

Aggrieved by this order of the State Commission, the opposite parties/petitioners have filed this revision petition.

Heard the learned counsel for both the sides and perused the record. The contention of the learned counsel for the petitioners is that when the first complaint No. 128 of 2008 was filed before the District Forum and the agreement to sell dated 4.4.2007 was for flat as well as for the car parking space, the complainants should have filed the complaint for possession of flat as well as for car parking space.As per order II Rule 2 of the Code of Civil Procedure, 1908 (CPC) complainants have to claim the complete relief in the complaint and if any portion is left, he cannot file another complaint for left over portion.Thus, the complainant is barred from filing the second complaint in respect of the car parking space.

Learned counsel for the petitioners further stated that the agreement to sell was signed in the year 2007 and the complaint was filed in 2012 i.e. much beyond the period of limitation of 2 years provided in the Consumer Protection Act 1986.The District Forum has observed that the complaint was hit by the law of limitation. However, the State Commission has observed the following in its order: -

"Ld. Trial Forum in the impugned judgment stated that the claim of the complainant/appellant was hit by law of limitation since there was no correspondence between the parties with regard to implementation of the agreement for giving possession of the car parking space.But we are afraid, we cannot accept the said contention since the agreement between the parties (which at page 109 of the file) had a nexus with the earlier agreement in respect of which a long lasting litigation between the parties was going on. In the premises it cannot be said that the agreement with regard to purchase of the car parking space lost its force regarding implementation of the agreement due to efflux of time.Hence, regard being had to the facts of the case we firmly conclude that the appellants herein deserve reliefs in terms of their prayer of CC/378/2012 and Ld. Trial Forum was not justified in declining to give such reliefs."

It was further stated by the learned counsel for the petitioners that the original agreement to sell for car parking dated 4.4.2007 was torn and parties cancelled that agreement and the cheque given by the complainants was also not encashed.Learned counsel stated that this Commission ordered the respondents/complainants to file the original agreement for sale for car parking space, but the original agreement has not been filed.In fact the respondent Nos.1 & 2 filed photocopy of this agreement before the District Forum as the original agreement had already been torn.The agreement for sale for car parking mentions that if cheque of Rs.50,000/- is bounced then agreement to sell for car parking space shall be treated as cancelled.Learned counsel argued that the cheque was not presented to the bank for encashment because understanding was reached between the parties to cancel the agreement.The State Commission has taken a technical view that as the cheque was not dishonoured, so the agreement could not be treated as cancelled.It was contended by the learned counsel that dishonouring of cheque would also mean that the money is not received by the petitioners and if the cheque is not presented for encashment then also the petitioners are not getting the amount.Thus, in fact, both these things produced same result i.e. non receipt of the amount of Rs.50,000/- by the petitioners.It was further pointed out by the learned counsel for the petitioners that the flat has already been sold by the complainants to a third party.It is not clear with what intention the complainants are pursuing the possession of the car parking space.In this regard, learned counsel has filed the copy of the registered sale deed dated 31.8.20017.

On the other hand learned counsel for respondents Nos.1& 2/complainants stated that original agreement for sale for car parking has been stolen by somebody and that is why it is not available with the respondents.He stated that the copy of the agreement for sale has already been filed, which proves that there was an agreement for sale for car parking space.A cheque of Rs.50,000/- was given by the respondents to the petitioners in pursuance of the agreement.

It was further stated that there was no question of delay in filing the present complaint because the State Commission has already observed that the agreement has been linked with the other agreement, which was for flat as the car parking is also mentioned in that agreement.

I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and examined the record.The non-production of the original agreement for sale dated 4.4.2007 for car parking space gives strength to the case of the petitioners that the original agreement was torn when an understanding was reached between the parties that the agreement for sale for car parking space will be cancelled.Moreover, the cheque was not encashed by the petitioners. As the cheque was not encashed, the amount of Rs.50,000/- would not have been debited to the account of the complainants.The complainants should have then realised that the petitioners have not taken the money and in that circumstance, what will happen to the agreement and the car parking space.The complainants pursued the complaint No.128 of 2008 before the District Forum for the flat and did not pursue implementation of the agreement for sale for car parking space.If there is nexus between the two agreements as observed by the State Commission and the car parking space is also mentioned in the agreement to sell for flat, then as per Order II Rule 2 of the CPC, the complainants should have filed complaint in respect of the flat as well as for the car parking space.It is also clear from Order II Rule 3 that if a claim is omitted then otherwise he cannot sue the opposite party for the same claim.For convenience the Order II Rule 2 & 3 of CPC are reproduced as under:-

"2. Suit to include the whole claim-(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or internationally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.

Joinder of causes of action- (1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly;and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.

(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject -matters at the date of instituting the suit."

If the complainants claim that there is separate agreement for car parking space then there is a huge delay in filing the present complaint No. 378 /2012 as the agreement was entered on 4.4.2007 and the complaint has been filed in the year 2012.It is the duty of the consumer forum to see whether the complaint has been filed within the period of limitation given in Consumer Protection Act, 1986.Hon'ble Supreme Court in the matter of State Bank of India Vs. M/s. B.S. Agricultural Industries (I) AIR 2009 SC 2210 has held that:-

"8. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, `shall not admit a complaint' occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. 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".

The District Forum has found that the complaint was barred by limitation.The State Commission has linked this agreement to the other agreement, which was for the flat and has accepted the prayer of the complainants while clearly mentioning that the complaint is within time.

From the above examination, it is clear that if the complaint is treated as based on the agreement for car parking which is linked to another agreement for the flat for which complaint was already filed, then the present complaint is hit by Order II Rule 2 & 3 of CPC and thus, the complaint is not maintainable.If the agreement to sell for car parking is separate and independent agreement then the complaint is hit by law of limitation.

Based on the above discussion, the Complaint No. 378 of 2012 for implementation of the agreement dated 4.4.2007 in respect of car parking space was hopelessly barred by limitation and State Commission has committed error in allowing the complaint.The complaint is also hit by the provisions of Order II Rule 2 & 3 and thus, this complaint was also not maintainable.On these two grounds the complaint was liable to be dismissed.

On the basis of the above discussion, the revision petition No.3352 of 2017 is allowed and order dated 02.08.2017 of the State Commission is set aside and order of the District Forum dated 19.9.2013 is affirmed.