National Consumer Disputes Redressal
Shri Maqbool Alam Ansari, vs Mr. M.S.K. Mapara on 9 February, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION
PETITION NO. 2179 OF 2009.
(From the order dated 19.03.2009 in Appeal No. 1331 of
2008 of the State Consumer Disputes
Redressal Commission, Maharashtra)
Shri Maqbool Alam Ansari,
Smt.
Shahidunissa Ansari,
F-101,
Pioneer Arcade, Plot No. 37,
Sector-5, New
Panvel (East)
Distt. Rajgad-410206. Petitioners.
Versus
Mr. M.S.K. Mapara
Proprietor-M/S Pioneer Builders,
Office at Fatema Manzil,
Plot No. 37A, Sector-5
New Panvel (East)
Distt. Rajgad-410206.
.Respondent.
BEFORE:
HONBLE MR.JUSTICE V.B. GUPTA, PRESIDING
MEMBER
HONBLE MR.SURESH CHANDRA, MEMBER
For the Petitioner (s) : Mr. S.K. Sharma, Advocate.
For the Respondent(s): Mr. B.S. Nagar and Mr. Vipul
Pandey
Advocates with respondent in person.
Pronounced
on 9th February, 2012.
ORDER
PER JUSTICE V.B. GUPTA, PRESIDING MEMBER Present revision petition has been filed by petitioners/complainants challenging the order dated 19-03- 2009, passed by State Consumer Disputes Redressal Commission, Maharashtra ( for short as State Commission) vide which appeal of respondent/opposite party was allowed.
2. Brief facts are that respondent is a builder, whereas petitioners are flat purchasers. Respondent agreed to sell a flat admeasuring 701 sq. feet for consideration of Rs. 6,30,900/- to the petitioners. Accordingly, registered agreement was executed between the parties on 26.05.2004. Petitioners paid the entire consideration to the respondent. Respondent obtained occupation certificate and delivered the possession of the flat to the petitioners on 31.08.2004. Petitioners noticed the defects in construction and also noticed that the area of the flat was less.
Accordingly, petitioners served notice dated 26.07.2007 on the respondent. Respondent in its reply dated 22.08.2007, denied the allegations made by the petitioners against him.
3. Petitioners, thereafter filed a complaint before District Consumer Disputes Redressal Forum, Ali Bagh (for short as District Forum). Respondent opposed the said complaint and in its written statement, respondent specifically raised the point of limitation.
4. District Forum relying upon the Court Commissioners report, came to the conclusion that area of the flat admeasures to 595 sq. ft. It, therefore, directed the respondent to pay a sum of Rs. 3,18,000/- to the petitioners for less area admeasuring 106 sq. ft. It further directed the petitioners to pay Rs. 25,000/- to the respondent for formation of Co-operative Society and also awarded Rs. 5,000/- to the petitioners towards physical, mental trouble and Rs. 2,000/- towards legal expenses.
5. Aggrieved by the order of District Forum, respondent filed an appeal before the State Commission which allowed the appeal of the respondent and set aside the order of the District Forum. Thus, present revision petition has been filed by the petitioners.
6. Respondent has filed reply to the revision petition.
7. We have heard the learned counsel for the parties and have also gone through the written submissions filed by the petitioners in support of their case.
8. It has been argued by learned counsel for petitioners that cause of action arose on 22.08.2007, when respondent in its reply denied to rectify the defects as pointed out by the petitioner in its notice dated 26.07.2007. The Complaint in question which was filed on 31.10.2007, thus is well within the period of limitation.
9. Other contention made by learned counsel for the petitioners is that as per provision of Section-7 (2) of Maharashtra Ownership of Flats Act, 1963, respondent is liable to either rectify the defects and deficiency in the premises and structural changes (reduction of area) made by them in the promised flat or to pay compensation to the petitioners for the same.
10. It is also contended that petitioners have made specific prayers for formation and registration of a Co-operative Housing Society for executing Conveyance deed, which is statutory obligation on the part of the respondent, which it has failed to do so.
11. In support of its contention, learned counsel for petitioners has relied upon the following judgments;
(i) Mr. Ghansi Ram Lal Shah Vs. Smt. Supriya Suhas Sarmalkar ( RP No. 337 of 2011 ) decided by this Commission on 06.09.2011 ;
(ii) Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Co-Operative Housing Society Limited ( First Apeal NO. 2182 of 2007) decided on 25.04.2008 by High Court at Bombay and
(iii) Ghaziabad Development Authority Vs. Gurdutt Pandey ( R.P. No. 152 of
200) decided on 21.08.2002 by this Commission.
12. On the other hand, it is contended by learned counsel for the respondent that possession of flat in question was given to the petitioners on 31.08.2004. However, after taking the possession of flat, petitioners did not bring to the notice of the respondent any deficiency, since there was no defect in the flat. Moreover, Rs. 3 lacs are due from the petitioners which they have failed to pay.
13. Other contention is that complaint of the petitioners is time barred, since petitioners could not make any complaint after two years and 11 months from the date of taking possession of the flat.
14. It is also contended that due to non payment of charges by the petitioners, respondent is unable to execute the conveyance deed. The present revision, under these circumstances is not maintainable and the same is liable to be dismissed.
15. In support, learned counsel for respondents cited the following judgements;
(i) H.U.D.A. Vs. Kamaljit Kaur Ahluwalia & Ors., III (2005) CPJ 64 (NC) and
(ii) Pushpa Builders Flat Buyers Assn. Vs. Pushpa Builders Ltd. II (2002) CPJ 83 (NC).
16. As per averments made in the complaint, cause of action arose on 26.07.2007. Para no. 14 of the complaint is relevant in this regard and it reads as under;
Para 14. Cause for this complaint is aroused on 26.07.2007 when complainants Advocate has sent notice to the opponent and on 22.8.2007 when the opponent has given false and frivolous reply to the said notice and on 3.10.2007 when rejoinder was sent to the reply of the opponent but the opposite failed to comply with the same.
17. Possession of the flat in question was received by the petitioners on 31.08.2004 as apparent from the averments in para no. 5 of the complaint, which states;
5. On 31.8.2004 when the possession of the said residential remises was given to the complainant by the opponent the electric supply was provided to the flat of the complainant from the meter in the name of the opponent. As stated in the said agreement no new electric meter was erected in the said flat and for the period of two years the electric was provided from the meter of the said opponent. It was brought to the notice of the opponent by the complainant that this act is illegal and unauthorized.
18. State Commission, vide its impugned order has observed;
We carefully perused the entire material placed on record. It is clearly seen from the record that possession of the flat was delivered to the flat purchasers on 31/08/2004. The consumer complaint is admittedly filed on 31/10/2007. As per Section 24(A) of Consumer Protection Act, 1986, consumer complaint is required to be filed within two years from the date on which cause of action has arisen. Consumer complaint can be entertained ever after the period specified in Section 24(a) sub-Section (2) if the complaint satisfy the Forum that he had sufficient cause for filing consumer complaint within such period. In the case in hand the complainants did not file application for condonation for delay. In the case in hand the complainants did not file application for condonation for delay. In the absence of prayer for condonation of delay, the delay in filing the consumer complaint cannot be condoned suo-moto. The point of limitation is raised in the written statement. District Forum however ignored the vital point of limitation and allowed the consumer complaint.
The District Forum also ignored the terms and conditions of the contract. Besides consideration of Rs. 6,03,900/- the flat purchasers were required to pay the following charges:-
i) MSEB Deposits and Cable laying charges.
ii) Water Connection Deposits and meter charges.
iii) CIDCO service charges, maintenance charges including deposits.
iv) Development charges.
v) All charges towards Society formation and registration charges, etc.
vi) Stamp duty, registration charges and other miscellaneous charges on the lease deed to be executed in the name of Society/Association.
vii) Other levies/charges/taxes, if any.
viii) Taxes and charges levied by Corporation/NMMC.
ix) Property charges and taxes already paid by the Builder.
The flat purchases have only paid Rs. 40,000/- as development charges. There is nothing on record to show that flat purchasers paid charges specified in I, II, III and V to IX. The District Forum did not consider this issue in proper prospective. The District Forum cannot substitute its view for written terms and conditions.
The flat purchasers brought the time barred stale claim before the District Forum. District Forum conveniently ignored serious challenge to the maintainability of the consumer complaint on the ground of limitation. The consumer complaint is hopelessly time barred. The complainants did not place on record application for condonation of delay. The point of limitation goes to the root of the matter. The District Forum should not have entertained the time barred stale claim in absence of prayer for condonation of delay. In the result, we pass the following order:-
1.
Appeal is allowed.
2. Impugned order under challenge is quashed and set aside.
19. Respondents case is that the possession of flat was given on 31.8.2004 and after taking the possession, petitioners did not bring any defect to its notice.
20. Relevant paras of written statement in this regard are 9 and 11, which reads as under;
9. On 31.8.2004 the possession of the said residential flat is given by the opponent to the complainant but after taking possession of the said flat the complainant have not brought to the notice of opponent any defects but as there were no defects in the same and hence no question arises to brought to the notice of the opponent. The complainant has not asked to fulfill or rectify any defects in the said flat. As per the provisions of Clause no. 3 (B) of the said agreement the complainant have paid only Rs. 40,000/- as development charges and has not paid the balance amount even after frequent request. According to that the amount of Rs. 3,22,163/- is due from the complainant to the opponent and the particulars of the same are annexed to the statement of the opponent and this specification be also deed and read as evidence.
11. Contents of para 5 of the complaint are false and mischievous and opponent deny the same and call upon complainant to strictly prove the same. Electric meter was provided to the complainant through MSEB and was erected and was working well. The said meter was transferred in the name of the complainant only after filling the X, Y, Z form by the complainant and the capacity of the meter depends upon the load of electricity and the meter is being supplied by MSEB. And hence no question arises to say that the opponent has provided defective meter. It is the entire responsibility of the MSEB to look after and maintain the said meter.
21. Admittedly, possession of the flat in question was received by petitioners on 31.8.2004 and at that time no objection was taken by them with regard to alleged defects. Petitioners had two years to file the Consumer Complaint but as per petitioners own case, the complaint was filed only on 31.10.2007, that is, much beyond the period of limitation.
22. In H.U.D.A . Vs. Kamaljeet Kaur (Supra) this Commission has held;
In our view, from the facts stated above it is apparently clear that in the present case, there was no question of directing the HUDA to pay compensation for delay in handing over possession of the plot, firstly on the ground that possession was accepted by the complainant without any objection. Secondly complainant has accepted the possession in 1992 and, therefore, complaint after lapse of five years for the said cause was not maintainable. Thirdly, there was no delay in allotment of the plot.
23. In Pushpa Builders Flat Buyers Assn. (Supra) it was held;
The cause of action in the case at best emanated from the date of possession, i.e., 1995 and 1996, whereas the complaint in this case has been filed in the year 2000 which shows that this complaint before us is clearly barred by time under Section 24A of the Consumer Protection Act. There is no plea or application for condonation of delay on record nor is there any rejoinder filed by the complainant meeting this point. We are unable to sustain this complaint, hence, dismissed. No order on costs.
24. In view of clear proposition of law that complaint has to be filed within two years from the date of cause of action, we find no illegally in the impugned order passed by the State Commission holding that complaint is barred by time under Section 24A of the Act.
25. None of the judgments, cited by learned counsel for the petitioners in support of their contentions are applicable to the facts of the present case, as in the case in hand, the complaint of the petitioners is admittedly time barred and further they have not paid the dues, which they are bound to pay.
26. This plea of the petitioners that cause for filing of the complaint arose on 26.7.2007 when petitioners Advocate sent a legal notice, is of no help to them. Cause of action cannot arise from the date when legal notice is served. By serving the legal notice or by making representation, the period of limitation cannot be extended by petitioners. In this context, reference can be made to the law laid down by Honble Supreme Court in Kandimalla Raghavaiah & Co. Versus National Insurance Co. Ltd. and another 2009, CTJ 951 (Supreme Court) (CP) wherein it was held by the Honble Supreme Court as under;
By no stretch of imagination, it can be said that Insurance Companys reply dated 21st March, 1996 to the legal notice dated 4th January, 1996, declining to issue the forms for preferring a claim after a lapse of more than four years of the date of fire, resulted in extending the period of limitation for the purpose of Section 24A of the Act. We have no hesitation in holding that the complaint filed on 24th October, 1997 and that too without an application for condonation of delay was manifestly barred by limitation and the Commission was justified in dismissing it on that short ground .
27. It is well settled that the powers of this Commission as a Revisional Court are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order.
28. Honble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd . 2011 (3) Scale 654 has observed ;
Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.
29. Since, there is no jurisdictional error nor there is any illegality in the impugned order, present revision petition is not maintainable and same is hereby dismissed.
30. No order as to costs.
J. (V.B. GUPTA) PRESIDING MEMBER ...
(SURESH CHANDRA) MEMBER SSB