National Consumer Disputes Redressal
Smt. Harbhajan Sharma vs Haryana Urban Development Authority on 20 January, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.2293 OF 2011 (Against the order dated 31.1.2011 in First Appeal No.1658/2006 of the Haryana State Consumer Disputes Redressal Commission, Panchkula) Smt. Harbhajan Sharma W/o Sh. Sanjeev Sharma R/o Kanch Ghar, Ambala City, Tehsil & District Ambala, Haryana ..... Petitioner Versus 1. Haryana Urban Development Authority Through its Administrator, Sector-6, Panchkula 2. Haryana Urban Development Authority Through its Estate Officer, Sector 14, Gurgaon, Haryana ...... Respondents BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HONBLE MR. SURESH CHANDRA, MEMBER For the Petitioner : Mr. Madhurendra Kumar, Advocate For the Respondents : Ms. Anubha Agarwal, Advocate PRONOUNCED ON 20th JANUARY, 2015 ORDER
PER MR. SURESH CHANDRA, MEMBER The factual matrix of this case, briefly stated, are that the petitioner/complainant applied for a plot of 10 Marla in Sector 45, Gurgaon with the respondent authority and alongwith her application dated 21.8.2000 deposited a sum of Rs.1,31,560/- vide bank draft dated 21.8.2000 by way of earnest money for the plot. It was the case of the complainant/petitioner that she was never intimated of the outcome of the draw, despite several letters written to the respondents/opposite parties. Later on, through some reliable sources, she learnt that she was allotted plot No.423, Sector 45, Gurgaon by the opposite parties and immediately thereafter she approached the opposite parties and prayed for issuance of the allotment letter but all in vain. Hence, she filed a consumer complaint before the District Forum. On notice, the opposite parties/respondents contested the claim of the petitioner and averred that the complainant/petitioner being successful applicant in the draw of lots, was allotted plot No.423, Sector 45, Gurgaon vide letter of allotment bearing memo No.512 dated 2.3.2001. But as per the terms and conditions of the allotment letter, she had not deposited the 15% of the total tentative price of the plot within the period of 30 days, the allotment of the said plot to her was cancelled vide cancellation letter issued to her through memo bearing No.2026 dated 9.10.2002. Both the parties adduced evidence in support of their case before the District Forum. On appraisal of the issues raised and the evidence before it, the District Forum vide its order dated 2.3.2006 allowed the complaint by issuing the following directions: -
a) To issue fresh allotment letter in respect of plot No.423/45, Gurgaon and in any eventuality if the said plot is not available then alternative plot in the same sector or in the adjoining developed sectors may be allotted on the original terms and conditions but the OPs can charge the interest according to the terms and conditions and the complainant is directed to deposit the requisite amount within one month from the receipt of the allotment letter.
b) Also pay Rs.2000/- as costs of proceedings to the complainant.
2. Aggrieved of the aforesaid order, the opposite parties challenged the same before the State Consumer Disputes Redressal Commission, Haryana, Panchkula by filing appeal No.1658/2006. The State Commission vide its impugned order dated 31.1.2011 reversed the order of the District Forum, accepted the appeal and dismissed the complaint. Under the circumstances, aggrieved of the impugned order, the petitioner has now challenged the same before us through this revision petition.
3. We have heard Shri Madhurendra Kumar, Advocate for the petitioner and Ms. Anubha Agarwal, Advocate for the respondents and perused the record. We may note that the main ground on which the State Commission has dismissed the complaint of the petitioner and reversed the order of the District Forum while accepting the appeal of the respondents is that the complaint filed by the petitioner was clearly time barred. The reasons recorded by the State Commission in support of its impugned order may be reproduced thus: -
We have gone through the impugned order and have taken into consideration the facts and circumstances of the case and are of the view that in the instant case at the time of filing the written statement, the opposite parties took up the preliminary objection that that the present complaint filed by the complainant is clearly time barred. Admittedly the cause of action has arisen to the complainant on 2.3.2001, when plot in question was allotted to her. Though the plea taken by the complainant is that she was intimated about the allotment of the plot, but this plea of the complainant does not increase the period of limitation, because in case, she was not informed, it was her duty to approach the concerned Estate Officer, HUDA and to know the status of his application, but no steps were taken by the complainant in this regard, but has filed the complaint before the District Forum on 7.9.2005, which on the face of it appears to be time barred. As per Section 24A (1) of the Consumer Protection Act, 1986, no complaint can be entertained by the District Forum after the expiry of the period of two years from the date of cause of action, unless there is sufficient reason for delay in filing the complaint is made out. Honble Supreme Court in the case titled State Bank of India vs. M/s B.S. Agricultural Industries (I) reported in 2009 (2) CPC 1, has held that 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. Admittedly, the present complaint was filed by the complainant before the District Forum after a gap of more than two years, which on the face of it appears to be hopelessly time barred. Further, more no sufficient reasons have been given by the complainant to condone the delay in filing the complaint.
The above factual position of the case has not been taken into consideration by the District Forum, at the time of passing of the impugned order, which is not sustainable in the eyes of law.
4. Learned counsel for the petitioner has contended that the State Commission gravely erred in holding that the complaint is time barred because the State Commission ought to have considered that it was a case of continuous cause of action and when the respondents failed to respond to the communications of the petitioner in regard to the allotment of the plot to her, it would be wrong to calculate the period of limitation from the date of allotment of the plot in question i.e. 2.3.2001. He further submitted that the date of allotment could also not be treated as the date for counting the limitation because she was not communicated about the allotment and her representations to the respondent authority did not receive proper response. In the circumstances, learned counsel submitted that the State Commission ought to have considered the case on merits rather than dismissing the complaint on the ground of limitation. On the other hand, learned counsel for the respondents submitted that in spite of specific plea regarding the complaint being barred by limitation being taken, the District Forum failed to deal with the question of limitation and proceeded to consider the complaint against the mandatory requirement of law. She further submitted that the District Forum was wrong in treating the complaint as not time barred on the ground that the cause of action was continuous. She pointed out that the complainant herself has failed to mention about the starting date of the cause of action and has given irrelevant and unacceptable explanation about the delay in the complaint which would not make the cause of action as continuous one in the face of the specific date of allotment and the failure of the complaint to deposit the allotment amount as per the letter of allotment. She, therefore, submitted that the State Commission rightly reversed the order of the District Forum and dismissed the complaint as being barred by limitation in accordance with the provisions of the law and as such no fault could be found with the impugned order.
5. We have given our anxious though to the rival contentions. We may note that for the purpose of considering the aspect of limitation, three dates are important. Firstly, the date of application for the plot which is 21.8.2000, secondly the date of allotment which is 2.3.2001 and lastly the date of filing of the complaint in question and the same as per the District Forum order is 7.9.2005 (mentioned as date of institution). Needless to mention that the period of limitation has to be counted from the date of the cause of action and as per the provisions of the Consumer Protection Act, a consumer complaint has to be filed within two years of the arising of the cause of action. Perusal of the complaint of the petitioner clearly indicates that the petitioner is quite aware that she has delayed considerably in filing her consumer complaint. In this context, it is interesting to note that while she has devoted six paras of her complaint mentioning about the difficulties faced by the family which kept the complainant and other members of her family busy thereby delaying the lodging of the complaint but she has not indicated anywhere as to how and when she came to know about the allotment of the plot in question in her name. She has also alleged that she never received the allotment letter dated 2.3.2001. It is also rather strange that although she has claimed to have sent letters to the respondents on 29.10.2001, 6.3.2002, 28.10.2002, 4.6.2003, 8.9.2003, 5.12.2003, 21.1.2004 and 14.12.2004, she chose to send all these letters under simple UPC and kept on waiting patiently for a reply which, according to her allegations, was denied by the respondents to her and eventually on 14.12.2004 i.e. after more than four years of her application for the plot, thought it appropriate to send her letter requesting for issuance of the allotment letter vide registered post on 14.12.2004. While the District Forum accepted her explanation and entertained the complaint on the ground that it involved continuous cause of action, the State Commission has reversed its finding by holding that the cause of action would start from the date of allotment and simply because she kept on sending representation, it would not extend the period of limitation and as such the complaint filed by her on 7.9.2005 was clearly time barred under Section 24A (1) of the Consumer Protection Act and hence it could not have been entertained by the District Forum.
6. We agree with the view taken by the State Commission. We have no manner of doubt in our mind that the petitioner had come to know about the allotment of plot to her much earlier than the date of her registered letter sent on 14.12.2004. However, in order to cover her complaint within the period of limitation, she has carefully avoided to mention anything as to how and on which date she came to know about the allotment of the plot in question to her. Since the respondent authority had allotted the plots to various applicants after the draw of lots for the plots, the cause of action will arise on the date of allotment and in case a person claims, as in the case of the present petitioner, that he or she never received the allotment letter but came to know about the allotment from some other source, he or she must declare as to when and how she came to know so that the period of limitation could be counted from the date of that knowledge. Simply because she has failed to mention about it and has carefully avoided to do so, it would not make her cause of action continuous one. The District Forum gravely erred to this extent while dealing with the question of period of limitation. It is clear to us from mere perusal of the complaint that the petitioner has tried to cook up a story to justify the delay but at the same time she has carefully chosen not to mention anything about the date of her knowledge with a view to avoid counting of the period of limitation from that date. Mere writing of letters to the respondent authority and waiting for reply for unduly long time would not extend the period of limitation. It is well settled position of law that the requirement of limitation under Section 24A (1) is a mandatory requirement and the consumer Fora shall not admit a complaint unless it is filed within two years of date on which the cause of action has arisen. The District forum wrongly treated the cause of action in the present case as continuous one while entertaining the complaint which was prima-facie time barred. We, therefore, do not find any substance in the present revision petition and hence dismiss the same with the parties bearing their own costs.
.Sd/.
(V.B. GUPTA, J) (PRESIDING MEMBER) Sd/.
(SURESH CHANDRA) (MEMBER) Raj/