State Consumer Disputes Redressal Commission
Anand Venkatraman vs M/S Sunivas Realtors & Others on 1 November, 2017
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BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
FA No. 70/2017
Shri Anand Venkatraman,
38 years of age,
Son of Shri S. Venkatraman,
Panchasheel Complex,
Porvorim-Goa. ... Appellant
v/s
1. M/s. Sunivas Realtors,
Partnership firm,
'Kamadhenu'
Dr. Dada Vaidya Road,
Panaji-Goa.
2. Shri Subhash Trivikram NaikGaunekar,
Major of age,
r/o 'Vishwaroop'
H. No. 1639, Murida,
Fatorda, Margao-Goa.
3. Sou. Resha Nilkanth Poi Palondikar,
nee Mira @ Resha Subhash Naik Gaunekar,
Major of age, R/o H. No. 127,
Behind Colva Church,
Colva, Salcete-Goa.
4. Sou. Rukmini Satyendra Bhobe, nee
Harsha Subhash Naik Gaunekar,
Major of age,
r/o H. No. L-63, Housing Board Colony,
Porvorim, Bardez-Goa. ... Respondents
Adv. Ms. S. Phadte for the Appellant.
Coram: Shri. Justice U. V. Bakre, President
Shri. Jagdish Prabhudessai, Member
Dated: 01/11/2017
ORDER
[Per Justice Shri. U. V. Bakre, President] 2 This appeal is directed against the Judgment/Order dated 04/08/2017 passed by the Consumer Disputes Redressal Forum, North-Goa (the 'Forum', for short) in Consumer Complaint No. 01/2015. The Appellant was the Complainant and Respondents were the Opposite Parties (OPs, for short) in the said Complaint. Parties shall hereinafter be referred to as per their status in the said Complaint.
2. The said Complaint was filed on 02/01/2015 against the OPs alleging deficiency in service in respect of a Row House bearing no. G/Rh-05 situated in Gokul Block - III in the project known as "Panchasheel", located at Arrarim, Soccoro, Porvorim, purchased by the Complainant from the OPs vide agreement for construction cum sale dated 07/11/2009 ( hereinafter referred to as the 'said Row House'). The possession of the said Row House was delivered to the Complainant on 09/09/2010 and the sale deed was executed on 15/03/2013, in favour of the Complainant. It was the case of the Complainant that on 07/09/2010, when he visited the said Row House, he noticed that there was seepage of water into the said Row House through terrace and there were various defects as mentioned in paragraph 6 of the Complaint. According to the Complainant, he took possession without rectifications of defects on assurance of the OP No. 2, since the Complainant was in urgent need of accommodation. He further alleged that after taking possession of the said Row House, he noticed that the parking space was narrow and it was impossible to park the car. The Complainant stated that the OP No. 2 assured that the defects would be rectified. The Complainant addressed two letters dated 07/09/2010 and 10/03/2011 calling upon the OP No. 2 to rectify the defects. He then addressed complaint to the Consumer Conciliation Committee, Junta House (CCC, for short), Panaji, by letter dated 31/05/2011 but the said conciliation proceedings turned futile and the Complainant came to know about the failure only on 3 25/07/2014. According to the Complainant, during the course of conciliation proceedings, the OP No. 2 rectified some defects in the months of June and July, 2011 and submitted status report to the CCC vide letter dated 15/08/2011. The Complainant stated that seven out of eight defects were not rectified and only the painting was done without eradicating the dampness problem. The Complainant further alleged that additional five defects were noticed and were referred to the CCC but 4 out of said 5 defects were left unattended. The said complaints were registered with the CCC under nos. 51/2011, 92/2012 and 93/2012. The Complainant alleged that the cause of action arose to him to file the Complaint on 25/07/2014 when Consumer Conciliation Committee failure report was received by him and that the cause of action continued. The prayer (a) of the Complaint was to direct the OPs to provide to the Complainant an alternative parking space/garage within compounded area of Panchasheel Complex. Prayer (b) was to direct the OPs to rectify all the defects mentioned in paragraph 6 of the Complaint. Lastly, prayer
(c) was for compensation towards mental torture, etc.
3. The Complainant produced the agreement for construction and sale dated 07/11/2009, deed of sale dated 15/03/2013, letters/complaints dated 07/09/2010, 10/03/2011, 31/05/2011, 17/06/2011, ---/07/2011 and 24/10/2013, proceedings of the CCC and photographs.
4. The OPs filed their written version resisting the Complaint. They mainly contended that the Complaint was hopelessly barred by limitation in view of the provision of Section 24-A of the Consumer Protection Act, 1986 (the 'Act', for short). They stated that they had no responsibility or obligation as per the agreement of construction and sale and there was no defect liability clause therein. The OPs stated that they had executed several works from time to time in the said premises as shown in the job cards at their own costs, without being liable to do so under the agreement. The OPs produced the letter 4 dated 09/09/2010 addressed by the Complainant to the OPs and the job card.
5. The Complainant filed affidavit-in-rejoinder dated 30/03/2015 and explained as to in what circumstances he had signed the said letter dated 09/09/2010.
6. The Complainant as well as the OPs filed their respective affidavit-in-evidence. Same thing as pleaded in the Complaint and the written version was stated in the said affidavits. Both the parties filed written arguments before the Forum.
7. Vide the impugned Judgment/Order, the Forum held that there was deficiency in service on the part of the OPs in construction of the said Row House. However, the Forum further held that the cause of action had arisen to the Complainant in respect of prayer (a) for the first time on 22/06/2012 and in respect of prayer (b), it arose first on 08/09/2011. The Forum, thus, held that the Complaint filed on 02/01/2015 is hit by Section 24-A of the Act. Relying upon the Judgment of the Hon'ble Supreme Court in "State Bank of India Vs. B. S. Agricultural Industries", [(2009) 5 SCC 121], the Forum dismissed the Complaint as barred under Section 24-A of the Act, with no order as to costs. The Complainant is aggrieved by the above Judgment and Order.
8. Records and proceedings of C.C. N. 01/2015 were called for and Ms. S. Phadte, Lr. Counsel for the Complainant was heard on the point of admission of the appeal.
9. Lr. Counsel for the Complainant contended that the proceedings before the CCC were pending and the failure report was received by the Complainant only on 25/07/2014 and hence the said time consumed before the CCC would accrue to the benefit of the Complainant and the Complaint filed on 02/01/2015 cannot be held to be barred by limitation. In the alternative, Lr. Counsel for the complainant submitted that the Forum ought to have exercised 5 jurisdiction under Section 24A(2) of the Act and condoned the delay, if any, since the Complaint, as per the impugned Judgment, disclosed deficiency in service. According to the Counsel for the Complainant, the Act is a beneficial legislation and hence when it was proved that the complainant was a consumer, the Forum ought not to have construed the provision of Section 24A of the Act to be a complete bar so as not to entertain the Complaint. Lr. Counsel therefore urged that the appeal deserves to be admitted and disposed of on merits.
10. We have gone through the entire material on record.
11. Section 24A of the Act provides as under:
"24A. Limitation period.- (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. (2) Notwithstanding anything contained in sub- section (1), a complaint may be entertained after the period specified in sub-section (1), if the Complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period: Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay."
12. The above provision of Section 24A of the Act, thus, mandates that the Forum shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen or unless the Complainant satisfies that he had sufficient cause for delay. Therefore, there is no force in the submission of Lr. Counsel for the Complainant that the provision of Section 24A of the Act was neither rigid nor could the same be considered as absolute bar like the provisions of the Limitation Act. In the case of "State Bank of India vs. M/s. B. S. Agricultural Industries (I)" reported in (AIR 2009 6 Supreme Court 2210), the Hon'ble Supreme Court has observed as under:-
" 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.
9. In Union of India and Another v. British India Corporation Ltd. and Others, (2003) 9 SCC 505 while dealing with an aspect of limitation for an application for refund prescribed in Business Profits Tax Act, 1947, this Court held that the question of limitation was a mandate to the forum and, irrespective of the fact whether it was raised or not, the forum must consider and apply it.
10. In Haryana Urban Development Authority v. B. K. Sood (2006) 1 SCC 164, this Court while dealing with the same provision viz., Section 24A of the Act, 1986 held:
'10. Section 24-A of the Consumer Protection Act, 1986 (referred to as the Act hereafter) expressly casts a duty on the 7 Commission admitting a complaint, to dismiss a complaint unless the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that the complainant had sufficient cause for not filing the complaint within the period of two years from the date on which the cause of action had arisen."
11. The section debars any fora set up under the Act, admitting a complaint unless the complaint is filed within two years from the date of which the cause of action has arisen. Neither the National Commission nor the State Commission had considered the preliminary objections raised by the appellant that the claim of the respondent was barred by time. According to the complaint filed by the respondent, the cause of action arose when, according to the respondent, possession was received of the booth site and it was allegedly found that an area less than the area advertised had been given. This happened in January 1987. Furthermore, the bhatties which were alleged to have caused loss and damage to the respondent as stated in the complaint, had installed before 1989 and removed in 1994. The complaint before the State Commission was filed by the respondent in 1997, ten years after the taking of possession, eight years after the cause of alleged damage commenced and three years after that cause ceased. There was not even any prayer by the respondent in his complaint for condoning the delay.' "
13. From the above, it is clear that merely because the Act is a beneficial legislation and because the Forum has held that the Complainant is a Consumer and that there is deficiency in service, that cannot mean that the provision of Section 24A can be construed liberally. Once it is found that the Complaint is barred by limitation of two years prescribed by Section 24A of the Act, the Forum is bound to dismiss the complaint unless the Complainant satisfies that he had sufficient cause for not filing the Complaint within the period of two 8 years from the date on which the cause of action has arisen. In the present case, admittedly, neither any separate application for condonation of delay was filed along with the Complaint nor any prayer was made in the Complaint itself to condone the delay by getting sufficient cause for delay in some paragraphs of the Complaint.
14. As per the Complaint, the Complainant, on 07/09/2010, visited the site and checked the Row House and noticed that there was seepage of water through the terrace door into the house and that there were various defects as mentioned in paragraph 6 of the Complaint. Thus, the cause of action for the above defects, for the first time, arose on 07/09/2010. The possession of the Row house was handed over to the Complainant on 09/09/2010 and the Complainant gave a letter dated 09/09/2010 to the OPs stating that he checked the Row House and found the same to be complete in all respects as per the agreement and has taken possession on that day. But in the Complaint, the Complainant alleged that on this day he found that the parking place was narrow and it was impossible to park the car. The Complainant wrote letter dated 07/09/2010 to the OPs to rectify the defects but the OPs did not respond. The Complainant, thus, wrote the second letter dated 10/03/2011 to the OPs but the OPs did not react. Therefore the cause of action, regarding the various alleged defects and the parking place, had first arisen to the Complainant on 07/09/2010 or at least on 10/03/2011. The sale deed was executed on 15/03/2013.
15. Besides the above, as pointed out by the Forum, the Job Card reveals that, for the last time, the OPs carried out some pending work on 08/09/2011, when the conciliation proceedings in complaint no. 51/2011 were pending and thereafter the OPs were not responding to any grievances of the Complainant. The last hearing before the CCC took place on 01/03/2012 in complaint no. 51/2011 and on 06/12/2012 in complaints no. 92 and 93 of 2012. The complaint before 9 the Forum was filed on 02/01/2015. Be that as it may, merely because conciliation proceedings were pending before the CCC and failure reports dated 15/04/2014 were received by the Complainant on 21/07/2014, that cannot extend the period of limitation prescribed under the Act. The Act does not provide for filing of complaint before CCC prior to approaching the Forum. At the most the Complainant could have filed an application for condonation of delay on the ground of pendency of the complaints before the CCC. Even otherwise, the failure reports of the CCC did not suffer from inability or incapacity to entertain the complaints on the ground of lack of jurisdiction or any other ground analogues to the defects of jurisdiction and in such circumstances Section 14 of the Limitation Act cannot be applied.
16. In view of the above, the Forum has rightly dismissed the Complaint being barred under Section 24A of the Act. The Appeal therefore deserves to be dismissed at the stage of admission.
17. Hence, the Appeal is dismissed at the stage of admission. No order as to costs.
[Shri. Jagdish Prabhudessai] [Justice Shri. U. V. Bakre]
Member President
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