State Consumer Disputes Redressal Commission
Annu Enterprises India vs Huda on 7 September, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.2115, 2569 of 2004 and appeal No.247/2007 Date of Institution: 18.08.2004, 24.09.2004 and 30.01.2007 Date of Decision: 07.09.2010 Appeal No.2115 of 2004 Annu Enterprises India, Plot No.102, Pace City, Sector 37, Gurgaon through its Prop. Sh. Anil Singhwal, r/o 32, Ashoka Park, Main Rohtak Road, Delhi. Appellant (Complainant) Versus 1. Haryana Urban Development Authority, Gurgaon through its Estate Officer, Sector 14, Gurgaon. 2. Haryana Urban Development Authority, Gurgaon through its XEN, Electric Division, Gurgaon. 3. DHVPNL Gurgaon through its XEN, Construction Division, Gurgaon Division No.1. 4. Haryana Financial Corporation, Branch Office: 1807, Sector 17, Gurgaon through its Branch Manager. 5. HUDA through its Chief Administrator, Panchkula. Respondents (Ops) Appeal No.2569 of 2004 1. Haryana Urban Development Authority, Sector 6, Panchkula through its Chief Administrator. 2. Estate Officer, Haryana Urban Development Authority, Sector 14, Urban Estate, Gurgaon. 3. XEN, Electric Division, HUDA, Gurgaon. Appellants (Ops) Versus 1. Annu Enterprises India, Plot No.102, Pace City, Sector 37, Gurgaon through its Prop. Sh. Anil Singhwal, r/o 32, Ashoka Park, Main Rohtak Road, Delhi. Respondent (Complainant) 2. DHVPNL Gurgaon through its XEN, Construction Division, Gurgaon Division No.1. 3. Haryana Financial Corporation, Branch Office: 1807, Sector 17, Gurgaon through its Branch Manager. Respondents (OP No.3 and 4) Appeal No.247/2007 1. Haryana Urban Development Authority, Sector 6, Panchkula through its Chief Administrator. 2. Estate Officer, Haryana Urban Development Authority, Sector 14, Urban Estate, Gurgaon. 3. Haryana Urban Development Authority, Gurgaon through its Xen, Electric Division, Gurgaon. Appellants (Ops) Versus 1. Annu Enterprises India, Plot No.102, Pace City, Sector 37, Gurgaon through its Prop. Sh. Anil Singhwal, r/o 32, Ashoka Park, Main Rohtak Road, Delhi. Respondent (Complainant) 2. DHVPNL Gurgaon through its XEN, Construction Division, Gurgaon Division No.1. 3. Haryana Financial Corporation, Branch Office: 1807, Sector 17, Gurgaon through its Branch Manager. Respondents (OP No.3 and 4) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. Diwan Singh Chauhan, Member. For the Parties: Mr. Kapil Khannal, Advocate for Annu Enterprises India (Complainant) Mr. Raman Gaur, Advocate for Opposite Parties-HUDA. O R D E R
Justice R.S. Madan, President:
Vide this common order we are deciding above mentioned three appeals as they relate to same controversy and are connected with each other. Of these three appeals, appeal No.2115/2004 and appeal No.2569/2004 have arisen out of the order dated 4.5.2004 passed by the District Consumer Forum, Gurgaon in complaint No.2190/2001, whereas the appeal No.247/2007 has arisen out of the order dated 30.09.2005 passed in execution petition No.184/2004 which is the outcome of the order dated 4.5.2004 in the main complaint.
Appeal No.2569/2004 and appeal No.247/2007 were fixed for 01.12.2011 and 04.08.2011 respectively and these appeals have been preponed for today on the request of the learned counsel for the parties to avoid any conflicting order.
The brief facts of the present case are that complainant Annu Enterprises India was allotted plot No.102 Pace City Sector 37, Gurgaon vide allotment letter bearing Memo No.2664 dated 28.6.1996. The possession of the plot was delivered to the complainant on the same day. After depositing the entire price of the plot by the complainant, the conveyance deed in respect of the plot in question was executed in favour of the complainant. The complainant got sanctioned the site plan for raising construction and also obtained loan of Rs.11,67,000/- from the opposite party No.4 Haryana Financial Corporation and also completed construction of basement on the plot. However, thereafter filed the present complaint alleging deficiency of service on the part of the opposite parties on the ground that a high tension electric line of 33 KV was passing over the plot in question and the same was not removed despite repeated requests to the opposite parties.
On the other hand it is the case of the opposite parties that at the time of delivery of possession of the plot, it was disclosed to the complainant that the high tension wire was passing over the plot and the same was assured to be shifted within a short period and thereafter for removal of the said high tension electric line, the HUDA authorities had sent a letter bearing Memo No.SPl 1 dated 13.9.1999 to Dakshin Haryana Bijli Vitran Nigam Ltd. Gurgaon vide and thereafter a reminder was sent vide Memo No.31 dated 18.01.2001. The estimated expenses of Rs.5,75,900/- for removal of the electric line were deposited with the Nigam. After deposited the aforesaid amount, the HUDA authorities again sent a reminder bearing Memo No.341-42 dated 8.5.2001 for removal of the electric line at earliest. Thus, denying it a case of any kind of deficiency of service, the opposite parties prayed for dismissal of the complaint.
On appraisal of the pleadings of the parties and evidence brought on record, the District Consumer Forum accepted the complaint vide order dated 4.5.2001 by issuing following direction to the opposite parties:-
the respondent is directed to remove the electric wire passing over the plot in question, if it has not been removed so far. The respondent is further directed to pay interest @ 18% p.a. over the entire deposits from the respective date of deposits till the date of payment. The compliance of this order be solicited within one month after the receipt of the copy of this order. No costs.
Aggrieved against the impugned order dated 4.5.2001, the HUDA authorities filed appeal No.2569/2004 for setting aside the impugned order and complainant filed appeal No.2115/2004 for grant of compensation on account of loss of income, loss of interest paid to the opposite party No.4 from whom the complainant had obtained loan for raising construction over its plot and to pay the damages on account of mental agony and harassment.
It is material to mention here that there was no stay against the impugned order dated 4.5.2004 and the complainant had filed an execution petition No.184/2004 before the District Consumer Forum, Gurgaon for executing the main order, wherein vide order dated 30.09.2005 following directions were issued by the District Forum, Gurgaon to the opposite parties:-
3. We have gone through the file and have heard the parties. The respondent is directed to immediately comply with the order dated 4.5.04 within 15 days otherwise the respondent shall be liable to pay Rs.100/- per day as a penalty to the complainant from the date of this order till the date of compliance.
Hence appeal No.247/2007 is before us against the order dated 30.09.2005 in execution petition.
There is delay of 38 days in filing of appeal No.2569/2004, delay of 13 days in filing of appeal No.2115/2004 and delay of 415 days in filing of appeal No.247/2007. In all the three appeals, the appellants have moved applications for condonation of delay.
Since all the above mentioned appeals relate to the same controversy and the fate of each appeal is related to one another. At the same time, the decision of appeals No.2115/2004 and 2569/2004 shall effect the fate of appeal No.247/2007 which is the subsequent proceedings of the original complaint, therefore, we think it appropriate to condone the delay of 38 days, 13 days and 415 days respectively in the above mentioned three appeals.
Even otherwise, in case of any legal infirmity is committed by the District Consumer Forum while passing the impugned order, which is apparent on record, the same cannot be allowed to continued as it would amount to no order in the eyes of law. In the instant case the District Consumer Forum while passing the impugned order dated 4.5.2004 in complaint No.2190/2001, has not dealt with the objection raised on behalf of the opposite parties with respect to the maintainability of the complaint as the same was beyond the period of limitation as required under Section 24-A of the Consumer Protection Act, 1986 (hereinafter referred to as the Act, 1986) and this objection of the opposite parties, in our view, was much relevant to decide the complaint because the possession of the plot was delivered to the complainant on 28.06.1996, plan was sanctioned, conveyance-deed was executed in favour of the complainant and the complainant started construction after raising loan from Haryana Financial Corporation-opposite party No.4, whereas the present complaint was filed 19.03.2001 but the District Consumer Forum has not considered this aspect and decided the complaint on merit. Thus, this question with respect to the limitation for filing the present complaint requires consideration in detail and as such the delay of 415 days in filing of appeal No.247/2007 and the delay of 38 days & 13 days in other two appeals is condoned.
We have heard learned counsel for the parties and perused the case file.
It is well settled principle of law that any relief can be claimed under the Consumer Protection Act, 1986 (as amended upto date) within two years from the date on which the cause of action accrues.
Section 24-A of the Act, 1986 deals with this situation which is reproduced 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.
The above provision of Section 24-A of the Act, 1986 is clearly peremptory in nature requiring the Consumer Fora to see at the time of entertaining the complaint whether it has been filed within the stipulated period of two years from the date of cause of action.
In the instant case undisputedly the possession of the plot in question was delivered to the complainant on 28.06.1996. The conveyance deed in respect of the plot in question was executed in favour of the complainant and site plan was sanctioned from the opposite parties-HUDA for raising construction. The complainant did not stop here and he raised loan of Rs.11,67,000/- from Haryana Financial Corporation-opposite party No.4 and completed part of construction on the plot. Though the case of the complainant is agreed by the opposite parties for not removing the high tension wire which according to the complainant were passing through his industrial plot but the same have been removed by the opposite parties during the pendency of the complaint. It is further the case of the complainant that he had been pursing his matter with the opposite parties and till the filing of the complaint, the high tension wires were not removed. We constrained to observe that mere entering into correspondence with the opposite parties, does not extend the period of limitation. If the complainant was aggrieved, he could have filed complaint within two years after obtaining the possession of the plot i.e. 28.06.1996 and as such the present complaint filed by the complainant was not entertainable.
Reference may be made to the observations made by the Honble Supreme Court in case of State Bank of India versus M/s B.S. Agricultural Industries (1) 2009(2) CPC 1, wherein it has been held as under:-
Limitation- Cause of action arose on 7.6.2004 when complainant did not receive demand draft or other documents from the bank Complaint was filed on 5.5.1997 clearly barred by limitation No application for condonation of delay filed nor cause of delay explained Writing of letter to bank or any reply of bank cannot extend the limitation Aspect of limitation not considered though specific plea was taken in this regard Orders of Fora below set aside Complaint dismissed as barred by time.
The Honble Apex Court in case of Kandimalla Raghavaiah & Co. versus National Insurance Co. Ltd. and another, 2009 CTJ 951 (Supreme Court) (CP) took view of the observations made in case State Bank of India v. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) =JT 2009(4) SC 191, as under:-
12. Recently, in State Bank of India v. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP)=JT 2009(4) SC 191, this Court, while dealing with the same provision, has held:
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.
In para No.13 it has been held by the Honble Supreme Court The term cause of action is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of wide import. It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described s bundle of facts., which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, cause of action means the cause of action for which the suit is brought. Cause of action is cause of action which gives occasion for and forms the foundation of the suit. In the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out.
The observations made by the Honble Apex Court in the authoritative pronouncements discussed above, are fully attracted to the facts and circumstances of the present case.
It is not the case of the complainant that he had moved an application for condonation of delay in filing of the complaint before the District Forum and thus the complainant could have sought any relief under the Act, 1986 by filing complaint within two years from 28.06.1996 when the possession of the plot was delivered to the complainant. The subsequent correspondence between the parties is not to be taken as a recurring cause of action to seek remedy of the Act, 1986.
On the point of recurring cause of action reference may be made to the observation made by the Honble Supreme Court in Raja Ram Maize Products etc. etc. vs. Industrial Court of M.P. and other AIR 2001 SUPREME COURT 1676, wherein it has been held that:-
10. The concept of recurring cause of action arising in a matter of this nature is difficult to comprehend. In Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, AIR 1959 S.C. 798 it was noticed that a cause of action which is complete cannot be recurring cause of action as in the present case. When the workers demanded that they should be allowed to resume work and they were not allowed to resume work, the cause of action was complete. In such a case the workers going on demanding each day to resume work would not arise at all. The question of demanding to allow to do work even on refusal does not stand to reason.
In view of the above it is clearly established that the complaint filed by the complainant before the District Forum was barred by limitation and in view of the law settled by the Honble Apex Court in State Bank of Indias case (Supra), the complaint was not entertainable. The District Consumer Forum has committed great error by not considering the objection raised on behalf of the opposite parties in the written statement with respect to the limitation and as such the impugned order dated 04.05.2004 is not sustainable in the eyes of law.
As a sequel to our aforesaid discussion appeal No.2569/2004 titled as HUDA versus Annu Enterprises is accepted, the impugned order dated 04.05.2004 passed in complaint No.2190.2004 is set aside and the complaint is dismissed. Consequently, appeal No.2115/2004 titled as Annu Enterprises vs. HUDA for enhancement compensation stands dismissed. Stimulatingly, appeal No.247/2007 against the order dated 30.09.2005 passed in Execution Application No.184/2004 titled as HUDA vs. Annu Enterprises having arisen out of the main order dated 04.05.2004 is accepted and the order dated 30.09.2005 is set aside.
The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
The original judgment be attached with appeal No.2115/2004 and certified copies be attached with appeal No.2569/2004 and appeal No.247/2007.
Announced: (Justice R.S. Madan) 07.09.2010 President (Diwan Singh Chauhan) Member