State Consumer Disputes Redressal Commission
Alavilli Sankara Tataji @ Jimbo vs 1. Smt. Bylla Agnesh Puspa Ratnam And ... on 12 April, 2012
BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD. F.A.No.496 OF 2010 AGAINST C.C.NO. 90 OF 2009 DISTRICT FORUM VIZIANAGARAM Between: Alavilli Sankara Tataji @ Jimbo S/o late Venkataraju, 48 years, Prop: Chaitanya Real Estates, Dr.No:16-4-20, Goudu Veedhi, Kothapeta, Behind the House of Kandula Doctor, Vizianagaram. Appellant/opposite party no.1 A N D 1. Smt. Bylla Agnesh Puspa Ratnam W/o Kristopher, Christian, 52 years, House wife, residing at H.No:28/146, APSP Quarters, Chintalavalasa Village, Vizianagaram District. Respondent/complainant 2. Nakka Ramulu S/o late Suri, Aged 52 years, 16th ward, Ganesh Nagar, V.T. Agraharam, Vizianagaram. Respondent/opposite party no. 2 Counsel for the Appellants Sri Aravala Rama Rao Counsel for the Respondent Sri Jayant SC Sekhar (R1) Refused to receive notice (R2) F.A.No.498 OF 2010 AGAINST C.C.NO. 104 OF 2009 Between: 1. M/s Chaitanya Real Estates & Constructions, Dr.No.8-10-109, Railway Station Road, Vizianagaram, rep. by its Prop. Alavilli Sankara Tatji S/o late Venkata Raju Dr.No.16-4-20, Goudu Street, Kothapeta Behind the house of Kandula Doctor Viziangaram 2. Alavilli Sankara Tataji @ Jimbo S/o late Venkataraju, 48 years, Prop: Chaitanya Real Estates, Dr.No:16-4-20, Goudu Veedhi, Kothapeta, Behind the House of Kandula Doctor, Vizianagaram. Appellants/opposite parties A N D Sri Sambangi Appalanaidu S/o Surapu Naidu Aged about 42 years, R/o H.No.27, MIG-II Phase-I, VUDA Colony, Cantonment Vizianagaram Respondent/complainant Counsel for the Appellants Sri Aravala Rama Rao Counsel for the Respondent Sri Jayant SC Sekhar QUORUM: SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER
AND SRI THOTA ASHOK KUMAR, HONBLE MEMBER THURSDAY THE TWELFTH DAY OF APRIL TWO THOUSAND TWELVE Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. Both the appeals arise out of identical facts and circumstances and as such they are being disposed of by a common order. F.A.No.498 of 2010 is taken as lead case.
2. The respondent filed complaint seeking relief for refund of membership fee and for a sum of `4,00,000/- towards compensation besides the relief for allotment of the plot and execution of the sale deed.
2. The respondent joined as member in the scheme,Vidyanagar House Sites Scheme floated by the appellants in the year, 1996 and the respondent and the appellants entered into an agreement as also the appellants allotted plot bearing number 188 in favour of the respondent. The respondent paid an amount of `150/- towards membership fee on 24.08.1996 and `500/-
each on 9.10.1996, 14.11.1996, 8.12.1996 and 2.02.1997. The respondent claimed that he became winner in the draw of lots held in the month of March,1997 and it was agreed that after being declared winner in the draw of lots, the respondent need not pay any further installments. The respondent got issued notice dated 23.07.2009 through his advocate with a demand for allotment of the plot and execution of the sale deed for which the appellants sent reply on 8.08.2009. The respondent thereafter filed the complaint.
3. The appellants resisted the claim on the premise that they entered into agreement on 20.08.1996 whereunder it was agreed that the respondent could be admitted to the membership in the scheme floated by the appellants and they had implemented the terms and conditions of the agreement. It is contended that the complaint is not filed within the period of limitation.
4. The respondent filed his affidavit and 6 documents. On behalf of the appellants, the appellant no.2 filed his affidavit but no documents.
5. The District Forum allowed the complaint on the premise that cause of action is continuous and the appellants rendered deficient service by not executing the sale deed in favour of the respondent. The District Forum awarded an amount of `2,25,000/- with interest towards compensation and 3000/- towards costs.
6. The opposite parties have filed the appeal contending that as per the terms of the scheme every member has to pay `500/- per month for 60 months and special installments @`1500/- per month in the 10th, 20th,30th,40th,50th and 60th months and `4,500/-
at the time of registration of the sale deed. It is contended that any member who does not pay the installments continuously for 3 months will be treated as defaulter and his membership would be cancelled. The respondent paid 6 installments and he became defaulter and that the respondent was not a winner in the draw of lots held by the appellants. The complaint is not filed within the period of limitation.
7. The points for consideration are:
i) Whether the complaint is filed within the period of limitation?
ii) Whether there was any deficiency in service on the part of the appellants?
iii) To what relief?
8. POINT NO.1: There is not much dispute about the parties entering into the agreement dated 20.08.1996 whereunder the respondent agreed to join as member in the scheme,Vidyanagar House Sites Scheme floated by the appellants and both the parties agreed to be bound by the terms and conditions of the scheme mentioned in the application form issued by the first appellant firm. The duration of the scheme is 60 months. The respondent paid installments @ Rs.500/-
for the months of ugust,1996,September,1996, October,1996, November,1996, February,1997 and March,1997. The receipts establish payment of the installments by the respondent. By the letter issued by the appellants to K.Vennku Naidu and reply of the appellants to the notice of the respondent , it is evident that the appellant was declared winner in the draw of lots held for the month of March,1997.By the time the appellants had not allotted plot to the respondent nor was there any effort on the part of the respondent to seek for allotment of the plot thereof. The District Forum referred to the following decisions which do not lay any law in regard to limitation for filing the complaint before the District Forum.
1. Bangalore Development Authority Vs Syndicate Bank reported in 2007 (6) SCC 711
2. Lucknow Development Authority Vs M.K.Gupta reported in AIR 1994 SC 787
3. Merchant (Dr) Vs Shrinath Chaturvedi reportred in 2002(6) SCC 635
4. Laxmi Engineering Works Vs PSG Industrial Institute reported in 1995(3) SCC 583
5. Faquir Chand Gulati Vs Uppal Agencies (P) Ltd., reported in 2008(10) SCC 245
6. State of Karnataka Vs Vishwabharathi House Building Cooperfative Society and others reported in 2003(2) SCC 412
9. The question as to whether a complaint is filed within the period of limitation has to be decided as preliminary issue as held by the Honble Supreme Court in State Bank of India Vs. B.S. Agriculture Industries (I) reported in (2009) 5 SCC 121 . The Supreme Court held as :
Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the consumer fora thus:
"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.
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 and whether the complaint has been filed within limitation period prescribed there under. 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.
10. Section 24 of the Consumer Protection Act provides for a period of two years within which complaint has to be filed and in the event the complaint is not filed within the prescribed period, Consumer Forum cannot entertain the complaint. If the complaint is filed beyond the period of limitation, the complaint is required to file an application seeking condonation of delay in filing the complaint and if the Consumer Forum satisfied with the cause for the delay in filing the complaint, it would condone the delay and admit the complaint.
11. In M/s Kerala Agro Machinery Corporation Ltd vs Bjoy Kumar Roy and others. CDJ 2002 SC 189, the complainant purchased a power tiller on 21.04.1988 from the appellant and the power tiller started giving troubles within warranty period in respect whereof he made a complaint for repairs and replacement of certain parts and ultimately he filed complaint before the District Forum on 16.06.1994. The Supreme Court held On behalf of the respondent no.1 there is no denial of the fact that one part was replaced by manufacturer. The claim relating to defects was lodged with the appellant in February, 1989 in respect whereof claim petition was filed in June, 1984, i.e. to say more than 4 years after lodgment of the claim with appellant. The Supreme Court has set aside the orders passed by the District Forum, State Commission and National Commission and rejected the claim of the complainant.
12. In .Dr. V.N.Shirkunde vs Anitha Sena Fewrnades, reported in (2011) 1 SC 53, the complainant ever since undergone open Cholecystectomy complained of pain in abdomen of and on for which she used to take pain killers and she had to remain on leave including sick leave at regular intervals . In September,2002 she was admitted in hospital and the C.T.Scan done revealed existence of a mass in her abdomen which was finally remcied at Leelavathi Hospital, Bombay. The complainant claimed an amount of Rs.1,28,522/- towards the expenses incurred for the second operation and that she and her family had suffered mental and physical stress. The Supreme Court held The respondent has not explained as to why she kept quiet for about 9 years despite pain and agony. The long silence on her part militates against bonafide of the respondents claim for compensation and the Discovery Rule cannot be invoked for recording a finding that the cause of action accrued to her in November,2002. The National Commission, in our view considered view was clearly wrong when it held that cause of action lastly arose to the respondent on 25.10.2002 when the second surgery was performed at Leelavathi Hospital and the complaint filed by her on 19.10.2004 was within limitation.
13. The Apex Court allowed the appeal filed by the doctor and set aside the order of the National Commission which reversed the order of dismissal of complaint on the ground of limitation by the State Commission. The Supreme Court dismissed the complaint.
14. In Pavan Ahuja vs Haryana Urban Development Authority and another in RPNo.3791 of 2011 decided by the National Commission on 23.02.2012.,the complainant was an allottee of plot but regular allotment letter was not issued to him. He paid 10% of the cost of the plot. The National Commission dismissed the complaint holding that the complaint was filed 12 years after the cancellation of allotment and re-allotment in favour of third party. The National Commission referred to the decision in Dr.V.N.Sirkundes case.
15. The cause of action is dealt with in detail by the Supreme Court in Kandimalla Raghavaiah and Co. vs National Insurance Company Ltd and another 2009 CTJ 951(SC) . In Para 13ofhte judgment it has been held as under:
The term cause of action is neither defined in the Act nor in the Code of the 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 accrual of right to sue. Generally it is described bundle of facts, which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated ,Cause of action is cause of action which gives occasion for and forms of foundation of the suit.
16. We have perused the complaint and could not find any prayer to condone the delay. Even if no other application to condone the delay caused in filing the complaint, at least a prayer ought to have been made in the complaint. The District Forum though has not discussed the limitation aspect, as contended by the appellant it has allowed the complaint on the ground that the complaint was filed within the period of limitation. For the foregoing reasons, we are not inclined to hold that the complaint was filed within two years from the date of accrual of right to sue to the respondent.
17. In the result, the appeals F.A.No.496 and 498 of 2010 are allowed by setting aside the orders of the District Forum. Consequently, the complaints are dismissed. There shall be no order as to costs.
MEMBER MEMBER Dt.12.04.2012 KMK*