State Consumer Disputes Redressal Commission
Smt. Barkha Suhane vs Sharad Sharma on 11 September, 2014
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Appeal No.FA/12/749
Instituted on : 19.12.2012
Smt. Barkha Suhane, Age 39 years,
W/o : Shri Rajkumar Bafna,
R/o : Ramadhin Marg,
Rajnandgaon (C.G.) ..... Appellant
Vs.
Sharad Sharma, S/o S.S. Sharma,
Partner : Shaubhagya Estate,
Housing Board Colony, Kamla College Road,
Kaurinbhatha, Rajnandgaon (C.G.)
Present address : Awadhpuri, House No.101,
Risali, Bhilai, District Durg (C.G.) ... Respondent
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri R.K. Bhawnani, for the appellant.
None for the respondent (Ex-parte).
ORDER
Dated : 11/09/2014 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against the order dated 14.12.2012, passed by the District Consumer Disputes Redressal Forum, Rajnandgaon (C.G.) (henceforth "District Forum"), in Complaint Case No.79/2012. By the impugned order, the learned District Forum, has dismissed the complaint of the appellant (complainant).
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2. Briefly stated, the facts of the complaint filed before the District Forum are that : the respondent (O.P.) informed the appellant (complainant) that the Housing Board, Rajnandgaon , is constructing a colony namely Saubhagya Estate, for which after cutting of plot, the plot for residential purpose is to be allotted. Being agreed with the assurance of the respondent (O.P.) the appellant (complainant) agreed for allotment for 1500 sq ft. plot @ Rs.38/- per sq. ft. at the total price of Rs.52,500/-. A written agreement in this regard was executed between the parties in the year 1999. For allotment of the said plot, a sum of Rs.5,000/- was deposited by the appellant (complainant) in the month of May, 1999 thereafter the appellant (complainant) paid a sum of Rs.6,000/- on 10.04.2000 towards first installment, Rs.1,000/- on 10.06.2000, Rs.10,000/- on 29.06.2000, Rs.1,000/- on 09.08.2000, Rs.1,000/- on 11.08.2000, Rs.2,000/- on 09.10.2000, Rs.2,000/- on 09.12.2000, Rs.1,000/- on 10.01.2001, Rs.3,000/- on 20.02.2001, Rs.1,000/- on 22.03.2001, Rs.1,000/- on 10.04.2001, Rs.1,000/- on 09.05.2001 and Rs.1,000/- on 16.06.2001. Thus the appellant (complainant) deposited a sum of Rs.31,000/- with the respondent (O.P.) as installment of the price of the plot a sum of Rs.5,000/- has been received towards plot to be allotted to the appellant (complainant) and the respondent (O.P.) assured the appellant (complainant) that remaining amount will be received before registry of the plot and thereafter the plot will be registered in favour of the // 3 // appellant (complainant). The appellant (complainant) was being assured by the respondent (O.P.) that the plot will be registered her favour at the earliest but when in the year 2009 she contacted the respondent (O.P.) then the respondent (O.P.) informed her in writing that the lay-out of colony has been changed, therefore, the vacated plot No.89 will be registered at the earliest by the respondent (O.P.) in favour of the appellant (complainant), but when the allotted plot was not registered by the respondent (O.P.) in favour of the appellant (complainant) then on 07.02.2010, 11.09.2010, 22.10.2010 and 08.01.2011 the appellant (complainant) contacted the respondent (O.P.) through mobile and request to register the plot in her favour, but the respondent (O.P.) told her that a case relating to plot is pending before the District Forum, Rajnandgaon and after closing of the case, he will register the plot in her favour, but till date inspite of receiving amount of installments, the respondent (O.P.) did not register the plot in her favour . Therefore, the appellant (complainant) filed consumer complaint before the District Forum against the respondent (O.P.) and prayed for granting reliefs, as mentioned in the complaint.
3. None appeared before the District Forum for the respondent (O.P.), therefore, the matter was proceeded ex-parte against the respondent (O.P.). As the respondent (O.P.) proceeded ex-parte in the matter, therefore, written statement, documents and affidavit is not available on record.
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4. After due appreciation of material available before the District Forum, learned District Forum dismissed the complaint filed by the appellant (complainant) by the impugned order dated 14.12.2012. Hence this appeal.
5. The appellant (complainant) filed documents. Document Nos.1 to 1 to 13 are receipts issued by Saubhagya Estate, Rajnandgaon (M.P.) on various dated in favour of the appellant (complainant), document No.14 to 17 are bills issued in respect of conversation of the appellant (complainant) with the respondent (O.P.) held through phone, document No.18 is changed lay out, document No.19 is also lay-out, document No.20 is letter dated 09.12.2009 provided by the respondent (O.P.) to the appellant (complainant) in respect of changed plot, document No.21 is postal receipt, document No.22 is registered notice dated 23.03.2012 sent by Shri Jayraj Chauthwani, Advocate to the respondent (O.P.) on behalf of the appellant (complainant), document No.23 is envelope returned by the postal department.
6. In the instant appeal, the appellant (complainant) has filed an application under Order 41, Rule 27 of CPC. She sought to file her own affidavit as additional evidence at the appellate stage.
7. We have heard learned counsel for both the parties on this application.
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8. Order 41 Rule 27 CPC reads as under :-
"27. Production of additional evidence in Appellate C o u rt -
(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if -
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
9. From bare perusal of the provisions of Section 41 Rule 27 CPC, it appears that for fulfillment of lacuna of the parties, any document cannot be accepted at the appellate stage as additional evidence. The appellant (complainant) has ample opportunity to file her affidavit before the District Forum when the matter was pending there but at the // 6 // appellate stage, the said affidavit cannot be accepted as additional evidence. If the said affidavit is accepted, then it means that the appellant has succeeded in fulfillment of lacuna of her case, (complainant), therefore, the appellant (complainant) cannot be permitted to file her affidavit to fulfill the lacuna of her case, therefore, the application filed by the appellant under Order 41 Rule 27 CPC is rejected.
10. So far merits of the case is concerned, Shri R.K. Bhawnani, learned counsel for the appellant (complainant) argued that the appellant (complainant) purchased 1500 sq.ft. plot form the respondent (O.P.) and deposited a sum of Rs.52,500/-. In this regard, an agreement was also executed between the parties in the year 1999 and the appellant (complainant) had deposited first installment on 10.04.2000 and thereafter on various dates and last installment was paid on 10.06.2001 to the respondent (O.P.) and the rest of the amount was payable at the time of registry of the plot and the respondent (O.P.) assured the appellant (complainant) for registration of the sale deed, but the respondent (O.P.) did not register the sale deed in favour of the appellant (complainant). The appellant (complainant) continuously contacted with the respondent (O.P.), but the respondent (O.P.) shut down his eyes and ears. In the year 2009, when the appellant (complainant) contacted with the respondent (O.P.) then he wrote a letter on 09.12.2009 to the appellant (complainant) and intimated the // 7 // appellant (complainant) that lay-out was changed and plot no.89 which is vacated will be registered in favour of the appellant (complainant) immediately, but the respondent (O.P.) did not execute sale deed in favour of the appellant (complainant), therefore, the appellant (complainant) filed consumer complaint before the District Forum. The finding recorded by the District Forum, is perverse, erroneous and conclusion arrived at by the District Forum, that documents are not admissible and reliable, is baseless, hence the impugned order passed by the District Forum, is liable to be set aside.
11. Before us, none appeared for the respondent (O.P.), therefore, ex-parte proceedings were initiated against the respondent (O.P.) vide order dated 22.07.2013.
12. We have heard learned counsel for the appellant (complainant) and have perused the record of the District Forum.
13. According to the appellant (complainant) an agreement was executed between the parties in the year 1999 and the appellant (complainant) installment with the respondent (O.P.) on different dates for allotment of plot in her favour, as mentioned in the para 2 of the complaint and according to the appellant (complainant) last installment was paid on 16.06.2001 and for the period from 16.06.2011 till year 2009, there is no correspondence between the parties.
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14. Document Nos.1 to 13 are receipts, which were issued by Saubhagya Estate, Rajnandgaon. In document No.1 & 2, Plot No.94 is mentioned. In document No.3 to 10, the Plot No.92 is mentioned. In document No.11 & 12, Plot No.94 is mentioned. In document No.13, Plot No.B-14 is mentioned.
15. Looking to the above documents, it is not established that actually which plot was purchased by the appellant (complainant). The appellant (complainant) filed document No.20 in which Plot No.89 is mentioned, but this document is in plain paper. The appellant (complainant) has not been able to prove that the said document has been issued or provided by to her by the respondent (O.P.). This document does not bear signature of the respondent (O.P.) or authorized person of the respondent (O.P.), therefore, document No.20 is not an admissible document and is also not acceptable.
16. In Kandimalla Raghavaiah And Co. Vs. National Insurance Co. & Anr., (2009) 7 Supreme Court Cases 768, Hon'ble Supreme Court observed thus:
"17. Section 24-A of the Act bars any fora set up under the Act, from admitting a complaint, unless the complaint is filed within two years from the date on which the cause of action has arisen. The provision expressly casts a duty on the 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. Recently, in SBI v. B.S.Agriculture Industries // 9 // (I) this Court, while dealing with the same provision, has held:
(SCC p. 125, paras 11-12) "11. ...It would be seen from the aforesaid provision that it is peremptory in nature and requires the 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 24-A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within the limitation period prescribed thereunder.
12. 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 24-A 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.
18. The term "cause of action" is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of 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 as "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. (See Sidramappa v. Rajashetty.) 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."
17. In H.P. State Forest Co. Ltd. Vs. M/s. United India Insurance Co. Ltd, 2009 AIR SCW 865., Hon'ble Supreme Court observed thus:
"5. It is clear from the record that the timber had been washed away some time in September 1988 and after prolonged // 10 // correspondence, the respondent ultimately vide its communication dated 13th October, 1988 repudiated the appellant's claim. It is also clear from the counter-affidavit filed by the respondent that the appellant had, vide its letter dated 7th November, 1987, asked for insurance cover for a period of 8 months and that the period of one year fixed in the insurance policy was evidently a typographical mistake which had, in any case, been rectified in the records of the company on 17th December, 1987, that is long before the flood. The claim of the appellant that the respondent - company had, even after the 13th October, 1988, impliedly admitted its liability under the policy also appears to be incorrect as the surveyors had been appointed on the persistent demand of the claimant / appellant and the premium taken thereafter was only to make good the deficiency in the premium that had been paid for the policy for the period of eight months. It is therefore, apparent that as on the date of the flood, there was no insurance policy in existence or any commitment on behalf of the respondent to make the payment under the policy. We therefore, endorse the argument raised by the respondent that even accepting the case of the appellant at its very best that the period of limitation would be 3 years under Section 44 of the Limitation Act, the complaint would, even then, be beyond time, having been filed in April 1994."
18. In Smita Madhav Patki Vs. National Insurance Co. Ltd. & Ors, I (2013) CPJ 331 (NC), Hon'ble National Commission observed thus:
"17. State Commission in its order has observed:
5. Cause of action for the insurance claim in question but arose on the death of late Madhav Patki and not on the date of repudiation of the insurance claim as alleged by the complainant. A useful reference can be made to the decision of the Apex Court in the matter of Kandimalla Raghavaiah & Co. v. National Insurance Co.
Ltd. and Others, 2009 CTJ 951 (SC) (CP). Insurance claim, thus, is preferred beyond the period of two years from the date of cause of action, supra and as such barred by limitation. There is no application for condonation of delay, admittedly, made.
6. Janata Personal Group Accident Policy is on record. Amongst other terms it also submitted as under:
"It is also hereby further expressly agreed and declared that if the Company shall disclaim liability to the insured for any claim hereunder and such claim shall not within 12 calendar months // 11 // from the date of such ...have been made the subject of a suit in a Court of Law then the claim shall for all purpose be deemed ... been abandoned and shall not thereafter be recoverable hereunder."
7. As held by the Apex Court in the matter of Himachal Pradesh State Forest Co. Ltd. v. United India Insurance Co. Ltd, (2009) 2 SCC 252, though above referred clause in view of Section 28 of the Contract Act will not be acted upon for the curtailment of the period of limitation still the later part of it which refers to extension of the right itself unless exercised within specified time can be enforced. Therefore, since the claim was not made within 12 calendar months from the date of happening, the claim shall for all purposes be deemed to have been abandoned and is not recoverable after the expiry of the said period.
8. For the above said reasons, we find that no fault can be found with the impugned order resulting into dismissal of consumer complaint. Holding accordingly, we pass the following order."
19. According to the appellant (complainant), document No.20 was given to her by the respondent (O.P.), but the appellant (complainant) has not been able to prove that the said document has been issued by the respondent (O.P.). If for the sake of argument, it is presumed that this document was given by the respondent (O.P.) to the appellant (complainant), even then in this document the date is mentioned as 09.12.2009 and limitation under Section 24A of the Consumer Protection Act, 1986 for filing consumer complaint before the District Forum was running from 09.12.2009. The limitation for filing complaint is two years, therefore, the appellant (complainant) was required to file the complaint before the District Forum within 2 years from the period of limitation i.e. till 08.12.2011 but the complaint has been filed on 20.07.2012 which is barred by time on both counts.
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20. Looking to the nature of the complaint, it is clear that the appellant (complainant) was required to file suit for specific performance of the contract and only Civil Court has jurisdiction to decide the matter, but the appellant (complainant) has failed to seek relief from the appropriate Forum and looking to the nature of the complaint, the District Forum, has no jurisdiction to decide the matter. The complaint of the appellant (complainant) is apparently barred by time, therefore, the appellant (complainant) is not entitled for getting any relief from the respondent (O.P.).
21. Therefore, the complaint of the appellant (complainant) is barred by limitation and is also liable to be dismissed on this ground. The finding recorded by the District Forum is just and proper and does not call for any interference by this Commission.
22. The appeal filed by the appellant (complainant) being devoid of any merits, deserves to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar)
President Member Member
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