State Consumer Disputes Redressal Commission
1. Haryana Urban Development ... vs Tejinder Sachdeva Son Of Sh. Pyare Lal ... on 27 September, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.416 of 2009 Date of Institution: 20.03.2009 Date of Decision: 27.09.2012 1. Haryana Urban Development Authority, through its Estate Officer, Panipat. 2. Haryana Urban Development Authority, through its Chief Administrator, Sector 6, Panchkula. Appellants (Ops) Versus Tejinder Sachdeva son of Sh. Pyare Lal Sachdeva, resident of House No.256, Ram Nagar, Tehsil Camp, Panipat. Respondent (Complainant) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri Raman Gaur, Advocate for appellants. Respondent exparte. O R D E R
Justice R.S. Madan, President:
This appeal has been preferred against the order dated 30.11.2007 passed by District Consumer Forum, Panipat whereby the complaint filed by respondent-complainant against the appellants-opposite parties was accepted and following direction was issued:-
..the Ops are directed to withdraw the demand of interest in respect of the SCO No.21 Sector 25 transport Nagar, Panipat. We further direct the Ops to carry out necessary repairs to remove the dampness in the building and also to make perfect arrangements if the building falls deep than the surrounding roads etc. The Ops shall, make the complaint of this order within a period of 30 days from the date of receipt of copy of this order.
The brief facts of the present case as emerged from the record are that showroom bearing site No.21 measuring 150 Sq. meters situated at Sector-25, Transport Nagar, HUDA, Panipat was allotted to Bhim Singh son of Lehna Singh resident of Village and P.O. Sewah District Panipat vide allotment letter bearing Memo No.477 dated 01.08.2000. The complainant being the General Power of Attorney holder of the complainant filed complaint before the District Forum with the averment that the opposite parties charged excess rate of interest on the instalment amount. It was further stated that the material used by the opposite party in the construction of the above said show room was of inferior quality and the opposite parties were charging the compound interest on the due instalments from the complainant. There was water leakage in the basement of the showroom and moisture in the walls. The public utilization services (PUS) and parking etc were not developed. The showroom is 10 feet lower/deep from the GT Road, Panipat due to which rainy water enters in the showroom. The electric system provided by the opposite party No.1 was stolen by the thieves and there was no wire/cable present in the underground fitting. The water supply, sewerage services in the area were defective. Thus, alleging deficiency in service and unfair trade practice on the part of the opposite parties, the complainant filed complaint before the District Consumer Forum.
Upon notice, the opposite parties appeared and contested the complaint by filing written statement stating in the preliminary objections that the complaint was barred by limitation as the allotment was made on 01.08.2000 and the first instalment had become due within six months of the allotment but the complaint was filed on 23.03.2006 whereas as per the provision of Section 24A of the Consumer Protection Act, 1986 the complaint should have been filed within two years from the date of allotment. It was further stated that the complainant had no locus standi to file and maintain the complaint because neither the second G.P.A. nor the original allottee was impleaded as a party to the complaint. The opposite parties further took the plea that the building in question was allotted to the original allottee on a fix auction price. the ten percent was to be deposited before the auction and fifteen percent was to be deposited within 30 days of the allotment and the remaining price were to be paid in equal half yearly instalments. But the allottee had not paid the instalments regularly as per the schedule prescribed in the allotment letter and for that reason the opposite parties were entitled to recover interest on the delayed payments as per clause mentioned in the allotment letter. The possession of the building site was given to the allottee after completing the development works. Thus, denying any kind of deficiency in service on their part, the opposite parties prayed for dismissal of the complaint.
On appraisal of the pleadings of the parties and the evidence adduced on the record, District Forum accepted complaint and issued direction to the opposite parties as noticed in the opening para of this order.
Aggrieved against the order of the District Forum, the opposite parties have come up in appeal.
Heard.
It is contended by the learned counsel for the appellants-opposite parties that the District Forum fell in error while passing the impugned order in favour of the complainant despite the fact that the complaint was hopelessly barred by limitation and also that the SCO site was purchased for commercial purpose and complaint was filed through GPA which was not maintainable.
Keeping in view the contention raised on behalf of appellants-opposite parties, following questions are for consideration before us to decide this appeal.
i) Whether the complaint filed by the complainant was within limitation in view of the provision of Section 24A of the Consumer Protection Act, 1986?
ii) Whether the complaint filed through G.P.A. is maintainable?
iii) Whether any dispute with respect to the SCO which was purchased by the allottee for commercial use, can be decided under the Consumer Protection Act, 1986?
Admittedly, the SCO in question was allotted to the original allottee on 01.08.2000 and the complaint was filed by the complainant on 23.03.2006 with the allegations that the opposite parties charged excess interest on the instalments and also that there was no development in the area where the SCO site is located. As per the provisions of Section 24A of the Consumer Protection Act, 1986 a period of two years has been prescribed for filing complaint from the date of cause of action. In the instant case the cause of action had accrued to the allotted on 01.08.2000 when the SCO was allotted to him. If there was no development at the site, the same could have been challenged within two years from 01.08.2000 by filing complaint under the Consumer Protection Act and not thereafter. But the complainant failed to file complaint within the prescribed period of two years. Hence, the complaint filed by the complaint was not maintainable. Support in this regard can be taken from the observation made by Honble Supreme Court in case cited as State Bank of India v. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) =JT 2009(4) SC 191, wherein it has been held that:-
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 V.N. Shrikhande (Dr.) Versus Anita Sena Fernandes 2011 CTJ 1 (SUPREME COURT) (CP) Honble Supreme Court has held that:-
Section 24A (1) contains a negative legislative mandate against admission of a complaint which has been filed after 2 years from the date of accrual of cause of action. In other words, the consumer forums to not have the jurisdiction to entertain a complaint if the same is not filed within 2 years from the date on which the cause of action has arisen. This power is required to be exercised after giving opportunity of hearing to the complainant, who can seek condonation of delay under Section 24A(2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under Section 24A(1). If the complaint is per se barred by time and the complainant does not seek condonation of delay under Section 24A (2), the consumer forums will have no option but to dismiss the same.
The instant case is fully covered by the authoritative pronouncements in State Bank of India v.
B.S. Agricultural Industries (Supra) and V.N. Shrikhande (Dr.) Versus Anita Sena Fernandes (Supra). Thus, the District Consumer Forum committed error in entertaining and deciding the complaint which was hopelessly barred by time.
The other aspect of the case is that the complaint was filed through G.P.A. Learned counsel for the appellants has argued that the SCO site was allotted to the allottee and the complaint through G.P.A. was not maintainable. Honble Apex Court in Special Leave Petition (C ) No.13917 of 2009 titled as Suraj Lamp & Industries Pvt. Ltd. Versus State of Haryana and another decided on 11.10.2011 has held as under:-
III-Effects of SA/GPA/WILL transactions
3. The earlier order dated 15.5.2009, noted the ill-effects of such SA/GPA/WILL transactions (that is generation of black money, growth of land mafia and criminalization of civil disputes) as under:
& quot; Recourse to `SA/GPA/WILL' transactions is taken in regard to freehold properties, even when there is no bar or prohibition regarding transfer or conveyance of such property, by the following categories of persons: (a) Vendors with imperfect title who cannot or do not want to execute registered deeds of conveyance.
(b) Purchasers who want to invest undisclosed wealth/income in immovable properties without any public record of the transactions. The process enables them to hold any number of properties without disclosing them as assets held.
(c) Purchasers who want to avoid the payment of stamp duty and registration charges either deliberately or on wrong advice. Persons who deal in real estate resort to these methods to avoid multiple stamp duties/registration fees so as to increase their profit margin.
Whatever be the intention, the consequences are disturbing and far reaching, adversely affecting the economy, civil society and law and order. Firstly, it enables large scale evasion of income tax, wealth tax, stamp duty and registration fees thereby denying the benefit of such revenue to the government and the public. Secondly, such transactions enable persons with undisclosed wealth/income to invest their black money and also earn profit/income, thereby encouraging circulation of black money and corruption.
This kind of transactions has disastrous collateral effects also. For example, when the market value increases, many vendors (who effected power of attorney sales without registration) are tempted to resell the property taking advantage of the fact that there is no registered instrument or record in any public office thereby cheating the purchaser. When the purchaser under such `power of attorney sales' comes to know about the vendors action, he invariably tries to take the help of musclemen to `sort out' the issue and protect his rights. On the other hand, real estate mafia many a time purchase properties which are already subject to power of attorney sale and then threaten the previous `Power of Attorney Sale' purchasers from asserting their rights. Either way, such power of attorney sales indirectly lead to growth of real estate mafia and criminalization of real estate transactions & quot;
It also makes title verification and certification of title, which is an integral part of orderly conduct of transactions relating to immovable property, difficult, if not impossible, giving nightmares to bonafide purchasers wanting to own a property with an assurance of good and marketable title.
The facts of the instant case are fully attracted to Suraj Lamp & Industries Pvt. Ltd. versus State of Haryana and another case (Supra). Hence, the complaint filed by the allottee through G.P.A. is not maintainable which is against the statutory provision of the Consumer Protection Act.
The next contention raised on behalf of the appellants is that the SCO site in question was purchased by the allottee for commercial purpose and therefore any dispute with respect to the said SCO cannot be decided under the Consumer Protection Act, 1986 in view of the judgment rendered by Honble Supreme Court in case cited as Birla Technologies Ltd versus Neutral Glass and Allied Industries Ltd, 2011(1) CPR 1 (SC) wherein Honble Supreme Court has observed that:-
(i) Consumer Protection Act, 1986 Section 2(1)(d)(i) A person purchasing goods for commercial purposes is not a consumer.
( Para 6)
(ii) Consumer Protection Act, 1986 Section 2(1)(d)(ii), after amendment-A person availing services for any commercial purpose is not a consumer. ( Para
8)
(iii) Consumer Protection Act, 1986 Section 2(1)(d)(i) and (ii) The complaint filed after amendment of the Act-Goods purchased for commercial purposes-Services were hired or availed of for commercial purposes-Complaint not maintainable. ( Para 9)
(iv) Limitation Act, 1963 Section 14 Period spent in prosecuting proceedings before wrong forum-To be excluded while determining limitation. ( Para 10) In para 9 of Birla Technologies Ltds case (Supra) the Honble Apex Court held that:-
9. In view of the findings of the National Commission that the goods sold by the appellant to the respondent/complainant amounted to goods and that such goods were purchased for commercial purpose of earning more profits, there could be no dispute that even the services which were offered had to be for the commercial purpose. Nothing was argued to the contrary. It seems that the whole error has crept in because of the wrong factual observation that the complaint was filed on 1.8.2000. In that view, it has to be held that the complaint itself was not maintainable, firstly, on the count that under Section 2(1)(d)(i), the goods have been purchased for commercial purposes and on the second count that the services were hired or availed of for commercial purposes. The matter does not come even under the Explanation which was introduced on the same day i.e. on 15.3.2003 by way of the amendment by the same Amendment Act, as it is nobodys case that the goods bought and used by the respondent herein and the services availed by the respondent were exclusively for the purpose of earning the respondents livelihood by means of self-employment. In that view, it will have to be held that the complaint itself was not maintainable in toto.
The facts of the instant case are fully attracted to Birla Technologies Ltds case (Supra). The act and conduct of the allottee Bhim Singh shows that he had not purchased the SCO in question for earning livelihood but with a commercial aim. The silence of the original allottee in this regard proves that the SCO in question was purchased for earning more profits.
As a sequel to our aforesaid discussions, it established on the record that impugned order passed by the District Forum is not sustainable in the eyes of law the complaint being barred by limitation, G.P.A. cannot be a consumer and also that the SCO site in question was purchased by the original allottee Bhim Singh with commercial motive to earn more profits. District Consumer Forum erred in deciding the complaint and therefore the impugned order cannot sustain.
Hence, this appeal is accepted, impugned order is set aside and the complaint is dismissed.
Announced: Justice R.S. Madan 27.09.2012 President B.M. Bedi Judicial Member