National Consumer Disputes Redressal
Lilavati Kirtlal Mehta Medical Trust & ... vs M/S. Unique Shanti Developers & 2 Ors. on 1 March, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 117 OF 2016 1. LILAVATI KIRTLAL MEHTA MEDICAL TRUST & ANR. (REP. BY ITS INTERIM BOARD OF TRUSTEES) A-791, BANDRA RECLAMATIO, BANDRA(WEST), MUMBAI-400050 ...........Complainant(s) Versus 1. M/S. UNIQUE SHANTI DEVELOPERS & 2 ORS. HARSH PLAZA, 1ST FLOOR, ABOVE RELIANCE FRESH, POONAM VIHAR, OPP. SHANTI NAGAR, SECTOR-2, MIRA ROAD(EAST),THANE-401107 2. MIRA BHAYANDER MUNICIPAL CORPORATION, INDIRA GANDHI BHAVAN, CHATRAPATI SHIVAJI MARG, BHAYANDER(WEST), THANE-401101 3. MRS. CHARU K. MEHTA, A-791, BANDRA RECLAMATION, BANDRA(WEST), MUMBAI-400050 ...........Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA, MEMBER
For the Complainant : Mr. Rohit Sharma, Advocate For the Opp.Party : Dated : 01 Mar 2016 ORDER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
Complainant no.1 Trust, through its interim Board of Trustees appointed by Hon'ble Supreme Court alongwith Mrs. Rekha Sheth, permanent Trustee of complainant no.1 has filed the instant consumer complaint alleging that opposite party no.1 developed more than 50 acres of agricultural land, presently situated within the municipal limits of Mira Bhayander Municipal Corporation after obtaining land use conversion from District Collector Thane vide order dated 17.02.1993. The Opposite Party No.1 developed two building known as 'Madhuvan' in the colony 'Shanti Park'. The said two buildings had 32 one BHK flats. Out of the 32 flats aforesaid, the complainant Trust purchased 29 flats for providing hostel facilities to the nurses employed by Lilavati Hospital. The 29 sale agreements were executed on 25.11.1995 and conveyance deeds in respect of said flats were registered in favour of complainant no.1 on 16.03.1996. It is alleged that architect of said building Shri Avinash Mhatre issued completion certificate of those flats on 17.02.1997. According to the complainants, after taking possession of those flats, the complainants used them as residential quarters for the nurses employed with Lilavati Hospital till the year 2002. It is alleged that within 2-3 years of the completion, the building started developing cracks in the structure. The terrace slab started sagging at few locations resulting in leakage of water. The cement plaster started coming of at many places. In the nutshell, case of the complainant is that building quality was poor and as a result the structure became so dilapidated that the complainant had to vacate the said flats in the year 2002 and since 2004, the flats are lying unused. It is further alleged that interim Board of Trustees constituted by Hon'ble Supreme Court vide order dated 21.05.2014 called for structural report from M/s Raje Structural Consultants, who submitted their report in September 2015, wherein it was opined that the repair of the building would be very difficult and cost of repairs would come out to be much more than the cost of reconstruction. It is also alleged that opposite party no.1 somehow managed to obtain occupation certificate from Mira Bhayander Municipal Corporation which appears to be result of fraud played upon the municipal corporation. The complainant thus has raised the consumer dispute seeking following reliefs:
"1. Pass an order directing the opposite party no.1 to pay compensation to the complainant no.1 to the tune of Rs.7,65,95,400 ( Rupees Seven Crore Sixty Five Lacs Ninety Five Thousand and Four Hundred Only) on account of annual loss of rent from 2002 till 2015 and on account of cost of reconstruction of the residential building called 'Madhuvan' bearing no. C-66 and 67, Shanti Park, Mira Road ( East), Thane-401107 alongwith future loss of rent @ Rs.35 lacs per years, and a. Pass an order directing the opposite party no.1 to constitute a cooperative society or company of purchasers of flats of 'Madhuvan' and to convey title of 29 flats to the complainant in accordance with Section 10 & 11 of the Maharashtra Ownership of Flats Act, 1963; and b. Pass an order directing the opposite party no.1 to pay an amount of Rs.5,00,000 ( Rupees Five Lacs only) on account of damages for harassment caused; and c. Award costs of this litigation in favour of the complainant;
d. Pass any other order this Hon'ble Commission deems fit in the facts and circumstances of the case."
2. We have heard the complainants on admission.
3. On careful perusal of the complaint, we find that complaint is barred by limitation because of following reasons: Undisputedly, the conveyance deeds in respect of subject flats were executed in favour of the complainants Trust in March 1996. As per the complainants, they received the possession of subject flats and those flats were used for residence of nurses employed by Lilavati hospital till the year 2002, when the building started showing cracks and sign of dilapidation. It is further the claim of the complainants that the flats in question because of structural conditions are lying unused since 2004. Thus, it is clear that if at all the complainants were aggrieved of the quality of the construction and defects which occurred in the building, the cause of action for raising consumer dispute for the same arose in the year 2004.
4. Section 24-A of the Act provides for limitation for filing the consumer complaint and it reads as under:
24A. Limitation period. - (l) 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 (l), 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.
5. On reading of the above, it is clear that Section 24-A casts an obligation upon the Consumer Fora not to admit a complaint unless it has been filed within two years from the date on which cause of action has arisen. No doubt, clause 2 of Section 24 empowers the consumer fora to condone the delay provided sufficient cause is shown. In the instant case, the consumer complaint has been filed with inordinate delay of 12 years from the date on which the cause of action last arose. No application for condonation of delay has been filed. Learned counsel for the complainants has contended that legally a Trust cannot file a consumer complaint in its own name and the dispute if at all has to be raised by trustees. It is contended that there was a dispute regarding the control of the trust between different groups and the interim board of Trustee appointed by the Supreme Court vide order dated 21.05.2014. Therefore, the period of limitation should be computed from the said date because in absence of the Board of Trustees, the complaint could not have been filed.
6. We do not find merit in the above contention. We have perused the order dated 21.05.2014 in the matter of Kishor K Mehta Vs. Rekha H Sheth (2014) 16 SCC 521. On reading of the above, it is clear that aforesaid order constituting interim Board of Trustees has been passed in Contempt Petition (C ) No. 193 of 2014 in SLP (C ) No. 3772 of 2014 which originated from Writ Petition No. 329 of 2014 filed by Kishore Kirtilal Mehta, Rajiv K Mehta, Rajesh Mehta, Prashant Mehta and Reshma Mehta in Bombay High Court. From the above sequence of facts, it can be safely inferred that there was some dispute regarding the constitution of Board of Trustees of the complainant Trust in the year 2014. For the purpose of issue regarding limitation, we have to see whether or not there was any competent Board of Trustee of complainant no.1 Trust between 2004 to 2014. It is not the case of the complainant that there was no competent Board of Trustee of complainant no.1 w.e.f. 2004 onwards who could have filed the complaint. In absence of any such allegation, we are of the view that instant complaint has been filed after the expiry of more than decade from the date on which cause of action last arose. Thus, the complaint is barred by limitation. It is accordingly rejected.
......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... REKHA GUPTA MEMBER