National Consumer Disputes Redressal
Mr. Vijaykant Motilal Kothari vs M/S. Safire Hotel Private Limited on 4 April, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1014 OF 2011 with I.A. No.01 of 2011 (Stay Application) I.A. No.01 of 2011 (Condonation of Delay) I.A. No.03 of 2011 (Exemption Application) (From the order dated 12.10.2010 First Appeal No.617/2008 of the State Commission, Maharashtra) Mr. Vijaykant Motilal Kothari R/at -6/C, Motibaug, Pune Satara Road Pune 411 037. Petitioner Versus M/s. Safire Hotel Private Limited Through its Director, Mr. Bhupendra P. Shroff, Address : 39/1-A, Wellesly Road, Sangam Bridge, Pune 411 001. Respondent BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HONBLE MRS. REKHA GUPTA, MEMBER For the Petitioner : Mr. S.N. Bhat, Advocate with Mr. N.P.S. Panwar, Advocate For the Respondent : Ms. Meenakshi Lekhi, Advocate with Ms. Pooja Jain, Advocate Pronounced on: 4th April , 2013 ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER Present petition has been filed under Section 21 (b) of Consumer Protection Act, 1986 (for short, Act) challenging order dated 12.10.2010, passed in (FA No.617 of 2008) whereby Consumer Disputes Redressal Commission, Mumbai (for short, State Commission) dismissed the appeal of petitioner/complainant.
2. Brief facts are that petitioner entered into an agreement with respondent/O.P. for purchase of a shop in Sangamvadi Town Planning Scheme, Pune. The consideration amount was paid and petitioner was put in possession of the shop on 10.7.2001. It is alleged by the petitioner that respondent failed to provide following amenities as per the agreement:-
(i) Respondent has not provided two driveways to the shop from Pune Mumbai Highway as per the Agreemen;.
(ii) No separate electricity meter is provided for the shop of the petitioner and
(iii) Respondent has not formed an Association of apartment holders or a Co-op Society or a Ltd. Company as provided in the agreement.
3. Alleging aforesaid deficiency, petitioner filed consumer complaint before District Consumer Disputes Redressal Forum, Pune (for short, District Forum)
4. Respondent in its written statement took an objection that complaint is hopelessly barred by limitation, as cause of action arose on 30.12.2000 when agreement was executed between the parties and petitioner was put in possession of shop on 10.7.2001. Whereas, the complaint has been filed in the year 2005, which is beyond the period of limitation. It is denied that driveways to the shop of the petitioner had not been provided. It is stated that such driveways have been constructed by respondent as per the specifications given in Annexure E to the complaint. The same is complete and is being used by the petitioner as an access to the shop premises. It is also stated that until a separate electricity meter is provided to the petitioner, a stopgap arrangement has been made. A sub-meter is provided to each shop premises and shop owners have been paying electricity consumption charges in accordance with those sub-meters. Petitioner is also receiving electricity supply through a separate sub-meter and is making payment thereof to the respondent.
5. District Forum, vide order dated 16.4.2008, partly allowed the complaint and passed following directions;
The complaint is partly allowed.
The order dtd. 31/Jan/2008, passed by this Forum is hereby made absolute.
Subject to the complainant depositing with the opposite party, the requisite amount towards legal charges, share money, stamp duty & registration charges, within a period of two months from the date of this order, the opposite party is directed either to form & register a co-operative housing Society, a condominium of apartment holders or a company and to further execute conveyance in favour of such legal entity, within a period of four months from the date of receipt of the amounts, as ordered here-in-above from the Complainant.
The opposite party is hereby directed to provide the driveways to the shop of the Complainant, as specified in the agreement, within a period of two months from the date of this order. However, it is made clear that in case the Opposite party has already provided the driveways to the Complainants shop, this order would automatically stands vacated.
The complainant is at a liberty to obtain a separate electricity meter from the Maharashtra State Electricity Distribution Company Ltd., by preferring an application to that effect before the competent authorities. It is hereby made clear that in case, the complainant chooses to prefer such an application then, in such a case, the opposite party shall handover the requisite No Objection Certificate to the complainant, subject to the recovery of all dues towards the electricity charges.
6. Not satisfied by the order of District Forum, petitioner filed an appeal before the State Commission which dismissed the same, vide impugned order.
7. Being aggrieved, petitioner filed (Writ Petition No.9298 of 2010) before the High Court of Maharashtra which vide its order dated 9.12.2010, dismissed the said writ petition.
8. Aggrieved by the order of High Court, petitioner filed (Special Leave Petition No.3740 of 2011) in the Apex Court. The same was dismissed as withdrawn by the petitioner with liberty to take all steps available to him in accordance with law.
9. Now, petitioner has filed present petition alongwith application seeking condonation of delay of 73 days as well as application seeking exemption from filing the certified copy of the impugned order.
10. Respondent has filed written reply to this petition as well as to the application for condonation of delay.
11. We have heard learned counsel for the parties and gone through the record.
12. Grounds on which condonation of delay has been sought read as under;
3. After the disposal of the appeal before the State Commission, the petitioner consulted his local counsel to take further steps in the matter. The local counsel advised him to file a writ petition before the High Court of Judicature at Mumbai. Accordingly, the petitioner filed a writ petition before the High Court of Judicature at Mumbai in the month of November, 2010.
4. The High Court by its order dated 9.12.2010 dismissed the writ petition filed by the petitioner.
5. After disposal of the writ petition, the petitioner was advised to file a special leave petition before the Honble Supreme Court of India. As per the advised, the petitioner filed a special leave petition before the Honble Supreme Court of India on 29.1.2011.
6. The Honble Supreme Court of India by its order dated 18.2.2011 dismissed the special leave petition as withdrawn with liberty to take all steps which are available to the petitioner in accordance with law.
7. Thereafter the petitioner collected case papers from his counsel and sent the same to present counsel to file review petition before this Hon'ble Commission. After receiving the case papers, the counsel for the petitioner prepared the draft of the revision petition, applications and sent to the same to petitioner alongwith proforma of the affidavits. After receiving the same, the petitioner sent duly corrected revision petition and affidavits alongwith duly sworn affidavits and duly executed vakalatnama to the counsel in Delhi. The counsel for the petitioner in Delhi received the same in the second week of March, 2011 and got the matter ready for filing.
8. The appellant-petitioner submits that in the circumstances herein above, a delay of 73 days has occurred in filing the above mentioned revision petition.
9. The appellant-petitioner submits that the said delay caused in filing the above mentioned revision petition is neither deliberate nor intentional but the same has occurred in the circumstances narrated herein above.
13. The gist of the grounds cited in application for delay is that, petitioner earlier challenged the order of State Commission by way of writ petition before Mumbai High Court. However, vide order dated 9.12.2010, Mumbai High Court dismissed the writ petition. Thereafter, petitioner filed Special Leave Petition in the Apex Court which was withdrawn with liberty to take steps as available under the law.
14. In this context, it would be pertinent to refer to a decision of Honble Supreme Court in M/s Advance Scientific Equipment Ltd. & Anr. Vs. West Bengal Pharma & Photochemical Development Corporation Ltd. (Appeal (Civil) Nos. 17068-17069/2010, decided on 9 July 2010) in which Court observed interalia as under;
We are further of the view that the petitioners venture of filing petition under Article 227 of the Constitution was clearly an abuse of the process of the Court and the High Court ought not to have entertained the petition even for a single day because an effective alternative remedy was available to the petitioner under Section 23 of the Act and the orders passed by the State Commission did not suffer from lack of jurisdiction.
15. The, Honble Supreme Court in Anshul Aggarwal Vs. New Okhla Industrial Development Authority, IV (2011) CPJ 65(SC) has observed;
It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras.
16. Decision of Anshul Aggarwal (supra) has been reiterated in Cicily Kallarackal Vs. Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein Honble Supreme Court observed;
4 This Court in Anshulal Aggarwal v. NOIDA, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in a matter where the special Courts/Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute (s).
5. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.
6. Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay.
17. Hence, in view of the decision of M/s Advance Scientific Equipment Ltd. (supra) High Court ought not to have entertained the writ petition, since petitioner had an effective alternate remedy available under the Consumer Protection Act, 1986. Under these Circumstances, act of petitioner in approaching a wrong forum, will not entitle him to have the delay condoned.
18. Accordingly, we find no just and sufficient cause to condone the long delay of 73 days in filing of the present petition. Application for condonation of delay without any merit as well having no legal basis is not maintainable.
19. Even otherwise, complaint filed by petitioner before the District Forum was hopelessly barred by limitation. Respondent in its written statement has taken a specific plea that the complaint which has been filed in the year 2005, is beyond the period of limitation.
20. Averments regarding cause of action made in para 22 of the complaint, read as under;
The complainant most humbly submits that the cause of action for the present complaint firstly arose when the opponent executed the agreement referred to herein and promised to provide various amenities including ones not provided so far. It further arose when the opponent was called upon by way of legal notice dated 3rd March, 2005 not only to complete/provide the incomplete amenities but also to form either an Association of Apartment Holders/ a Co-operative Housing Society/Limited Company as required under the prevailing laws and to execute conveyance. The complainant submits that none of these amenities have been provided by the opponent so far. The conveyance too has not been executed as per the provisions of law. There is, therefore, a continuous cause of action. The complaint of the complainant is thus well within the period of limitation prescribed by law.
21. Thus, cause of action firstly, arose on 30.12.2000 when the agreement was executed between the parties.
Accordingly, complaint ought to have been filed by 30.12.2002.
22. Section 24-A of the Act, deals with such situation and the same is reproduced as under ;
24-A. 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 Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.
23. The above provision 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.
24. In State Bank of India Vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, Apex Court, while dealing with Section 24A of the Act, 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.
25. Thus, complaint filed before the District Forum was hopelessly barred by limitation. The District Forum ought not to have admitted the complaint at all. Further, by serving the legal notice or by making representation, the period of limitation cannot be extended by the complainant. In this context reference can be made to the law laid down by Hon'ble Supreme Court in the judgment reported as Kandimalla Raghavaiah & Co. Versus National Insurance Company Ltd. and another 2009 CTJ 951 (Supreme Court) (CP) wherein it has been held;
By no stretch of imagination, it can be said that Insurance Companys reply dated 21st March, 1996 to the legal notice dated 4th January, 1996 declining to issue the forms for preferring a claim after a lapse of more than four years of the date of fire, resulted in extending the period of limitation for the purpose of Section 24A of the Act. We have no hesitation in holding that the complaint filed on 24th October, 1997 and that too without an application for condonation of delay was manifestly barred by limitation and the Commission was justified in dismissing it on that short ground.
26. Even on merits, petitioner has no case in view of the concurrent findings of fact given by the two fora below.
27. District Forum, in its order has held;
It cannot be disputed that the agreement made in between the parties on 30.12.2000 would be binding upon the parties. The agreement dtd. 30.12.2000 would be binding upon the parties. The agreement dtd.
30.12.2000 governs the rights, title & interests of the parties, vis--vis the relief regarding the alleged conveyance. We may refer to clause No.(24) of the agreement dtd. 30.12.2000. It pertains to the obligation of the Opposite party to execute the conveyance in favour of a co-operative society or a condominium or a company. Certain deposit amount was required to be kept by the purchaser for execution of such conveyance. Unfortunately, the exact amount which was required to be deposited with the Opposite party is left blank. We do not know if any deposit towards the formation of the society and consequent conveyance thereof is made by the complainant or otherwise. The complaint is totally silent in this regard. The concluding paragraph of clause No.(25) of the agreement is relevant for our purpose. It provides that only after deposit of such sums towards stamp-duty & registration charges, as mentioned in clause No.19 of the agreement, the shop-purchasers shall be entitled to conveyance. There is, therefore, an obligation on the part of the complainant to deposit certain amount with the Opposite party. Only on such deposit being made, which shall be towards the stamp-duty and registration charges, the complainant shall be entitled for conveyance. As stated earlier, the complaint is totally silent in this regard. The exact amount is not specified in the agreement. We do not know if any deposit was paid to the opposite party by the complainant. The payment of deposit is, therefore, a condition precedent before the complainant shall be entitled to the conveyance. Said condition prima-facie has not been complied with by the complaint, and therefore, the delay attributed on the part of the Opposite party is not justified.
28. The State Commission, while concurring with the order of District Forum, observed;
It is the fact that opponent has not provided the separate meter to the appellant. The appellant is taking the electric supply from the sub-meter. Till May 2006, there was no dispute regarding the payment of electricity charges. After May 2006 the appellant stopped paying electricity charges. The appellant could not prove that the bills were excessive, arbitrary and exorbitant. No doubt, the appellant is entitled for a separate electric meter and for the electric meter, No Objection Certificate of the Respondent is necessary. However, it is the responsibility of the appellant to clear the outstanding bills. Accordingly, the opponent is directed to issue No Objection Certificate for getting the independent meter.
Executing the conveyance is the legal responsibility of the opponent and for executing the conveyance the opponent should register a cooperative Housing Society or a company or the Association of shop purchasers. It is a fact that the opponent has not initiated the process. In this context, the agreement is binding on both the parties. Clause No.24 explains the obligations of both the parties. Clause No.24 reads thus-
Commencing a week after notice in writing is given by developer to the shop purchaser that the shop is ready for use and occupation, the shop purchaser shall be liable to bear and pay the proportionate share (i.e. in proportion to the floor area of the offices) of outgoings in respect of the said land and building namely, local taxes, betterment charges or such other levies by the concerned Local Authority and/or the Government, water charges, insurance, common lights, repairs and salaries of clerks, sweepers chowkidars and other expenses and maintenance of the said land and building until Society or Limited Company or an Association of Apartment Owners is formed and the said building is transferred to it, shop purchaser shall pay to the developer such proportionate share of outgoing as may be determined.
The opponent has not complied with the condition Clause 24. The Learned counsel has not pointed out that the condition of Clause 24 is complied by the appellant. Taking into consideration the obligation and legal responsibilities of both the parties, the Forum below made observations regarding the execution of conveyance.
The Forum below passed the order after taking into consideration the pleadings of both the parties and we do not find anything wrong with the order passed by the Forum below.
29. Thus, looking from any angle, we do not find any illegality or infirmity in the impugned order passed by the State Commission. Present revision petition being barred by limitation as well as having no merit and without any legal basis, is hereby dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only). Petitioner is directed to pay/deposit the cost by way of demand draft in the name of respondent, within four weeks from today.
30. In case, petitioner fails to pay the aforesaid cost, within the prescribed period, then he shall also be liable to pay interest @ 9% p.a., till realization.
31. List on 17.5.2013 for compliance.
..J (V.B. GUPTA) PRESIDING MEMBER ..
(REKHA GUPTA) MEMBER Sg.