State Consumer Disputes Redressal Commission
Mangal Ram vs The Punjab State Federation Of ... on 10 June, 2020
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
1.Consumer Complaint No.133 of 2020 Date of institution : 04.06.2020 Date of decision : 10.06.2020 Mangal Ram son of Shri Parshotam Dass, resident of Flat No.1726/A, Category-III, Cooperative Housing Complex, Sector-79, (Group-II), SAS Nagar, Mohali.
.......Complainant Versus
1. The Punjab State Federation of Cooperative House Building Societies Ltd. (HOUSEFED, PUNJAB), Punjab, through its Managing Director, SCO No.150-151-152, Sector 34-A, Chandigarh.
(http:punjabcooperation.gov.in/html/Housefed.html).
2. The Superintending Engineer, Punjab State Federation of Cooperative House Building Societies Ltd., Punjab, SCO No.150-151-152, Sector 34-A, Chandigarh. (http:punjabcooperation.gov.in/html/Housefed.html).
........Opposite Parties
2. Consumer Complaint No.134 of 2020 Date of institution : 04.06.2020 Date of decision : 10.06.2020 Chhajju Ram son of Shri Sain Dass, resident of Flat No.1619/A, Category-IV, Cooperative Housing Complex, Sector-79, (Group-II), SAS Nagar, Mohali.
.......Complainant Consumer Complaint No.133 of 2020 2 Versus
1. The Punjab State Federation of Cooperative House Building Societies Ltd. (HOUSEFED, PUNJAB), Punjab, through its Managing Director, SCO No.150-151-152, Sector 34-A, Chandigarh.
(http:punjabcooperation.gov.in/html/Housefed.html).
2. The Superintending Engineer, Punjab State Federation of Cooperative House Building Societies Ltd., Punjab, SCO No.150-151-152, Sector 34-A, Chandigarh. (http:punjabcooperation.gov.in/html/Housefed.html).
........Opposite Parties
3. Consumer Complaint No.135 of 2020 Date of institution : 04.06.2020 Date of decision : 10.06.2020 Mohan Lal son of Late Shri Jagdish Rai, resident of Flat No.1704/B, Category-III, Cooperative Housing Complex, Sector-79, (Group-II), SAS Nagar, Mohali.
.......Complainant Versus
1. The Punjab State Federation of Cooperative House Building Societies Ltd. (HOUSEFED, PUNJAB), Punjab, through its Managing Director, SCO No.150-151-152, Sector 34-A, Chandigarh.
(http:punjabcooperation.gov.in/html/Housefed.html). Consumer Complaint No.133 of 2020 3
2. The Superintending Engineer, Punjab State Federation of Cooperative House Building Societies Ltd., Punjab, SCO No.150-151-152, Sector 34-A, Chandigarh. (http:punjabcooperation.gov.in/html/Housefed.html).
........Opposite Parties
4. Consumer Complaint No.136 of 2020 Date of institution : 04.06.2020 Date of decision : 10.06.2020 Bhagwan Dutt son of Shri Jagat Ram, resident of Flat No.1672/C, Category-IV, Cooperative Housing Complex, Sector-79, (Group-II), SAS Nagar, Mohali.
.......Complainant Versus
1. The Punjab State Federation of Cooperative House Building Societies Ltd. (HOUSEFED, PUNJAB), Punjab, through its Managing Director, SCO No.150-151-152, Sector 34-A, Chandigarh.
(http:punjabcooperation.gov.in/html/Housefed.html).
2. The Superintending Engineer, Punjab State Federation of Cooperative House Building Societies Ltd., Punjab, SCO No.150-151-152, Sector 34-A, Chandigarh. (http:punjabcooperation.gov.in/html/Housefed.html).
........Opposite Parties
5. Consumer Complaint No.137 of 2020 Date of institution : 04.06.2020 Date of decision : 10.06.2020 Consumer Complaint No.133 of 2020 4 Sudesh Rattan wife of Late Shri Shiv Shakti Rattan, resident of Flat No.1630/B, Category-IV, Cooperative Housing Complex, Sector-79, (Group-II), SAS Nagar, Mohali.
.......Complainant Versus
1. The Punjab State Federation of Cooperative House Building Societies Ltd. (HOUSEFED, PUNJAB), Punjab, through its Managing Director, SCO No.150-151-152, Sector 34-A, Chandigarh.
(http:punjabcooperation.gov.in/html/Housefed.html).
2. The Superintending Engineer, Punjab State Federation of Cooperative House Building Societies Ltd., Punjab, SCO No.150-151-152, Sector 34-A, Chandigarh. (http:punjabcooperation.gov.in/html/Housefed.html).
........Opposite Parties Consumer Complaints under Section 17(1)(a)(i) of the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Argued by:-
For the complainant : Shri Naveen Sharma, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
All the above mentioned five Consumer Complaints are being decided by this common order as identical questions of law and facts Consumer Complaint No.133 of 2020 5 are involved in all these complaints and different complaints have been filed by different complainants against the same opposite parties. Facts are being taken from Consumer Complaint No.133 of 2020.
Consumer Complaint No.133 of 2020:
2. The complainant, Mangal Ram, has filed this complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 (in short, "C.P. Act") for issuance of following directions to the opposite parties:-
i) to pay ₹9,72,000/- as interest (@18% per annum on ₹5,40,000/-) on account of the amount received by the opposite parties as instalments/full amount from the dates of receipts till the date of possession;
ii) to refund excess amount charged on account of enhanced cost of the flat;
iii) to pay ₹1,00,000/-, as compensation, for mental agony and harassment;
iv) to pay ₹50,000/- towards litigation expenses; and
v) to grant any other additional or alternative relief, which this Commission may deem fit and proper in the facts and circumstances of the case.
Facts of the complaint:
3. Brief facts as averred in the complaint are to the effect that the complainant had applied for a built up flat under Cooperative Housing Scheme of Category-III in the housing scheme floated by Consumer Complaint No.133 of 2020 6 the Housing Federation Punjab (in short, "Housefed") in the year 2004 known as 'SUPER DELUX FLATS' of five different categories in Sector 79, SAS Nagar, Mohali. The draw of lots for the same was held on 3.3.2004 and the complainant was declared successful. The complainant was allocated a flat in category-III at the tentative cost of ₹9 lakh, vide letter for allocation dated 24.3.2004, Ex.C-2. It is further averred that as per the terms and conditions of the allotment/brochure of the Scheme, the complainant was required to deposit the tentative cost of the flat as per the schedule given, vide allocation letter and opposite parties offered two options for making the said payment of the flat. The first option was (i) registration money of ₹90,000/- by 30.4.2004; and (ii) 60% payment in eight quarterly equated instalments (between 30.6.2004 to 31.3.2006) during the course of construction and the second option was to pay
(i) registration money of ₹90,000/- by 30.4.2004; and (ii) the entire remaining tentative cost of the flat (i.e. ₹7,20,000/-) in full and avail the benefit of 5% on the cost of the flat. The complainant had opted for the first option for the mode of payment for the cost of the flat and paid ₹5,40,000/- i.e. 60% payment of the tentative cost of the flat in eight quarterly equated instalments between 30.6.2004 to 31.3.2006, vide receipts Ex.C-3 (colly). It is further averred that the opposite parties did not even start the construction of the flats in the above mentioned scheme but kept on demanding the instalments from the complainant. Thus, the opposite parties violated the terms and conditions of the said housing scheme and the schedule of Consumer Complaint No.133 of 2020 7 construction as promised by them was never honoured. The very purpose of the above mentioned schedule of payment between 30.6.2004 to 31.3.2006 was to commensurate with the progress of the construction work to be started in the year 2004 and impliedly the possession of the flat was to be delivered in the year 2006 i.e. immediately after the last due instalment on 31.3.2006. The initial cost of the flat was ₹9 lakh and the final cost was illegally enhanced to ₹22,46,000/-. It is further averred that the complainant paid all the instalments as per the schedule of payment mentioned in the brochure of the said Scheme. However, the complainant was allotted Flat No.1726/A, Floor No.II in Category-III in the said Scheme, vide letter dated 15.7.2014. The complainant was intimated to pay the balance payment towards the cost of the flat and to take possession of the flat after completing all the formalities. It is further averred that physical possession of the said flat was delivered to the complainant on 31.10.2014, vide Physical Possession Certificate, Ex.C-6, after a long gap of 10 years. It is further averred that the construction of the flats under the above said Scheme was delayed on very untentable, unreasonable and flimsy ground that the land measuring 3 kanals 2 marlas was under
litigation, which is pending in the Punjab and Haryana High Court at Chandigarh. The said land has still not been allotted for the said purpose. Thus, it is clear that the delay in construction of flats was not on account of dispute over the land measuring 3 kanals and 2 marlas. Had it been the reason, the construction of the flats would Consumer Complaint No.133 of 2020 8 not have been started till today. The very purpose of making payment in 8 quarterly instalments between 30.6.2004 to 31.3.2006 had become meaningless when the construction did not start in the year 2004 but had started in October 2010. The last instalment was paid by the complainant on 23.3.2006 making 60% of the total tentative cost of the flat. Thus, the opposite parties are liable to pay interest and compensation to the complainant for the period of delay in construction and handing over the possession of the flat in question. They are also liable to refund the excess amount charged on account of enhanced price of the flat in question. Alleging deficiency in service and adoption of unfair trade practice on the part of the opposite parties a prayer for issuance of above mentioned directions to them was made.
Evidence of the complainant:
4. In support of his case the complainant annexed with the complaint his own affidavit along with documents i.e. Brochure as Ex.C-1, letter of allocation dated 24.3.2004 as Ex.C-2, Receipts Ex.C-3 (colly), letters dated 18.9.2009 and 15.7.2014 as Ex.C-4 and Ex.C-5 and Physical Possession Certificate as Ex.C-6.
5. I have heard the learned counsel for the complainant at the admission stage of the complaints and have carefully gone through the contents of the complaints and the documents annexed therewith.
Contentions of the complainant:
6. It has been vehemently contended by the learned counsel for the complainant that though the complainant had taken the delivery Consumer Complaint No.133 of 2020 9 of the possession of the flat in question on 31.10.2014, vide Physical Possession Certificate, Ex.C-6 but there was a huge delay of 10 years in constructing the flat and delivering possession thereof. No plausible reason for such a huge delay has been given by the opposite parties and, as such, the opposite parties are liable to pay interest and compensation to the complainant for the delayed period in constructing and delivering the possession of the flat in question.
It has further been contended that the opposite parties had increased the price of the flat manifold without any justification and has sought for refund of the excess amount towards the enhanced price. It has been prayed that there are arguable points in the present complaints and the same may be admitted to be heard on merits.
Consideration of Contentions:
7. I have given my thoughtful consideration to the contentions raised before me by the learned counsel for the complainant.
8. The following questions arise for determination, at the admission stage of the complaint:-
i) Whether the complaint is time barred?
ii) Whether after taking physical possession of the flat, in
question, without raising any kind of protest at that time, the complainant ceased to be 'consumer' of the opposite parties?Consumer Complaint No.133 of 2020 10
Question No.(i):
9. Admittedly the payment of the amount of ₹5,40,000/- i.e. 60% of the tentative cost of the flat was made in eight quarterly equated instalments between 30.6.2004 to 31.3.2006 and the possession of the flat was taken by the complainant on 31.10.2014 after making the payment of the enhanced price of the flat in question and after completing all the formalities without any protest. The present complaint has been filed on 4.6.2020 seeking interest on the amount of ₹5,40,000/- at the rate of 18% per annum for the delayed period and refund of the enhanced price of the flat in question after a period of more than five and a half years. However, the said relief could have been sought by the complainant within two years from
31.10.2014, whereas the complaint has been filed on 4.6.2020 i.e. after limitation period of two years. Therefore, the complaint to the extent of this relief is clearly barred by time. However, Section 24-A of the C.P. Act lays down that the Consumer Fora shall not entertain a complaint, unless it is filed within two years from the date on which the cause of action has arisen. The Hon'ble Supreme Court in State Bank of India v. B.S. Agricultural Industries (I), 2009 CTJ 481 (SC)(CP)=(2009) 5 SCC 121 observed in Para No.8 as under:-
"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 Consumer Complaint No.133 of 2020 11 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."
10. This view of law was further reiterated by the Hon'ble Supreme Court in its judgment reported as "V.N. Shrikhande (Dr.) v. Anita Sena Fernandes" 2011 CTJ 1 (SUPREME COURT) (CP). It was held by the Hon'ble Supreme Court as under:-
"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 do not have the Consumer Complaint No.133 of 2020 12 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. Reference in this connection can usefully be made to the recent judgments in State Bank of India v. B.S. Agricultural Industries (I), 2009 CTJ 481 (SC)(CP)=(2009) 5 SCC 121 and Kandimalla Raghavaiah and Company v. National Insurance Company and another, 2009 CTJ 951 (SC)(CP)=(2009) 7 SCC 768."
11. Still further, Hon'ble Bombay High Court in case State of Maharashtra v. Hindustan Construction Company Anr. Arbitration Appeal No.6 of 2007 decided on 01.02.2013 held in Para No.32 as follows:
"32. In my view, refusal to pay the amount demanded by the petitioner, would not commence fresh period of limitation which had already commenced.Consumer Complaint No.133 of 2020 13
In view of Section 9 of the Limitation Act, 1963, once time is begun to run, no subsequent disability or inability to institute a suit or make an application stops it. Once time starts, it does not stop. Limitation is extended only when there is an acknowledgment of liability or part payment. Correspondence does not extend the period of limitation."
12. Similarly, in United Bank of India vs. Janata Paradise Hotel and Restaurant, IV (2014) CPJ 383 (NC), Hon'ble National Commission observed as under:-
"6..........This argument is devoid of force because correspondence does not extend limitation, particularly, when first request for refund is made after claim became time-barred. In this matter, claim became time barred in the year 1995 and letter has been written on 18.11.2007. Complainant has not placed any letter from 1995 to 2007 and, thus claim being barred by limitation, learned District Forum committed error in allowing complaint."
13. Likewise, in Vandan Pareshkumar Manghita vs. The Divisional Manager, National Insurance Co. Ltd., 2014 (4) CLT. 254, Hon'ble National Commission has also observed that "mere correspondence does not extend limitation and complaint was to be filed within period of 2 years from first intimation". Consumer Complaint No.133 of 2020 14
14. In the present complaint the cause of action accrued to the complainant only on 31.10.2014 at the time of taking over the possession of the flat in question. The complaint having been filed on 4.6.2020 after a gap of more than five and a half years is certainly bared by time. Moreover, the complainant has not moved any application for condoning the delay in filing the complaint explaining sufficient reasons therein for such delay. Therefore, in view of the ratio of the law laid down in the above noted authorities, this complaint is certainly barred by time having been filed after the expiry of two years from the date of accrual of the cause of action and is liable to be dismissed as such.
Question No.(ii):
15. So far as question No.(ii) is concerned, after taking the possession of the flat, in question, complete in all respects, without any protest, the complainant ceased to be 'consumer' of the opposite parties. Reference in this regard may be made to the judgment of Hon'ble National Commission in case T.K.A. Padmanabhan v. Abhiyan CGHS Ltd. 2016 (2) CPJ 273 in which it has been held in Para No.10 as follows:
"10. It is an admitted fact that petitioner had taken the physical possession of the flat on 27.02.2004, though there was delay of 11 months in giving possession on behalf of the respondent. However, the Consumer Complaint was filed on 08.08.2005, that is, about one and half years, after petitioner got possession. There is nothing on record to Consumer Complaint No.133 of 2020 15 show that at the time of taking possession of the flat, petitioner had lodged any protest with regard to delay or took conditional possession. When petitioner had taken the possession of the flat on 27.02.2004, unconditionally and without any protest, thereafter he ceased to be a consumer. The agreement executed between the parties comes to an end. Thus, on the date when Consumer Complaint was filed, there was no privity of contract between the parties. As such, the Consumer Complaint on the face of it is not maintainable."
16. Similarly, in Revision Petition No.3338 of 2007 (Harpal Arya v. Housing Board Haryana, Estate Manager, Housing Board, Sector 6, Panchkula) decided on 04.01.2016, the Hon'ble National Commission held in Para-15 as under:
"15. Thus, from the aforesaid documents, it is manifestly clear that petitioner had executed the Hire Purchase Tenancy Agreement with the respondent and in pursuance thereof, he had also taken possession of house on 27.10.2004. Further, as per possession certificate, it is clear that petitioner had taken the possession without any pre- conditions. Now, after getting the possession, it does not lie in the mouth of the petitioner to state that house is not in a habitable condition. Once petitioner had taken the possession with open eyes and without any pre-conditions, he cease to be a consumer. The Consumer Complaint was Consumer Complaint No.133 of 2020 16 filed on 25.05.2005, that is, after about seven months of taking over of possession of the house. Therefore, on the face of it, the petitioner was not a 'consumer' at the time of filing of the complaint, since there was no privity of contract between the parties. Therefore, complaint is liable to be dismissed on this ground alone."
17. In view of the ratio of aforesaid authorities, the complainant, after taking possession of the flat, without raising any kind of objection, ceased to be a 'consumer' of the opposite parties as defined under Section 2(1)(d) of the C.P. Act; because after taking physical possession of the flat, the agreement between the parties came to an end and thereafter there was no privity of contract between them.
18. Similar is the position in all other consumer complaints bearing Nos.134 to 137 of 2020.
19. In view of my above discussion, I do not find any ground to admit these complaints to be heard on merits and dismiss the same in limine; being barred by limitation and the complainant being not a 'consumer' of the opposite parties.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT June 10, 2020 Bansal Consumer Complaint No.133 of 2020 17