National Consumer Disputes Redressal
Bankim Mandal, vs 1. The Chief Administrator on 21 February, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.3790 OF 2011 alongwith I.A. No. 01 of 2011 (For Stay) (Against the order dated 20.9.2011 in Appeal No.968/2005 of the State Commission, Haryana, Panchkula) Bankim Mandal, S/o Shri Ranjit Kumar, Through GPA Vijay Dogra, R/o 1181/04, UE, Gurgaon, Haryana. .Petitioner Vs. 1. The Chief Administrator Haryana Urban Development Authority Sector-6, Panchkula, Haryana, 2. The Estate Officer, Haryana Urban Development Authority, Gurgaon, Haryana. .Respondents BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER For the Petitioner : Mr. Akshat Goel, Advocate Pronounced on: 21st February, 2012 ORDER
PER MR.
JUSTICE V..B. GUPTA, PRESIDING MEMBER Present revision petition has been filed by the petitioner challenging order dated 20.9.2011, passed by State Consumer Disputes Redressal Commission, Panchkula, Haryana (for short State Commission).
Vide impugned order, State Commission has allowed the appeal filed by the respondents/opposite parties and has set aside the order dated 18.2.2005 passed by the District Consumer Disputes Redressal Forum, Gurgaon (for short District Forum)
2. Brief facts are that petitioner (complainant in the District Forum) was allotted plot bearing No.328, measuring 299 sq. yards vide allotment letter no.1484 dt. 14.11.1994, in Sector-10, Urban Estate, Gurgaon. The petitioner had paid 8 instalments upto 28.12.1998 towards the cost of the said plot in addition to 10% earnest money, in all more than R.4,00,000/-. During the four years, the respondents failed to provide even basic civic amenities. The respondents demanded Rs.2,05,264.70 vide memo No.5682 dt.12.04.1999 alongwith interest. Petitioner requested for withdrawal of illegal demands. However, petitioner was informed that notices were issued to him, but he did not appear for personal hearing and as such plot stood resumed and 10% of the total consideration was forfeited under Section 17(4) of HUDA Act. When the development work was found complete, the petitioner approached the respondents to restore the plot and receive the balance consideration but all in vain. Thus, alleging it a case of deficiency of service and unfair trade practice, petitioner invoked the jurisdiction of the District Forum.
3. Respondents resisted the claim of the petitioner. It was stated in the written statement that an amount of Rs.1,61,950/- was over due.
Respondents case is that several notices were issued to the petitioner but he, neither deposited the over due amount nor appeared before the Estate Officer for personal hearing despite notices. The balance amount of Rs.1,59,200/- was refunded to be allottee vide cheque no.820118 dt.
27.6.2002. Denying any kind of deficiency in service and unfair trade practice, the respondents prayed that complainant be dismissed.
4. On appraisal of the pleadings of the parties and evidence adduced on record, the District Forum accepted the complaint.
5. Aggrieved by the order of District Forum, respondents filed an appeal before the State Commission. The State Commission allowed the appeal and dismissed the complaint on the ground that the complaint is not maintainable as per Section 24A of Consumer Protection Act, 1986 (for short as the Act), according to which the complaint was to be filed within two years from the date of cause of action.
6. It is contended by learned counsel for the petitioner that petitioner has deposited a huge sum of Rs.4 lac. The date of allotment is of Nov, 1994 and the resumption order was issued in 2002. Moreover, huge amount remained with the respondent for about eight years.
7. Further, it is contended that since money was refunded by the respondents in 2002, the mere encashment of the cheque by the petitioner would not amount to waiver of the legal right available to him under the law. It is settled law that all actions are subject to just legal exceptions and hence the refunding of the money of the petitioner by the respondents after eight long years will not absolve the respondents of their liability and duty under the law. Hence, petitioner has every right to initiate proper proceedings against the respondents.
8. State Commission in its impugned order has observed;
At the very outset the question for consideration before this Commission is as to whether the complaint filed by the complainant before the District Forum was within limitation for seeking relief under the Consumer Protection Act.
It is not disputed that plot was resumed on 20.5.2002 and HUDA refunded the amount payable through cheque, which was encashed on 27.6.2002, while the complaint was filed on 7.10.21004. Besides the fact that the complaint was filed after more than two years from encashment of cheque, neither the delay in filing complaint has been explained, nor there was any request for condonation of delay. Therefore, delay cannot be condoned in routine by the courts without there being any request. The complaint was filed after about two years and four months and thus the complaint was not maintainable as prescribed under Section 24A of the Consumer Protection Act, 1986 according to which complaint was to be filed within 2 years from the date of cause of action.
Reference may be made to case law cited as V.N. Shrikhande (Dr.) versus Anita Sena Fernandes 2011 CTJ 1 (Suprme Court) CP) wherein the 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 do 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 present case is fully covered by V.N. Shrikhande (Dr.) Vesus Anita Sena Fernandes (Supra) and as such the complaint filed by the complainant deserves to be dismissed.
The District Forum passed the impugned order by ignoring all these aspects and as such the impugned order being an illegal one cannot be sustained.
For the reasons recorded above, this appeal is accepted, the impugned order is set aside and the complaint is dismissed.
9. In the entire complaint filed by the petitioner before the District Forum, petitioner has no where stated as to when the cause of action arose. The plot in question was resumed on 20.5.2002 and respondents have refunded the amount through cheque which was encashed by the petitioner on 27.6.2002, whereas the complaint was filed on 7.10.2004.
The delay in filing the complaint has not been explained, nor there was any request for condonation of delay.
10. Honble Apex Court in case of Kandimalla Raghavaiah & Co. versus National Insurance Co. Ltd. and another, 2009 CTJ 951 (Supreme Court) (CP) took view of the observations made in case State Bank of India v. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) =JT 2009(4) SC 191, 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 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 para No.13 it has been held by the Honble Supreme Court The term cause of action is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of wide 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 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. 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.
11. The observation made out by Honble Supreme Court in the authoritative pronouncement as above are fully attracted to the facts and circumstances of the present case.
12. It is not the case of the petitioner that he had filed any application for condonation of delay in filing of the complaint before the District Forum.
13. Since, the complaint of the petitioner before the District Forum was barred by limitation, the State Commission rightly dismissed the complaint.
14. The present revision petition which is having no merit and is without any legal basis, is hereby dismissed with costs of Rs.10,000/- (Rupees Ten Thousand only).
15. Petitioner is directed to deposit the costs of Rs.10,000/- (Rupees Ten Thousand Only) by way of a cross cheque in the name of Consumer Legal Aid Account within four weeks from today.
16. In case, costs are not deposited within the prescribed period, then petitioner shall be liable to pay interest @ 9% p.a., till realization.
17. Pending application stands disposed of.
18. List on 13th April, 2012 for compliance.
...J (V.B. GUPTA) (PRESIDING MEMBER) Sg.