National Consumer Disputes Redressal
Haryana Urban Development Authority vs Dr. Raj Kumar Gupta on 2 January, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI (1) REVISION PETITION NO.4509 OF 2010 (Against order dated 30.08.2010in Appeal No.1151 of 2010 of the State Consumer Disputes Redressal Commission,Haryana, Panchkula) 1. Haryana Urban Development Authority, through its Chief Administrator, Sector-6, Panchkula 2. Estate Officer, Haryana Urban Development Authority, Ambala City ....... Petitioner Versus Dr. Raj Kumar Gupta S/o Lt. Lal Chand Chand Gupta, R/o 792, Sector-7, Ambala City ...... Respondent (2) REVISION PETITION NO. 4510 OF 2010 (Against order dated 30.08.2010 in Appeal No.1152 of 2010 of the State Consumer Disputes Redressal Commission, Haryana, Panchkula) 1. Haryana Urban Development Authority, through its Chief Administrator, Sector-6, Panchkula 2. Estate Officer, Haryana Urban Development Authority, Ambala City ....... Petitioner Versus Pritam Singh Kalra s/o Sh. Mehar Singh, c/o Surjit Singh Kamboj(nazar), Kamboj House, VPO Dhulkot, District Ambala ...... Respondent BEFORE: HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER HONBLE MRS. REKHA GUPTA, MEMBER For the Petitioner : Ms.Anubha Aggarwal, Advocate For the Respondent : Mr. R. D. Bedi, Advocate Pronounced on: 2nd December, 2013 ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER Petitioners/ Opposite Parties being aggrieved by the order dated 30.08.2010 passed by the State Consumer Disputes Redressal Commission, Haryana, Panchkula in (First Appeals No.1151 and 1152 of 2010) has filed the above noted revision petitions.
2. Since, facts in above noted revision petitions are common and same question of law is involved as such these revision petitions are being disposed of by this common order.
3. As per facts enumerated in (R.P.No.4509 of 2010), the facts of the case of the Respondent/Complainant he has purchased a plot No.792 Sector-7,Ambala City was originally allotted to Mrs. Nancy Chopra vide memo No. 1446 dated 4.5.1979 measuring 300 sq. mtrs and thereafter, the said plot was reallotted to the complainant vide memo No.11683 dated 9.5.1989. After clearance of all the dues, the conveyance deed was executed on 29.9.92 and so, the complainant stepped into the foot-steps of original allottee for all purposes. Since the complainant wanted to get the account/ payment, if any, due against the house in question settled for all times, so he approached the OP a number of times to supply him the detail of the account paid by the complainant against the house in question and the rate of interest charged thereon and to furnish the yearwise statements of account from the date of allotment till date so that the complainant can ascertain the correctness of the amount paid by the complainant and may check the accuracy of the amount but the OP miserably failed to concede the genuine request of the complainant. It is further the case of the complainant that on 19.1.1993, the Estate Officer demanded Rs.2,732/- which the complainant paid on 26.5.1993. Notice for additional price was issued on 24.8.1994 and it was stated therein that if the amount is not paid within the stipulated period then the allottee will pay interest for the period of default at the rate of 15% per annum. The complainant made an application to the OP on 13.10.2008 for issuing him the details on which it was informed that the complainant is still to pay Rs.187965/- as an additional price of the house in question but with regard to rate of interest, it was verb ally told that compound rate of interest has been calculated. Thus, under compelling circumstances, the complainant paid Rs. 45,000/- on 13.10.08, Rs.40,000/- on 15.10.2008, Rs.32,000/- on 16.10.08, Rs. 38,000/- on 17.10.08, totalling Rs. 1,55,000/-. The complainant got served a legal notice dated 26.3.2009 for recalculation of his account with regard to the house in question on the basis of simple interest and to return the excess amount if any, to the complainant but in vain. Hence, this complaint.
14. Upon notice, the OP appeared and filed written statement wherein it was asserted that the complainant committed a complete default by not making timely payment of enhanced price and other dues due to which interest was charged upon him. It was also pleaded that the complainant is not a consumer being re-allottee. The complainant failed to pay the enhanced price for a long period due to which interest as per rules of HUDA was levied upon him and he is liable to pay whole of the amount. It is also averred that the complainant has not paid Rs.2,732/- and he must prove the deposit of this amount. An amount of Rs. 53,925/- was demanded from the complainant vide letter dated 24.8.1994 which was not paid within time and so, the rate of interest mentioned in that letter was charged upon him. Further, an amount of Rs. 187965/- became due on this plot upto 13.10.2008 and thereafter, the amount shall continue to increase till the time it is paid in total as the complainant himself claimed to have paid only Rs.1,55,000/- out of this amount upto 17.10.2008. Interest on the enhanced price has been charged strictly as per the rules, regulations and instructions and policy of HUDA. It was also averred that the complaint is hopelessly time barred
4. District Consumer Disputes Redressal Forum, Ambala (for short, District Forum),vide its order dated 11.6.2010 has allowed the (Complaint No.140 of 2009)and also vide order dated 18.6.2010 allowed the (Complaint No.269 of 2009) respectively and passed the following directions in (Complaint Case No.140 of 2009);
We are of the confirmed opinion that it is a clear cut case of deficiency in service on the part of OP by not making clear whether any compound interest has been demanded on the delayed payment or not. Nor any calculation has been attached alongwith the written statement or produced at the time of evidence. Hence, the present complaint is hereby accepted and the OP is directed to comply with the following directions within a period of 30 days from the date of receipt of copy of this order:-
a) to withdraw the impugned demand raised vide letter dated 13.10.2008;
b) to raise the demand afresh after recalculating the amount of enhanced land price applying the simple interest at the rate of 15% per annum and adjusting the amount of Rs.1,55,000/-
already paid by the complainant. In case any excess amount is found deposited by the complainant, the same be refunded to him.
c) Also to pay Rs.3,000/- as compensation for harassment and litigation expenses.
5. Aggrieved by the order of the District Forum, petitioner filed appeals before the State Commission which were dismissed in limine by the State Commission vide its impugned order.
6. Hence, the present revision petitions.
7. The main ground on which the order of both the Fora have been assailed is that in their written statements, petitioner took the specific plea that the complaint has not been filed within the period of limitation as the plot in question was allowed in 1979 and re-allotted in 1989 whereas, the complaint has been filed in 2009, so under the circumstances, order passed by the Fora below are not legally sustainable.
8. On the other hand, it has been contended by the learned counsel for the respondent that respondent had issued a legal notice to the petitioners in the year 2008 and the complainant thus, was filed within a period of limitation. The learned counsel for the respondent has relied upon the following judgments;
(i) Delhi Financial Corporation v. B.B. Behl, the Punjab Law Reporter, Vol.CXXII-(1999-2);
(ii) State Bank of India, Bhubaneswar v. Ganajam District Tractors Owners Association and others,Punjab Law Reporter, Vol. CVIII(1994-3);
(iii) Gian Inder Sharma v. Haryana Urban Development Authority and others, 2002(2) PLJ;
(iv) Estate Officer, HUDA, Ambala Vs. Gurdial Singh, decided on 3rd Feb.,2005 by this Commission
(v) H.U.D.A. v. Raj Singh Rana, 2009(1) RCR (Civil) and
(vi) H.U.D.A and another v. Sushil Kumar Nandal, 2011(1) CPC.
9. The only legal issue which arises for consideration in the present case is as to whether the complaint filed by the respondent/complainant before the District Forum within the limitation period or the same is barred by limitation.
10. Petitioner in its written statement filed before the District Forum has specifically raised an objection that the case is highly time barred. It appears that both the fora below have over looked the basic provision of Section 24A of the Consumer Protection Act, 1986 while deciding the complaint as well as appeal.
11. As per the admitted case of the parties, both the respondents are allottee and conveyance deed was executed in favour of respondent (RP No.4509 of 2010) whereas, in (RP No.4510 of 2010, the complainant was allowed the plot on 24.9.1974 and on 28.9.2002, he requested the petitioner to intimate the outstanding dues. In response, the complaint filed before the District Forum, petitioner took the plea that the answering respondent has concealed the material facts from the Forum by not disclosing the receipt of notice dated 17.8.1994 issued to him for the payment of dues pending against him as an enhancement and the respondent utterly failed to make payment and remained in default till date.
12. Section 24-A of the Consumer Protection Act, 1986, deals with this situation which 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 National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.
13. 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.
14. 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 vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, as under:-
12.
Recently, in State Bank of India Vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, this Court, while dealing with the same provision, has 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.
15. In para No.13, it has been held by the Honble Supreme Court that;
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 as 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.
16. Now coming to the plea of learned counsel for the appellant that cause of action will arise from the date of service of the legal notice dated 6.2.2008. This plea is of no help to the appellant. It is well settled that by serving the legal notice or by making representation, the period of limitation cannot be extended by the appellant. In this context, reference can be made to Kandimalla Raghavaiah & Co. (supra), in which 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.
17. Accordingly, it is manifestly clear that both the complaints filed by the respondents before the District Forum were hopelessly barred by limitaiton and no application for delay was filed on behalf of the respondent. Under these circumstances, order passed by both the fora below cannot be sustained and same are liable to be set aside. Consequently, we allow the revision petition and dismissed the complaint filed before the District Forum.
J (V.B. GUPTA) (PRESIDING MEMBER) (REKHA GUPTA) MEMBER SSB/st,