State Consumer Disputes Redressal Commission
Madhu Kaushal And Another vs Omax Constructions And Others on 4 August, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.
Misc. Application No.826 of 2010
In/and
Consumer Complaint No.32 of 2010
Date of institution: 07.04.2010
Date of decision : 04.08.2011
1. Smt.Madhu Kaushal w/o Sh.Vipin Kaushal;
2. Smt.Neelam Kaushal w/o Sh.Pawan Kaushal;
Both residents of House No.2160, Sector 15-C, Chandigarh.
.....Complainants
Versus
1. OMAXE Constructions Ltd., Sector 8, Madhya Marg, Chandigarh through
its Branch Head/Principal Officer.
2. The Principal Officer, OMAXE Constructions, OMAX House, 7, Local
Shopping Centre, Kalkaji, New Delhi - 110 019.
3. OMAXE Plaza, Site at Ferozepur Road, Opp. Mini Secretariat, Tehsil and
District Ludhiana (Punjab) through its Manager.
.....Respondents
Complaint under the provisions of the Consumer
Protection Act, 1986.
Before:-
Hon'ble Mr.Justice S.N.Aggarwal, President
Mrs.Amarpreet Sharma, Member
Present:-
For the complainants : Sh.Alok Jagga, Advocate For the respondents : Sh.Munish Gupta, Advocate JUSTICE S.N.AGGARWAL, PRESIDENT This order will dispose of two complaints i.e. Consumer Complaint No.32 of 2010 (Smt.Madhu Kaushal and another v. Omaxe Constructions Limited and others) and Consumer Complaint No.33 of 2010 (Sh.Pawan Kaushal v. Omaxe Constructions Limited and others) as the facts in both these complaints are identical. The facts are taken from CC No.32 of 2010 and the parties would be referred by their status in this complaint. Consumer Complaint No.32 of 2010 2
2. The facts in brief are that the complainants had booked the commercial space measuring 969.23 square feet of Shop GF No.3 in Omaxe Plaza, Ludhiana sponsored by the respondents. The complainants had alleged that they were interested in purchasing this commercial space in order to set up their own business for earning their livelihood and for supporting their family. The complainants had deposited an amount of Rs.13,08,461/- on 13.02.2006 and the subsequent instalment of Rs.13,08,460/- on 25.05.2006 (Ex.C5). The respondents cancelled the plot and forfeited the initial deposit of Rs.13,08,461/- deposited on 13.02.2006. Hence, the complaint challenging the said forfeiture and for the refund of the total amount of Rs.26,16,920/-. Compensation, interests and costs were also prayed.
M.A. No.826 of 2010 (Application for Condonation of Delay)
3. This complaint was filed by the complainants on 7.4.2010 against the order dated 23.7.2007 and also against the order dated 17.3.2008 after the delay of 260 days and 20 days respectively. Hence, this application was filed for condonation of delay.
4. It was pleaded in the application for condonation of delay that the letter dated 23.7.2007 was received by the complainants on 30.9.2007 for the reason that the letter was sent by the respondents at the address of House No.372, Sector 15, Chandigarh but this house was already sold by the complainants on 20.4.2006 and they had shifted to house No.2160, Sector 15-C, Chandigarh. Therefore, it caused some delay in the receipt of letter dated 23.7.2007. It was also pleaded that the respondents had sent the second impugned order dated 17.3.2008 again at the old address and it was received by the complainants on 25.5.2008.
5. It was submitted that although the limitation for filing of the complaint was 2 years as per the provisions of Section 24A of the Consumer Protection Act (in short "the Act") but the Fora under the Act had the right and jurisdiction to condone the delay. Hence, it was prayed that the application be accepted and the delay of 260 days against the order dated 23.7.2007 be condoned. Consumer Complaint No.32 of 2010 3 Similarly, the delay of 20 days against the impugned order dated 17.3.2008 be also condoned.
6. This application is supported by the joint affidavit of the complainants.
7. The respondents have filed the reply to this application by way of affidavit of Harsh Bhargav, authorised representative of the respondents. It was pleaded that the application for condonation of delay has been filed with malafide intention. It was denied if any changed address was given by the complainants to the respondents. It was pleaded that the order dated 23.7.2007 and 17.3.2008 passed by the respondents were legal and in consonance with the terms of the agreement between the parties. It was denied if the order dated 23.7.2007 was received by the complainants on 30.9.2007. Even after the receipt of this letter, the respondents. It means that they remained silent and were satisfied. It was denied for want of knowledge if the complainants had changed their residential address. It was also denied if the complainants had ever approached the respondents after the receipt of the impugned order dated 23.7.2007.
8. It was also denied if the letter dated 17.3.2008 was received by the complainants on 25.5.2008. It was pleaded that even if the letter dated 23.7.2007 was received by the complainants on 30.9.2007, the complaint could have been filed only upto 23.7.2009 or at the most upto 30.9.2009 while in fact it has been filed on 7.4.2010. It was denied if the complainants had sent representations dated 2.5.2007, 5.11.2007 or 14.1.2008. It was denied if the delay was liable to be condoned. Hence, it was prayed that the application for condonation of delay be dismissed.
9. The learned counsel for the complainants relied upon the judgment of the Hon'ble Supreme Court reported as "State of Nagaland v. Lipok AO & Ors. 2005 AIR (SC) 2191". In the said judgment, the State of Nagaland was the appellant and the grant of leave to file an appeal against the Judgment of the Hon'ble Single Judge was dismissed by the Hon'ble Gauhati High Court, Kohima Consumer Complaint No.32 of 2010 4 Bench and the question of condonation of delay in that case was being considered by the Hon'ble Supreme Court. Therefore, the facts of that case were entirely different and that judgment was not applicable to the facts of this case.
10. The learned counsel for the complainants also relied upon the judgment of the Hon'ble Supreme Court reported as "National Securities Dipository Ltd. v. Vimal Mittal & Ors., 2005 (13) SCC 97". This judgment was under the Consumer Protection Act and the Hon'ble Supreme Court was pleased to condone the delay of 358 days in filing the appeal before the Hon'ble National Commission.
11. In the facts of the present case, a copy of the order dated 23.7.2007 passed by the respondents has been placed on the file by the complainants as Annexure C11. It reads as under : -
"Sub : CANCELLATION OF SHOP NO.03, GROUND FLOOR, "OMAXE PLAZA" AT LUDHIANA FEROZEPUR ROAD, OPP.
SECRETARIAT, LUDHIANA, PUNJAB.
Dear Sir, You had been allotted a Shop No.03, Ground Floor, in our "Omaxe Plaza" Project against your application dated 07/01/06 you had made the payment of Rs.26,16,921/- (Rupees Twenty Six Lac Sixteen Thousand Nine Hundred Twenty One Only) against your booking and opted for the Construction Linked Payment Plan, as per the payment schedule of the Company. You had also agreed to abide by the terms of allotment.
We regret that despite our repeated requests, telephonically as well as in writing, for payment of outstanding amount we have not received any sum Consumer Complaint No.32 of 2010 5 towards the remittance of your outstanding as per terms of allotment.
You are aware that you have not complied with any of our commitments thereby causing immense financial losses to our company. Amounting to Rs.3925381.50/- (Rupees Thirty Nine Lac Twenty Five Thousand Three Hundred Eighty One and Paise Fifty Only) and interest of Rs.4,21,575.22 (Rupees Four Lac Twenty One Thousand Five Hundred Seventy Five and Paisa Twenty Two Only) is also due on the aforementioned instalments.
In the light of the above, your allotment of Shop No.03, Ground Floor, has been cancelled due to your persistent default in payments and 10% amount i.e. Rs.13,08,461/- (Rupees Thirteen Lac Eight Thousand Four Hundred Sixty8 One Only) paid by you towards the booking stands forfeited due to the resultant losses to the Company as aforesaid and which is in accordance with the terms of the allotment letter you had agreed to abide by you have, thus, lost all your lien, right or claim on the said Shop No.3, Ground Floor, and we are free to deal with the said Shop in any manner we like."
12. The complainants had made representations allegedly against this letter vide letter dated 5.11.2007 Annexure C-12 alleging that this letter was received by them on 30.9.2007. Therefore, if that representation was not accepted by the respondents, the complaint could have been filed by the complainants within a period of 2 years i.e. upto 23.7.2009 as the commercial space allotted to the complainants bearing Shop No.03, Ground Floor in Omaxe Plaza was cancelled and the amount of Rs.13,08,461/- was forfeited. That was the date when Consumer Complaint No.32 of 2010 6 the cause of action had arisen to the complainants. The representation made by the complainants on 5.11.2007 (Annexure C-12) was not replied by the respondents and then they had sent another representation dated 14.1.2008 (Annexure C-13). It means, therefore, that by that date, the representation dated 5.11.2007 (Annexure C-12) was not considered or accepted by the respondents, even the cause of action had arisen to the complainants on that date. The respondents again wrote letter dated 17.3.2008 to the complainants. It is to the following effect : -
"This bears reference to the captioned subject, wherein your allotment rights over Shop No.03 in Ground Floor were cancelled by the Company vide letter dated 23 JULY, 2007, on account of your continuous failure to adhere to the terms of allotment.
We have already requested you on various
occasions telephonically and vide several
letters/reminders dated 11.12.2006, 02.02.2007,
22.02.2007, 09.03.2007, 24.03.2007, 12.04.2007 & Final Reminder letter dated 03.05.2007, 22.06.2007 to pay the due amount towards the sale consideration of the said plot. Despite of our aforesaid requests and reminders, you have utterly failed to pay the due amount and therefore we were reluctantly forced to cancel your allotment rights of the said plot vide Letter bearing no.OL/COMM/OPL/35 dated 23 JULY, 2007. Upon cancellation you lost all right and interest over the said plot and the Company is free to deal with the said Shop at its discretion.
Further, as per the terms of allotment an amount of Rs.13,08,461.00 (Rupees Thirteen Lac Eight Thousand Four Hundred Sixty One only) is forfeited on Consumer Complaint No.32 of 2010 7 account of administrative charges towards cancellation of the said shop and balance amount of Rs.13,08,460.00 (Rupees Thirteen Lac Eight Thousand Four Hundred Sixty Only) is payable to you, which can be collected from our office upon compliance of necessary formalities by yourself."
13. Letter dated 17.3.2008 made clear to them that the order dated 23.7.2007 was final and, therefore, the complaint could have been filed within 2 years from that date i.e. from 23.7.2007. No reasons have been given by the complainants why the complaint could not have been filed within a period of 2 years from 23.7.2007 particularly when the respondents were not considering their representations. Therefore, the cause of action had arisen to the complainants by the passing of the order dated 23.7.2007.
14. Section 24A of the Consumer Protection Act came to be considered by the Hon'ble Supreme Court in the judgment reported as "State Bank of India v. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191". It was held by the Hon'ble Supreme Court 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 Complaint No.32 of 2010 8 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. This view of law was reiterated by the Hon'ble Supreme Court in its latest 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 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 Consumer Complaint No.32 of 2010 9 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."
16. Even the representations filed by the complainants do not extend the limitation. It was held by the Hon'ble Supreme Court in the judgement reported as "Kandimalla Raghavaiah & Co. Versus National Insurance Co. Ltd. and another 2009 CTJ 951 (Supreme Court) (CP)" as under : -
"By no stretch of imagination, it can be said that Insurance Company's 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. Therefore, the delay in filing the complaint against the order dated 23.7.2007 has not been explained properly. Therefore, in view of the factual and legal position discussed above, the application for condonation of delay is dismissed.
Consumer Complaint No.32 of 2010 10Main Case:
18. Since the application for condonation of delay is dismissed, the complaint also stands dismissed as barred by limitation.
CONSUMER COMPLAINT NO.33 OF 2010
19. In view of the reasons recorded above, this complaint is also dismissed being barred by limitation.
20. The arguments in both these complaints were heard on 22.7.2011 and the order was reserved. Now the order be communicated to the parties.
21. The complaints could not be decided within the statutory period due to heavy pendency of Court cases.
(JUSTICE S.N.AGGARWAL)
PRESIDENT
(AMARPREET SHARMA)
MEMBER
August 04, 2011.
Paritosh