National Consumer Disputes Redressal
1. Surya Estates & Anr. vs 1. Venkateshwara Sarma & Ors. on 22 April, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 4255 OF 2010 (Against the order dated 30.07.2010 in Appeal No.242/2008 of the State Commission, A.P.) 1. Surya Estates Construction Firm, Represented by K.Surya Prakash H.No.12-7-233, Mettuguda, Secunderabad, Andhra Pradesh 2. K.Surya Prakash S/o Kishanlal Managing Director, M/s Surya Estate Age : Years, Occ.: Business H.No.12-7-233, Mettuguda, Secunderabad, Andhra Pradesh ....... Petitioners Versus 1. Venkateshwara Sarma S/o Punnaiah Sastry Age : 67 years, Occ. : Retd. Employee, R/o Flat No.G-1, Plot No.11-2-127, Surya Residency Mylargadda, Secunderabad Andhra Pradesh 2. Smt. Praveena D/o Y. Ramaswamy Age : 37 years, Occ. : Employee, R/o Flat No.G-2, Plot No.11-2-127, Surya Residency Mylargadda, Secunderabad Andhra Pradesh 3. Smt. Jaitunnisa W/o Mirza Yousuf Baig Age : 57 years, Occ. : House Wife R/o Flat No.101 Plot No.11-2-127, Surya Residency Mylargadda, Secunderabad Andhra Pradesh 4. Ch. V.Shivasankaram S/o Ch. V.Sastry Age : 37 years, Occ. : Employee, R/o Flat No.102 Plot No.11-2-127, Surya Residency Mylargadda, Secunderabad, Andhra Pradesh 5. G.S.S.A. Rama Rao S/o G.S.R. Murthy Age : 52 years, Occ. : Employee, R/o Flat No.201 Plot No.11-2-127, Surya Residency Mylargadda, Secunderabad, Andhra Pradesh 6. Smt. Suman Pillai W/o NRK Pillai Age : 29 years, R/o Flat No.202 Plot No.11-2-127, Surya Residency Mylargadda, Secunderabad, Andhra Pradesh ... Respondents BEFORE: HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA, MEMBER For the Petitioner : Mr. Kailash Pandey, Advocate with Mr. Ranjeet Singh, Advocate For the Respondent : Mr. Y.V.S.S. Sharma, Advocate with Mr. P.Prabhakar, Advocate for R-1 to 6 Pronounced on : 22nd April, 2013 ORDER
PER MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER Being aggrieved by order dated 30.7.2010, passed by Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (short, State Commission) petitioners/opposite parties have filed present revision petition.
2. Brief facts as per complaint are that respondents/complainants are owners of respective flats in Surya Residency Apartment, Mylargadda, Secunderabad.
The said apartments were constructed by petitioner no.1/opposite party no.1, represented by petitioner no.2/opposite party no.2, its Managing Director. Petitioner no.2 entered into agreements for sale of flats with respondents in July, 2002. Flats were handed over, vide registered sale deeds in the year 2003, with some unfinished works and promised to complete the unfinished works within one or two months. Respondents made personal visits to the office of the petitioners and requested them to complete the works which were left unfinished. However, there was no response from the petitioners. It is stated that following are the unfinished works and defects which were not rectified by the petitioners :-
1. Flooring of stilt area (Parking area) at ground floor is not properly done which is left unfinished, the cellar floor unfinished without plastering.
2. Electrical works i.e. earthing is not properly done.
3. Electrical wiring on ground floor and also other floors are not properly done.
4. Electrical meter/meter boards are fixed to old boards which are not replaced with new ones.
5. Watchman room and his accommodation is not provided.
6. Manholes are not properly covered with iron safes.
7. Leakages from ceiling at IInd floor and other floors are not rectified which causes dampness to the rooms.
8. Safety guards or safety measures are not taken to cover electric meters.
9. Ladder is not provided for the overhead tank.
10.
Roof over the staircase to stop the flowing of rain water is not provided.
11. Name Boards of flat owners and the name boards of the Apartment is not provided.
12. Parking areas are not marked and parking space was not provided to the flat owners who purchased car parking though the amount of car parking was collected by the builder/opposite party no.2 from the flat owners.
13. Existing borewell work i.e. to dig more depth in getting ground water which was left to the fate of the complainants and the same was not done by the opposite parties in spite of several repeated requests, neither the new bore well is provided nor the old motors are replaced with new motors.
3. It is further alleged that Petitioner no.2 did not take any permission from Water Works Sewerage Department for regularizing the water connection to the said flats. Due to the threat of immediate disconnection of water supply from the Water Works Department, respondents were forced to pay Rs.1,70,000/- for regularizing the water connection. It is also alleged that though possession of flats was delivered to the respondents in the year 2003, petitioners executed a separate document for re-allotment of car parking space to the fifth respondent on 28.3.2005, leaving rest of the work unfinished from that date onwards. Respondents also got issued a legal notice dated 23.11.2005. Alleging deficiency in service, respondents approached District Consumer Disputes Redressal Forum-I, Hyderabad (For short, District Forum) to direct the petitioners for following works to be done :
a. To direct the petitioners rectify the defects in the construction of flats owned by the respondents and order to complete the unfinished works within a stipulated time.
b. To direct the petitioner no.2 to pay compensation of Rs.1 lakh for mental agony, damages and hardship suffered by the complainants.
c. To award costs in favour of the respondents. d. To
direct the petitioner no.2 duly take steps for regularization of water connection for the flats owned by the respondents with Water Works Department.
4. Petitioners filed their counter denying most of the allegations made in the complaint. They have stated that as per agreement, respondents have to pay the amounts for providing electrical meters. Since, respondents have not paid the amount, petitioners with their own amount provided electrical meters. It is stated that there is no agreement to provide safeguards to cover the electrical boards. Petitioners have also alleged that they have allotted the parking areas to those who had purchased and paid the amount. It also states that at the time of handing over the possession, there was sufficient water in the bore well and availability of groundwater depends upon rains and many other factors which are not in their control. The complaint filed by the respondents is barred by limitation, as respondents entered into agreement with the petitioners in the year 2002 and sale deeds were executed in February, 2003. Thus, limitation for filing the complaint ends by February, 2005. There is no deficiency in service on their behalf and complaint merits dismissal with exemplary costs.
5. District Forum, vide order dated 3.1.2008, dismissed the complaint.
6. Being aggrieved, respondents filed appeal. The State Commission partly allowed the same, vide its impugned order.
7. Hence, the present revision.
8. We have heard the learned counsel for the parties and gone through the record.
9. Short question which arise for consideration is as to whether complaint filed before the District Forum was within the period of limitation or not. As apparent from record, the complaint was filed in the year 2006. Plea with regard to the cause of action as averred in the complaint is reproduced as under ;
Cause of action arose when the opposite party No.2 entered into an Agreement for the development of the Apartment of sale of flats with the complainants on July, 2002 and other subsequent dates and the opposite party No.2 executed Sale Deeds in favour of the complainants in the year 2003 and when the opposite party no.2 entered into an Agreement with the complainants No.5 on 28.3.2005, and when the complainants got issued a legal notice to opposite party No.1 & 2, and on 7.12.2005, the opposite party no.2 issued a reply notice, the cause of action arose at Hyderabad.
11. District Forum in this regard in its order observed ;
According to the complainants the opp. Party no.2 entered into an agreement for sale of flat with the complainants in the month of July, 2002 and handed over the flats possession to the complainants under registered sale deed in the year 2003. When admittedly, the complainants agreed that they have taken the possession of flats in 2003 what stopped them not to file the complaint here before the Forum immediately.
The cause of action start from the date of the possession and the limitation is two years from the date of taking of the possession. Complainants filed this complaint in the year 2006. Without filing sec. 24-A petition for the condonation of the delay.
It further held ;
In this case also complainants have not filed Sec.24-A, petition Consumer Protection Act for the condonation of delay. If the complainants filed Section 24-A petition then this Forum may condone the delay and may be given an order on sympathetical grounds. But the complainants have not taken any steps for filing of Sec.24-A petition. When there are any defects in the construction of the flats it is the mandatory duty on the part of the complainants to raise the same within two years from the date of taking of possession of the flats.
What happened to the complaints in not raising any disputes regarding the construction work within two years after taking the possession of the flats is not known. Ex.A12 which is the allotment for car parking space is favour of complainant no.5, if the car parking space is not allotted to the complainant no.5 then he has every right to file complaint regarding car parking space construction. The flat is different from the car parking space. So, the averments of the complaint in paragraph no.7 regarding the defects of the flats are not allowed up to point no.11 After perusing the Advocate Commissioners report the learned advocate Commissioner clearly stated that there is no markings for car parking on the stilt area. But the complainants have not prayed about the car parking space in the prayer.
12. It is well settled principle of law that any relief can be claimed under the Consumer Protection Act, 1986 (for short as Act), within two years from the date on which the cause of action accrues.
13. Section 24-A of the Act 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.
14. 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.
15. 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:-
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.
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 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. The Apex Court in State Bank of India v. B.S. Agricultural Industries, II (2009) CPJ 29 (SC) SLT 793 = (2009) 5 SSC 121, held as under ;
12. 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 24-A and give effect to it. If the complaint is barred by time and yet the Consumer Forum decided 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.
17. On the point of recurring cause of action reference may be made to the observation made by the Honble Supreme Court in Raja Ram Maize Products etc. Vs. Industrial Court of M.P. and Other, AIR 2001 SUPREME COURT 1676, wherein it has been held ;
10. The concept of recurring cause of action arising in a matter of this nature is difficult to comprehend. In Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, AIR 1959 S.C. 798 it was noticed that a cause of action which is complete cannot be recurring cause of action as in the present case. When the workers demanded that they should be allowed to resume work and they were not allowed to resume work, the cause of action was complete. In such a case the workers going on demanding each day to resume work would not arise at all. The question of demanding to allow to do work even on refusal does not stand to reason.
18. It is well settled that by serving the legal notice or by making representation, the period of limitation cannot be extended by the petitioner. 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.
19. Thus, on the face of it complaint filed before the District Forum was barred by limitation and no application for condonation of delay had been filed on behalf of the respondents. Under these circumstances, State Commission has committed grave irregularity in setting aside the well-reasoned order passed by the District Forum. Accordingly, we allow the present revision petition and set aside the order passed by the State Commission and restore the order of the District Forum. Consequently, the complaint of the respondents filed before the District Forum stand dismissed.
20. Parties shall bear their own cost.
....J (V.B. GUPTA) (PRESIDING MEMBER) ..
(REKHA GUPTA) (MEMBER) Sonia/