National Consumer Disputes Redressal
Kishore Shriram Sathe vs Vivek Gajanan Joshi on 1 October, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION No. 1953 of 2011 (From the order dated 28.01.2011 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai in Appeal no. 1430 of 2009) Kishore Shriram Sathe Resident of 7 Anand Apartments Shridhar Nagar, Chinchwad Petitioner Pune 411 003 Versus Mr Vivek Gajanan Joshi Resident of 6 Hindu Middle Class Society Opp. Apple Road, Deccan Gymkhana Respondent Pune 411 004 BEFORE: HONBLE MR JUSTICE V B GUPTA PRESIDING MEMBER HONBLE MRS REKHA GUPTA MEMBER For the Petitioner Mr Ajay Vikram Singh, Advocate Pronounced on 1st October, 2013 ORDER
REKHA GUPTA Revision petition no. 1953 of 2011 has been filed against the judgment and order dated 28.01.2011 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (the State Commission) whereby allowed the first appeal no. A/09/1430.
The facts of the case as per the petitioner/complainant are that on or about 15.03.1988 the respondent/ opposite party offered to sell the residential flat in a building named as Bhagirathi Apartments situated at S.No. 272, plot no. 13, Chinchwad Taluka, Haveli, District Pune.
The petitioner was desirous to purchase a flat for residential purpose. The petitioner on knowing about the construction of a building named Bhagirathi Apartments approached the respondent on or about 15.03.1988 with a view to purchase a residential flat in the above said building.
On knowing the intention of the petitioner to purchase the residential flat, the respondent offered to sell flat no. 7 situated on 2nd floor of building Bhagirathi Apartments, Shridharnagar, Chinchwad, Pune 411 033.
The petitioner and the respondent made and executed an agreement dated 07.04.1998, registered in the office of Joint Sub-Registrar, Haveli no. 2, Pune at S No. 5294. By the said agreement the respondent agreed to sell and the petitioner agreed to purchase the said flat for a total consideration of Rs.1,68,500/-. The respondent by the said agreement assured to give possession of the said flat on or before 31.10.1988. The petitioner has paid to the respondent Rs.1,40,000/- towards part payment as demanded from time to time.
Even after the stipulated date of possession respondent failed to construct the building wherein residential flat was promised to be allotted to the petitioner.
Therefore, the petitioner on various occasions persistently made demands orally and in writing either to give the possession of the flat or refund the amount received from the petitioner. The respondent on every such occasion gave false assurance to refund the amount of consideration of Rs.1,40,000/- along with the interest as agreed by the said agreement.
The respondent sent letters dated 24.01.1992, 10.03.1992 assuring the petitioner that certain steps shall be taken whereby the petitioner need not suffer and worry. However, again the respondent did not act as per his assurances.
The petitioner therefore recently sent letter dated 01.02.2005 to the respondent demanding refund of said Rs.1,40,000/- along with interest and compensation. The respondent received said letter on 04.02.2005 and showed his willingness before Mr Mehendall, the member of All India Consumer Panchayat, Pune, to refund the entire amount with interest @ 15% per annum and compensation within 15 days. However, this time also the promise of respondent proved to be false one.
Thus the respondent has wilfully failed and neglected to refund the amount of part consideration of Rs.1,40,000/- received from the petitioner or to give possession of said flat till date.
The cause of action to file this complaint first arose on 31.01.1988 when the respondent failed to give possession of the said flat and thereafter on various occasions from time to time in spite of his promises. The respondent on or about 04.02.2005 again promised to refund the said due amount to the petitioner but did not do so. The cause of action is of continuing nature and therefore this complaint is within limitation period. Relaying on the various assurances of possession of said flat or refund of said amount given by the respondent the petitioner did not file the complaint till date.
It is, therefore, kindly prayed that the respondent be ordered to:
(a) To refund to the petitioner Rs.1,40,000/-
along with interest @ 18% from the date of payment till its realisation;
(b) To pay Rs.2,00,000/- to the petitioner towards compensation for mental agony, inconvenience to the petitioner and his family members, physical discomfort, loss of benefit of rebate under Income Tax Act, interest paid litigation expenses, stamp duty, registration fees etc.
(c) Any other order in the interest of justice be kindly passed.
In their written version filed by the respondent/ opposite party has stated that the respondent has completed construction of building and it was ready for giving possession. However, the petitioner did not pay the balance amount. Therefore, it was not possible to give possession to the petitioner. In spite of various intimations the petitioner avoided making payment and delayed to take possession and in the meantime dispute arose between respondent and land owner. Therefore, the respondent failed to give possession of said flat to the petitioner.
M/s Sayali Builders was a partnership firm. The respondent was a partner of said firm and other partner was Mr Eknath Daguji Nikam. A land situated at S No. 272, Plot no. 13, admeasuring 433 sq, mtr. Out of total 586 sq mtrs., was owned by Mr Eknath Daguji Nikam and others. Mr Eknath Daguji Nikam and others transferred the development rights in the said land to M/s Sayali Builders vide Development Agreement dated 25.02.1987 and the land owner of said land Mr Eknath Daguji Nikam was himself a partner of the said partnership firm. The land owners of said land gave power of attorney to the opposite party and Eknath Nikam for development of said land and to act as per the Development Agreement. In pursuance to the said power of attorney M/s Sayali Builders developed the said property and constructed 7 residential flats and 3 commercial units. Meantime, petitioner was in need of a flat therefore he contacted the respondent and agreed to purchase flat no. 7 for Rs.1,68,500/-. Accordingly, M/s Sayali Builders executed and registered an agreement dated 07.04.1988 and agreed to give possession upto 31.01.1988. When the construction of said building was being completed M/s Sayali Builders informed the petitioner to take the possession after making balance payment. However, the petitioner avoided to pay the amount and to take possession of said flat. Meantime, dispute arose between M/s Sayali Builders and said lands original owner Nikam family therefore, the land owners created a dispute by cancelling the development agreement and power of attorney on 25.09.1989 and said land owners illegally took possession of the said building and flat no. 7 which had been allotted to the petitioner. The respondent informed about it to the petitioner by meeting him personally and by sending letter and informed that respondent is trying to give possession of the said flat to the petitioner. Meantime, the respondent suggested to the petitioner to take possession of the said flat from Civil Court. However, the petitioner did not file any suit in the civil court till date.
The petitioner M/s Sayali Builders on 07.04.1988 made and executed an agreement. However, the petitioner was required to file a complaint in consumer forum within limitation period. Petitioner did not file a complaint within the limitation period. Hence, it is time barred. Also petitioner executed agreement with M/s Sayali Builders, however, it is not made a party to the complaint. Therefore, there is bar to the complaint. Therefore, the complaint deserves to be dismissed.
The petitioner had filed the present complaint which came to be disposed of by the District Consumer Redressal Forum, Pune (the District Forum) on 23.10.2008. An order came to be passed directing the opponent to pay an amount of Rs.1,40,000/- together with interest @ 12% per annum. The rest of the claims made by the petitioner were rejected. The aggrieved opponent had preferred the first appeal before the State Commission. It came to be allowed by the order dated 21/04/2009 passed by the State Commission. The main order passed in the complaint was set aside. The record and proceeding was remitted to have the District Forum with the directions to hear the petitioner/ complainant afresh after giving opportunity to both the parties and to settle the dispute in accordance with law. It is under the aforesaid circumstances the District Forum dealt with the complaint afresh.
The District Forum vide order dated 03.11.2009 observed that:
Before the Honble State Commission, it appears that plea of limitation was again raised by the aggrieved opponent. In addition to that another plea was raised that the complaint is not maintainable against the opponent. It is pointed out that the name of the opponent is given as a partner of Sayli Builder. The later Firm is not impleaded as opponent. Consequently therefore the failure to implead the Firm is fatal and therefore on account of non joinder of the parties the complaint was liable to be dismissed. On the aforesaid findings the Honble State Commission was pleased to remand the complaint to this Forum for disposal in accordance with law, afresh.
On behalf of the opponent the aforesaid plea of non-joinder of the Firm was again raised before the Forum. It is not in dispute that the plea of limitation is again reiterated by the opponent. Shri. Joshi the learned Advocate who appeared on behalf of the opponent has urged before us that there are two technical pleas in the present case. Both of them go to the very root of the matter. They deal with the maintainability of the complaint. One of them is about the limitation and other being non joinder of the Firm. Again the observations made by the Honble State Commission in its order dt.21/4/2009 are relied upon contending interalia that the Firm is a juristic person. The complainant is a consumer in relation to the Partnership Firm.
When the agreement between the Firm and the complainant had taken place, the opponent had styled itself as a partner of the Firm. The Firm was not sued but the opponent in his individual name is sued. That being the position there was no legal impediment for the opponent to take appropriate plea under Order XXX of the C.P.C. The fact therefore remains that Order XXX being enabling provision it does not prevent partners of a Firm from suing in his individual name and that the Firm is not a legal entity. We therefore find that the aforesaid findings recorded by the Honble Apex Court way back in the year 1961 are squarely applicable to the facts of the present case. It is not necessary to make further observations in this regard.
The District Forum then went on to consider and deal with the issue of limitation. The District Forum held that:
In the instant case what has happened is the agreement was duly registered on 7/4/1988. The payment from time to time was made by the complainant till 2/7/1990. The complainant was to be handed over possession of the said flat by the end of 31/10/1988. It may be worthwhile to mention that in the agreement dt.7/4/1988 the date of delivery of possession is not specifically provided. On the other hand in clause 9 thereof it was provided that the possession would be delivered after execution of the conveyance to the society. Then there are number of letters exchanged between the parties. In one letter dt.2/4/1988 the opponent has agreed to handover possession by the end of 31/10/1988. In the subsequent letters of 1992 and on 10/3/1992 the complainant was assured that no loss would be caused to him. There was litigation between one of the partner who incidentally was the owner of the land and the present opponent. The Development Agreement was probably terminated by the owner. The said owner had forcibly taken the possession of the flat. The efforts were made by the opponent to disposses the said partner owner and to handover possession of the said flat to the complainant. In that background the complainant was assured in the letter dt.24/1/1992 that he shall not be liable to sustain any loss or damages. Meaning thereby the opponent had specifically admitted that the agreement would be complied with. It was only on 6/2/2005. The complainant was informed by other partner by name Shri. Nikam that there is no privity of contract between him and the complainant at the other vis a vis the said flat. It was only on this date i.e. on 6/2/2005 the complainant had learnt that the agreement in question was terminated orally by one Shri. Nikam, who was probably Partner of the opponent Firm. Now period of limitation for specific performance of the contract would begin to run from the date mentioned in the agreement. We have seen earlier that in the agreement dt.7/4/1988 there was no date fixed for performance of the agreement. The complainant had learnt that the said agreement was rescinded by letter dt.6/2/2005 only. The period of limitation would begin to run from that day. Obviously therefore reliance is placed on Article 55 of the Limitation Act by the learned Advocate for the complainant together with section 22 thereof is proper.
The District Forum came to the conclusions that in the instant case from the discussion made herein above it is apparent that for the first time the agreement of April 1988 was refused to be complied with by one of the partner of the Firm on 6/2/2005. It was from this date onwards that the period of limitation would begin to run. We therefore find that we have no other option but to adopt the reasoning and conclusions already arrived by us by earlier order dt.23/10/2008. We therefore proceed to pass the following order:
ORDER
1. The complaint is partly allowed.
2. The Opposite Party is hereby directed to refund to the Complainant, an amount of Rs.1,40,000/- together with interest thereon @ 12% p.a., as from the date of respective payments till realization thereof by the Complainant, within a period of two months from the date of this order.
3. Rest of the claims of the Complainant stands rejected.
4. No order as to costs.
Aggrieved by the order of the District Forum, the respondent filed an appeal before the State Commission. The State Commission while allowing the appeal has observed as under:
Opponent opposed the consumer complaint specifically raising contention that the agreement was with Sayli Builders, which is a registered partnership firm. The property belonging to one of its Partners, namely, Eknath Daguji Nikam, was given for development to said partnership firm as per agreement dated
25.02.1987. In all seven residential flats and three shops were to be constructed. Complainant was in need of a flat and therefore, contacted M/s.Sayali Builders and agreed to purchase Flat No.7 for consideration of Rs. 1,68,500/-
from said firm and entered into an agreement dated 07.04.1988. Sayali Builders asked the Complainant to take possession of the flat on payment of balance consideration. The Complainant avoided to take possession. In the meantime thereafter dispute arose between the Sayali Builders and the original land owners of the property and the original land owners cancelled the development agreement dated 25.09.1989 and also revoked power of attorney in favour of the Sayali Builders. Thereafter, those land owners also forcibly took possession of flat no.7. These developments were brought to the notice of the Complainant by the Opponent and it was also suggested to the Complainant to take possession through Civil Court. It is alleged that the consumer complaint is barred by limitation and furthermore the consumer complaint ought to have been filed against Sayli Builders and since said Sayali Builders is not joined as a party, the complaint is not tenable.
After hearing both the parties the Forum initially settled the dispute by an order dated 23.10.2008. The same was challenged by the Opponent in First Appeal no.1558/2008. Allowing the said appeal, matter was remanded back and it was also observed while disposing the appeal that Sayali Builders ought to have been made a party. The matter was remanded in view of those observations. It appears that thereafter Complainant did not take any steps to add Sayali Builders as a party. The matter was re-contested on the basis of original pleadings, i.e. complaint and the written version. The matter stood disposed of by an impugned order, supra.
The Agreement in question dated 7th April, 1988, the copy of which is on record, is not in dispute. It can be seen that said agreement is entered with Sayali Builders, the registered partnership firm and not with the opponent. Though Opponent was shown as the partner acting on behalf of said firm the complaint as drafted and to which the reference is made earlier, the Complainant did not allege that the agreement was with the partnership firm, but, described the Opponent as the builder and developer and stated that it is the Opponent who offered him a plot thereafter and an agreement dated 07.04.1988 was entered into. It shows that Complainant, since from the beginning did not want to bring a registered partnership firm M/s.Sayali Builders into picture as a defending party. In fact once the agreement is with the partnership firm, the service deficiency, if any, could be alleged only against the said firm and not against any individual. Had it been a fact that all the partners of M/s.Sayali Builders were joined as parties, the things could have been looked with difference but, it is not the case before us. Considering the provisions of Indian Partnership Act, inter se relationship between the partners of a firm is governed by the partnership agreement. Therefore, to file a consumer complaint in the personal name of the Opponent and that to describe him as a builder and developer who agreed to sell the flat, is per se not only contrary to the agreement dated 07.04.1988, but also against the provisions of the Consumer Protection Act, 1986 (hereinafter referred to as the Act for brevity) and no consumer complaint for want of hiring of any service of the Opponent in his individual capacity would lie against the Opponent.
The Forum heavily relied upon the decision of Apex Court in the matter of Purushottam Umedbhai and Company V/s. Manilal and Sons, reported in 1961 AIR (SC) 325. It has only explained the scope of Order XXX of Code of Civil Procedure, 1908 and further explained that after incorporation of said Order in the scheme of Code of Civil Procedure, an enabling provision is made which permits the partners constituting firm to sue or be sued in the name of the firm. Provisions of Order XXX of Code of Civil Procedure 1908 are not made applicable to the consumer dispute under the Act as per Regulation No.26(1) of the Consumer Protection Regulation 2005 and it is mandate of law that, in all proceedings before the Consumer Forum, endeavour shall be made by the parties and their counsels to avoid the use of provisions of Code of Civil Procedure, except the one provided for.
To decide the inter se relationship as a consumer and service provider between the parties to consumer dispute one has to refer to a definition of person per section 2(1)(m) of the Act. It includes a firm registered or not. The phrase deficiency (Section 2(1)(g) of the Act) is defined as under:
deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. (underlining provided).
Thus, it is clear that a registered partnership is recognized as a person vis--vis jurisdic person as a service provider and therefore, if the deficiency in service is to be alleged against the said registered firm the consumer complaint ought to have been filed against the said firm. It may be that the partners of said firm could be joined along with the firm, but, it is certainly not contemplated that a consumer complaint could be filed only against a person like an opponent against whom the action is brought in his personal capacity and certainly it is further not contemplated that only one partner of a partnership firm could face consumer complaint in the absence of the firm and other partners. Therefore, present consumer complaint suffers a vital defect and it cannot be proceeded against the Opponent.
From the statement made by the Complainant himself it could be seen that Complainant was well aware (as reflected from the correspondence since the year 1992 and from the averments made in the complaint) that no construction of the building was coming up and hence, it was not possible to get possession of the flat and demanded refund of the amount, i.e. consideration paid. In paragraph 9 of the complaint, supra, the Complainant alleged that by his letter dated 01.02.2005 which was received by Opponent on 04.02.2005, the opponent showed his willingness before Mr.Mahendall, the member of All India Consumer Panchayat, Pune, to refund entire amount with interest @15% per annum and compensation within 15 days. The complaint is also filed for refund of consideration only, thus, it is a money claim and at that point of time the Complainant already treated the original agreement to sell a flat or purchase a flat rescinded. Therefore, for said money claim no consumer complaint would lie.
A reference has been made to a letter dated 06.02.2005 addressed to the Complainant by one Shri S.E. Nikam (presumably land owner and one of the partners of Sayli Builders). The Forum referring to this letter in paragraph 13 of the impugned order made certain observations to the effect that it was only on this letter date 06.02.2005 Complainant learnt that the Agreement in question was terminated by one Shri Nikam who was probably partner of the opponent firm . The complainant had learnt that the said agreement was rescinded by letter dated 06.02.2005 only. The period of limitation would began to run from that day Such observation is a departure from the factual position and is a mis-statement of fact. The letter dated 06.02.2005 written by Mr. S.E. Nikam, supra, acknowledged the communication received from the Complainant dated 04.02.2002 and further informed the Complainant to explain to said S.E. Nikam as to under which authority he was claiming flat no.7 from Bhagirathi Apartment and further requested the Complainant to forward to him the necessary documents showing his interest or a claim in the said flat. Mr. S.E. Nikam also informed Complainant by said communication that there was no agreement between him and the Complainant at any time and there is no transaction of receiving money had taken place in between them. Thus, it is not the letter whereby any contract was rescinded by said Shri S.E. Nikam either on his behalf or on behalf of M/s.Sayali Builders.
As earlier recounted, Complainant was well aware from the correspondence from the year 1992 itself that the agreement to handover possession of the flat would not be materialized because no construction was at all coming up (as per case presented by the Complainant himself). He further restricted his reliefs to claim refund of the consideration paid i.e. `1,40,000/-. Therefore, the cause of action to file the consumer complaint arose in the year 1992 itself and thus, the consumer complaint filed on 17.01.2006 is barred by limitation in view of the Provisions of Section 24-A of the Act.
For the reasons stated above, we hold accordingly and pass the following order:
O R D E R
(i) Appeal is allowed.
(ii) Impugned order dated 03.11.2009 is set aside and in the result Consumer Complaint No.19/2006 stands dismissed.
Hence, this present revision petition.
The main grounds for the revision petition are as follows:
The State Commission has ignored the fact that as per order XXX of CPC the partner of a firm can be sued in his individual name.
The State Commission has ignored the fact that the main reason of the CPC not being made applicable in its original form to the consumer proceedings is merely to avoid the technicalities of CPC which is very cumbersome and causes lot of delay.
Mr Eknath Dagdu Nikam, i.e., the other partner of Sayali Builder breathed his last on 06.05.1998 and the firm Sayali Builders had only two partners and as per Section 42 of the Partnership Act with the demise of one partner the firm is dissolved and only Mr. Vivek Gajanand Joshi (Respondent) was left who can sue or be sued.
The State Commission has ignored the fact that the money was lying with the respondents and as such the cause of action for refund of aforesaid money deposited by the complainant is recurring and continuous.
We have heard the learned counsel for the petitioner and have also gone through the records of the case carefully.
The two main points raised by the petitioner in the revision petition are that whether one of the partners of the firm can be sued in his individual name and held responsible for the liabilities of the partnership firm with whom the agreement was entered into and secondly, whether the complaint had been filed within the limitation period.
With regard to the first question it is seen from agreement placed on record that it was between Sayali Builders, a partnership firm registered under the Indian Partnership Act of 1932 and the petitioner. It is clearly mentioned in the agreement that Agreement of Development dated 20.06.1987 executed between Shri Eknath Daduji Nikam, Shri Shanatram Eknath Nigam and Sou Sadhana Shantaram Nikam constitutes parternship firm between Shri Eknath Daduji Nikam owner of the land and the builder Shri Vivek Gajanand Joshi by the deed of partnership dated 14.06.1987. It also mentioned that builders had been granted power and authorities under the General Power of Attorney dated 10.12.1987 for enabling the builders to do various acts, deeds and things in the development of the said plot and in the allotment and/ or sale of flats and garages on which is known as ownership basis. It was in this capacity that the agreement had been entered into for Sayali Builders by Mr G G Joshi.
The petitioner had to be aware of these facts. As given in the written arguments by the respondent, the dispute arose between M/s Sayali Builders and the said lands original owner Nikam Family, therefore the land owners created a dispute by cancelling the development agreement and power of attorney on 25.09.1989 and the said land owners illegally took possession of the said building and flat no. 7 which was allotted to the complainant. The respondent had informed the petitioner by meeting him personally and by sending letters that he is trying to give possession of the said flat to the petitioner. The respondent suggested that he would take possession of the flat from the civil court. However, the respondent did not file any civil suit in any civil court till date. This is also supported by the letter dated 24.01.1992, which has been placed on record by the petitioner which is from the respondent to the petitioner apprising of the problems of the partners as also cancellation of the agreement. The letter dated 25.06.2005 from Shri S E Nikam to the petitioner which is a response to the registered letter sent by the petitioner on 04.01.2002, merely says that there is no proof that the flat no. 7 in Bhagirathi Apartments was allotted to the petitioner and that he is not aware of any agreement/ deed executed or dealing with regard to the money transaction between the petitioner and Shri S E Nikam.
In the above-mentioned circumstances, we agree with the order of the State Commission where they have come to the conclusion that consumer complaint suffers a vital defect and it cannot be proceeded against the opponent.
With regard to the second question of limitation neither the facts mentioned in the complaint nor any argument made by the counsel for the petitioner justify the inordinate delay of in filing the complaint on 17.01.2006. As per the facts of the case the agreement for purchase of flat was signed on 07.04.1988. Whereas the agreement did not mention any date for handing over the possession, as per the petitioner he was to have been delivered the possession of the flat by end of 31.10.1988. He was made aware of the cancellation of the development agreement and power of attorney as also the fact that land owners have illegally took possession of the said building and flat no. 7 which was allotted to the complainant on 25.09.1989. In was in these circumstances, that in 2002 that he even written to Shri S C Nikam, the land owner. Even presuming that he was not aware of this fact immediately on cancellation, he has himself placed on record a letter from the respondent dated 24.01.1992 apprising of the circumstances. Therefore, the cause of action to file a consumer complaint arose in 1992 if not before, Hence, this consumer complaint filed only on 17.01.2006 is barred by limitation, in view of the provisions of section 24 (A) of the Act.
In discussing the import of the aforesaid section, the Apex Court has observed as under in the case of State Bank of India v B. S. Agriculture Industries (I) [(2009) 5 SCC 121]:
7. The bank resisted the complaint on diverse grounds, inter alia, (i) that the complainant was not a consumer within the meaning of Consumer protection Act, 1986 (for short, Act, 1986); (ii) that the complaint was early time barred and beyond the period of limitation; (iii) that the bills and GRs were returned to B.M. Konar, the Sales Manager of the complainant firm; (iv) that the drawee (M/s Unique Agro Service) had accepted the liability of payment of the bills to the complainant vide letter dated May 11, 1994 and also deposited a cheque to the complainant in that regard.
8. The District Forum framed two points for determination: (one) whether there is any deficiency on the part of the opposite party and (two) whether B.M. Konar was authorized agent in collecting the bills and GRs from the Bank? Pertinently, despite the specific plea having been raised by the Bank that the complaint was time barred, point for determination in this regard was neither framed nor considered.
9. The District Forum held that there was deficiency in service by the Bank and that the Bank was liable to compensate the complainant and consequently, directed the Bank to pay to the complainant a sum of Rs. 2,47,154/- with interest @ 15% per annum from April 21, 1994 and Rs. 5,000/- as compensation.
10. As stated earlier, the State Commission affirmed the order of the District Forum and the National Commission also did not interfere with the concurrent orders of the consumer fora.
11. Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the consumer fora thus:
24A.
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 subsection (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.
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 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 a sort of legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder.
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, 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.
Learned counsel for the petitioner has also cited two judgments, pertaining to the National Commission as well as the Honble Supreme Court of India. In the first case - Mopar Builders and Developers Pvt. Ltd., vs Unity Co-op Housing Society Ltd. (RP no. 2743 of 2010) is not applicable to the case on hand and second case pertaining to Lata Construction and Ors vs Dr Rameshchandra Ramniklal Shah also does not apply to the case on hand.
In view of the above, we find that there is no jurisdictional error, illegality or infirmity in the order passed by the State Commission warranting our interference. The revision petition is accordingly dismissed with cost of Rs.5,000/- (Rupees five thousand only).
Petitioner is directed to deposit the cost of Rs.5,000/- by way of demand draft in the name of Consumer Legal Aid Account of this Commission, within four weeks from today. In case the petitioner fails to deposit the said amount within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.
List on 22nd November 2013, for compliance.
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[ V B Gupta, J.] Sd/-
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[Rekha Gupta] Satish