National Consumer Disputes Redressal
Naren Pravin Sanghvi vs Sunray'S Co-Op. Housing Society Ltd. on 15 February, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2238 OF 2015 (Against the Order dated 14/05/2015 in Appeal No. 90/2014 of the State Commission Maharastra) 1. NAREN PRAVIN SANGHVI 153/8, SUNRAYS,2ND FLOOR, ABOVE BANK OF MAHARASHTRA, SION CIRCLE, SION EAST, MUMBAI-400022 MAHARASHTRA ...........Petitioner(s) Versus 1. SUNRAY'S CO-OP. HOUSING SOCIETY LTD. SECRETARY: SHRI VIKRAM KISHANBHAI KHANNA, 153/10, SUNRAYS, SION CIRCLE, SION MUMBAI-400022 MAHARASHTRA 2. CHAIRMAN: SMT.VANITABEN VASANJI DEDHIA, 153/07, SUNRAYS, SION CIRCLE, SION MUMBAI - 400 022 MAHARASHTRA 3. TREASURER: SHRI MAHESH HARIA, 153/06, SUNRAYS, SION CIRCLE, SION MUMBAI - 400 022 MAHARASHTRA 4. COMMITEE MEMBER: SHRI SURESH SHAH, 153/09, SUNRAYS, SION CIRCLE, SION MUMBAI - 400022 MAHARASHTRA 5. COMMITTEE MEMBER, SHRI SANJAY KANUNGO, C/O DEEPAK BUILDERS PVT LTD, B-709 SAGAR TECH PLAZA, ANDHERI KURLA ROAD, SAKI NAKKA , ANDHERI (E) MUMBAI - 400 072 MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Petitioner : Mr. Pawan Kumar Ray, Advocate For the Respondent :
Dated : 15 Feb 2017 ORDER This revision petition has been filed by the petitioner/complainant under Section 21(b) of the Consumer Protection Act, 1986 seeking to assail the order of dismissal of the appeal dated 14.05.2015 by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (hereinafter referred to as "the State Commission") filed against the order of dismissal of the complaint by the Consumer Disputes Redressal Forum, Central Mumbai District (hereinafter referred to as "the District Forum") vide order 7.01.2014.
2. The facts relevant for the disposal of the revision petition are that the complainant had purchased flat from one Mr. Suri, and become a resident member of the OP Society vide order dated 28.03.2006. The complainant alleges that the opposite parties have unlawfully collected Rs.1,11,111/- from the complainant in 2006 under the pretext of arrears due from the previous owner of the flat. The complainant claims that the opposite parties have arbitrarily charged Rs.50,000/- for parking space allotment from the complainant only and not from other residents. According to the complainant, the opposite parties have failed to maintain the building as well as the society premises, thereby causing inconveniences/disturbance and jeopardizing the safety of the residents. It is the case of the complainant that opposite parties have committed breach of the Bye-Laws and provisions of the Mahrashtra Co-op Society Act, 1950. Aggrieved by the acts of the opposite parties, the complainant had approached the Assistant Registrar of the Co-operative Societies but his application was rejected. Although, the complainant filed a revision petition before the Joint Registrar Co-operative Societies, no cognizance was taken.
3. Aggrieved by the acts of the opposite parties, the complainant approached the District Forum and filed a consumer complaint. The District Forum vide order dated 07.01.2014 dismissed the complaint on the ground that the claim of refund of amount paid to the opposite parties is barred by law of limitation.
4. Aggrieved by the aforesaid order of the District Forum, the complainant preferred an appeal before the State Commission. The State Commission vide order dated 14.05.2015 dismissed the appeal on the ground that the complaint is time barred and the complainant has failed to file an application for condonation of delay in this regard.
5. Hence the present revision petition.
6. Heard the learned counsel for the petitioner and thoroughly perused the records.
7. The learned counsel for the petitioner stated that both the fora below have dismissed the complaint mainly on the ground of limitation. It was stated that the delay was only 3 days and the District Forum did not condone the delay and dismissed the complaint. The appeal was preferred before the State Commission by the complainant which was also dismissed vide its order dated 14.5.2015. The learned counsel also stated that for certain reliefs the complaint was well within the prescribed period of two years but even for those reliefs, the complaint has been dismissed. It is stated that the State Commission has erred in relying upon the statement of the OP that the amount of excess service charges which the complainant has claimed have been paid on 10th October, 2009 and the complaint has not been filed within a period of two years. The petitioner has prayed for the excess amount of service charges and parking charges and there are clear remarks of "paid under Protest on 26.12.09". Moreover, opponent's Receipt No.226 is dated 28.12.2009, duly encashed on 30.12.2009 at the Bankers bank of Baroda. Thus the complaint was very much in limitation period and hence, no application for condonation of delay was required.
8. It was further pointed out by the learned counsel that the State Commission has further erred in considering opponent's arguments that it was the prerogative of the General Body to decide the Maintenance and parking charges as Bye Laws 69(a(vi) 70 are themselves bad in law and ultra wires.
9. The learned counsel further argued and supported his case by stating that the complainant's claim for refund of Rs.1,11,111/- is quite genuine as there was no dues against Mr. Suri from whom the complainant had purchased the house.
10. I have carefully considered the arguments advanced by the learned counsel and examined the material on record. In the complaint, following prayers have been made:-
Admit complainant's claim towards refund of illegal and excess service charges, parking charges excessive amounts charged towards outgoing members illegal and old dues, as also Defamation charges etc. along with interest @ 21% P.A. (which opponents are charging to the complainant herein) as asked totaling Rs.17,78,941/- and order opposite party accordingly.
Withdrawal of parking space allotment charges of Rs.50,000/- which are not only baseless, but also from complainant only and from no one else a one-sided and bias approach.
Penalties to be charged to all managing committee members jointly and severally, as no one has shown their personal responsibility in violating bye law Rules acts etc. Opponents should adopt equal and unbias approach with fellow Members, as also regarding service charges, parking charges uprootation of trees, street lights at car parking places, Repairs to chhajjas and outside walls where required, proper entry to both terraces (3rd& 4t h floors), Timely circulation of Minutes of Meetings supplyingcopies andrecords of society's documents as and when required etc.etc. by following & implementing adopted by laws, Rules, Regulations and Acts.
11. First of all, it is to be seen whether the complaint was barred by limitation or not. It has also been observed by the State Commission that the complainant paid his outstanding dues against the previous owner Mr. Suri as on 10th October, 2009. The petitioner in his revision petition has mentioned that the charges were paid on 26.12.2009 as is evident from the endorsement made on the bill dated 10.10.2009 for the months of October to December, 2009. There is a receipt issued by the Society acknowledging the receipt of this amount which is dated 28.12.2009. The complaint in the matter has been filed on 29.12.2011. Thus, even if we go by arguments of the learned counsel for the petitioner, there is a delay of three days as the learned counsel has agreed that the money was deposited on 26.12.2009. Even if we go by the date of the receipt, there is a delay of at least one day. The Consumer Protection Act, 1986 allows a complaint to be filed within two years and if the complaint is not filed within two years, an application for condonation of delay is required to condone the delay, if deemed appropriate by the concerned Forum. In the present case, it is admitted that no application for condonation of delay was filed. The Hon'ble Supreme Court in the case of KandimallaRaghavaiah& Co. versus National Insurance Co. Ltd. and another, 2009 CTJ 951 (Supreme Court)(CP) has observed 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."
12. Moreover, Hon'ble Supreme Court in the matter of N.Shrikhande vs Anita Sena Fernandes AIR 2011 SC 212 has observed as under:
"14. A reading of the above noted provisions makes it clear that the District Forum, the State Commission and the National Commission are not bound to admit each and every complaint. Under Section 12(3), the District Forum is empowered to decide the issue of admissibility of the complaint. The District Forum can either allow the complaint to be proceeded with, which implies that the complaint is admitted or reject the same. Similar power is vested with the State Commission under Section 18 and the National Commission under Section 22. If the concerned forum is prima facie satisfied that the complainant is a 'consumer' as defined in Section 2(d) and there is a 'defect', as defined in Section 2(f) in relation to any goods or there is 'deficiency in service' as defined in Section 2(g) read with Section 2(o) and the complaint has been filed within the prescribed period of limitation then it can direct that the complaint may be proceeded with. On the other hand, if the concerned forum is satisfied that the complaint does not disclose any grievance which can be redressed under the Act then it can reject the complaint at the threshold after recording reasons for doing so . 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.................
15. ............Of course, if the complaint is barred by time, the consumer forum is bound to dismiss the same unless the consumer makes out a case for condonation of delay under Section 24A(2)."
13. From the above, it is clear that it is the duty of the consumer fora first to examine whether the complaint has been filed within time or not. Thus, both the fora below have committed no illegality in deciding that complaint was time barred as no application for condonation of delay was filed and as such delay could not have been condoned.
14. Here it is also relevant to mention that specific limitation periods are prescribed in the Consumer Protection Act, 1986 for speedy disposal of consumer disputes. Hon'ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has laid down that;
"It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer Foras."
15. Decision of Anshul Aggarwal (Supra) has been reiterated in Cicily KallarackalVs. Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein Hon'ble Supreme Court observed;
"4. This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in a matter where the special Courts/ Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute (s).
16. In Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45,it has been laid down that;
"There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence."
17. To see whether any purpose will be served if the delay is condoned, the prayers in the complaint are to be considered. The main prayer in the complaint is regarding refund of the amounts that have been paid by the complainant to the OPs which included the existing dues on the previous owner of the house from whom the complainant purchased the house. The complainant paid this amount to get the membership of the society as well as to legalize his purchase and get possession of the house. The Hon'ble Supreme court in case of State of Punjab and Ors. Vs. Dhanjit Singh Sandhu, Civil Appeal Nos.5698-5699 of 2009 decided on March 14, 2014, has held that:-
"21. .................The said demand was rejected by the Estate Officer by passing the reasoned order in compliance of the directions of the High Court. In the facts of the instant case, we have no doubt in our mind in holding that the ratio decided in Tehal Singh's case will not apply in the instant case. In our considered opinion defaulting allottees of valuable plots cannot be allowed to approbate and reprobate by first agreeing to abide by terms and conditions of allotment and later seeking to deny their liability as per the agreed terms.
25. It is evident that the doctrine of election is based on the rule of estoppel the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had."
18. It is clear that the dues relate to the property in question. As per decision of Hon'ble Supreme Court in State of Punjab and Ors.vs. Dhanjit Singh Sandhu (supra), the complainant now cannot raise the question of wrong demand as he has already paid the dues and has received the services/benefits.
19. So far as the second prayer in the complaint regarding parking charges of Rs.50,000/- is concerned, the State Commission has observed in its order that the same has been charged under the concerned General Body Resolution of the OP society. In this regard, the learned counsel has emphasized that the General Body cannot decide based on Bye laws which are not legal and General Body itself agreed to refund these charges if they are able to get the bye laws amended. The said bye laws were not amended by then and the society charged these chrges as per the existing bye laws and as per the General Body Resolutions. The consumer forum cannot consider the illegality involved in the Bye-Laws of the society or they being ultra wires.
20. Both the fora below have given concurrent findings by dismissing the complaint and this Commission has limited jurisdiction under the revisionary powers as has been observed by the Hon'ble Supreme Court in Mrs. Rubi (Chandra) Dutta vs. United India Insurance Company, 2011 (3) Scale 654, which reads as under :
"Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora."
21. Based on above examination, I find no merit in the Revision Petition No.2238 of 2015 and the same is dismissed in Limine.
...................... PREM NARAIN PRESIDING MEMBER