National Consumer Disputes Redressal
Punjab Small Industries & Export ... vs Satinder Pal Singh on 30 January, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 420 OF 2010 (Against the Order dated 04/11/2010 in Complaint No. 43/2009 of the State Commission Chandigarh) 1. PUNJAB SMALL INDUSTRIES & EXPORT CORPORATION LTD. & ANR. UDYOG BHAWAN ,SECTOR 17-A , CHANDIGARH CHANDIGARH 2. ESTATE OFFICER PUNJAB SMALL INDUSTRIES AND EXPORT CORPORATION LIMITED, UDYOG BHAWAN SECTOR 17-A CHANDIGARH CHANDKGARH ...........Appellant(s) Versus 1. SATINDER PAL SINGH HOUSE NO.19 ,NIHAL BAGH ,OPPOSITE CIRCUIT HOUSE PATIALA PATIALA PUNJAB ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Appellant : Mr. M.K.Dua , Advocate For the Respondent : Mr. Pardeep Bhardwaj, proxy counsel
For Mr. Nishant Dutta, Advocate
Dated : 30 Jan 2018 ORDER
This first appeal has been filed by the appellants Punjab Small Industries & Export Corporation Ltd. & Anr. against the order dated 4.11.2010 of the State Consumer Disputes Redressal Commission, UT Chandigarh (in short 'the State Commission') passed in CC No.43 of 2009.
2. Brief facts of the case are that the respondent was allotted plot No.D-180, Phase VIII-B, Mohali measuring 2500 square yard vide Letter of Intent (hereinafter referred to as 'LOI') dated 5.5.2000. On 20.05.2000, however the respondent herein made a request for change of plot. On 07.06.2000, the appellant herein after considering the request for change of plot vide registered letter bearing No.4613-17 dated 7.6.2000 changed the plot from D-180 to plot No.D-194, Phase VIII-B, Mohali. The respondent did not pay 30% amount nor responded to the letter. However another letter dated 26.6.2000 was sent again demanding the amount and giving show cause notice as to why the LOI should not be withdrawn. Getting no response from the respondent, appellants herein sent another notice on 11.06.2001. When there was no response from the respondent, the appellants herein/opposite parties withdrew the LOI/allotment vide their letter dated 30.5.2002. However, respondent vide his letter dated 26.6.2003 requested the opposite parties/appellants to again change the plot as the high tension wire was passing over the plot. As alleged by the complainant, when no response was received from the opposite parties, he filed a consumer complaint bearing No.43 of 2009. The complaint was resisted by the opposite parties/appellants on the ground that the complaint was time barred as well as the LOI was already withdrawn, therefore, complaint was required to be dismissed. It was also alleged that the complainant has never paid any instalment after the booking. The State Commission, however, allowed the complaint as under on 04.11.2010:-
"In this view of the matter, we allow the complaint and direct the OP No.1 in the following manner:-
To re-allot the above said plot with the prevailing current price.
To deduct the amount of the earnest money which has already been deposited by the complainant at the time of the allotment of this plot i.e. in 2000 out of the total price of the plot.
11. We direct the OPs to issue allotment order within 30 days from the date on which the complainant gives his consent in writing for the re-allotment of the above said plot.
12. We also direct the complainant if he is interested in the re-allotment of the said plot then he should give his consent in writing to the OPs within 30 days from the date of passing of this order."
3. Hence the present appeal.
4. Heard the learned counsel for both the parties and perused the record. Learned counsel for the appellants stated that the respondent/complainant never paid any instalment after the booking of the plot though his plot was changed on his request from D-180 to D-194. Even then the respondent did not bother to pay any instalment though various demand letters and show cause notices were sent to the respondent. Finally notice for withdrawal of LOI was sent on 11.05.2001. When there was no response from the respondent and no money was deposited, the appellants were constrained to withdraw letter of allotment on 30.05.2002. The complainant has made protest before the State Commission that he did not receive the letters as he had changed his residence. However, on 26.06.2003, the complainant has written a letter from the same address of Chandigarh for again changing the plot from D-194 to D-180 where he has acknowledged that his plot was already changed from D-180 to D-194. It is further stated in that letter that an overhead electric line is passing through plot No.D-194 and therefore, he wants again change of the plot or the overhead line may be shifted. This clearly means that he had received the letter changing the plot from D-180 to D-194. Thus, he must have received other letters, but still he is denying receipt of the show cause notice. The complaint is highly time barred because the cause of action arose on 30.5.2002 when the LOI was withdrawn and again on 26.6.2003 when he wrote a letter for shifting of the overhead line or changing the plot. If the action was not taken by the opposite parties/appellants herein, the complainant was free to file a complaint before 26.6.2005. This issue was raised in the written statement filed by the opposite parties. However, the State Commission has not given any consideration to these grounds. Though, the State Commission has observed in its judgment that the complaint is not barred by limitation, however, no reasons have been given by the State Commission in this regard. The learned counsel emphasised that the complaint was highly time barred and no application for condonation of delay has been filed by the complainant. Hence, the State Commission ought to have rejected the complaint on the basis of limitation. In this regard, the learned counsel for the appellants referred to the decision in State Bank of India Vs. M/s. B.S. Agricultural Industries (I) AIR 2009 SC 2210 wherein it has been held that:
"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".
5. Learned counsel further stated that the State Commission has observed that if the legal notice dated 26.6.2003 was sent by the complainant and its receipt has not been specifically denied, it has been presumed that the legal notice was served and no reply was sent on the legal notice. It seems that on this basis, the State Commission has taken further correspondence and the other legal notice sent in 2008 as continuing cause of action and the State Commission has not found the complaint as time barred. It is a settled principle of law that any amount of correspondence cannot extend the period of limitation. It will be counted from date of cause of action. It was further argued that the State Commission has agreed with the assertion of the complainant that he did not receive any of the notices as he had shifted his residence. This contention of the complainant is bereft of any merit as he has sent a letter dated 26.6.2003 from the same address of Chandigarh on which all letters were sent. Thus, it is not believable that notices or demand letters were not received by the complainant.
6. Learned counsel further pointed out that the State Commission has ordered re-allotment of Plot No.D-194, whereas the same was already allotted to a 3rd party and possession of the same has also been given to that party as would be clear from the possession certificate wherein the possession has been taken by that party on 22.01.2010. It is also clear from this certificate that the allotment of this plot was made to that 3rd party in the year 2005 itself. Thus, the order of the State Commission cannot be complied with. State Commission has already recorded that there are no other plots vacant for allotment. The State Commission has recorded that D-194 is vacant and is not allotted to anybody. This is factually wrong and the State Commission has not clarified as to on what basis D-194 has been stated to be vacant and available. The record of possession certificate clearly establishes that D-194 was allotted to a 3rd party and that party has also taken possession of that plot. Thus, no plot is available today to comply with the order of the State Commission.
7. On the other hand, the learned counsel for the respondent/complainant stated that the complainant was in regular correspondence with the appellants herein and when finally in the year 2008 it was informed by the appellants that they would not be able to help the complainant, complaint has been filed. Therefore, the complaint is well within time with cause of action when the opposite parties finally rejected the request of the complainant.
8. Learned counsel for the respondent further stated that the appellants/opposite parties did not take the plea of re-allotment of the plot to the 3rd party before the State Commission and therefore, that plea cannot be taken here. The possession certificate or even the allotment letter which is supposed to have been issued in the year 2005 were not brought before the State Commission and therefore, the State Commission rightly ordered the plot to be given to the complainant treating it as vacant and available. If the plot No.D-194 was allotted in the year 2005, this fact should have come in the written statement filed by the opposite parties/appellants, however, the same is not reflected there. All these documents have been forged by the appellants to disallow the respondent to get the possession of the plot No.D-194.
9. I have given a thoughtful consideration to the arguments advanced by both the learned counsel and have examined the material on record. It is clear that the complainant/respondent had received the information about the change of his plot. He has not disclosed in his letter dated 26.06.2003 how he has received this information. The presumption would be that he must have received the letter of change of allotment. The plot was changed on his request and therefore, he should have deposited the instalments. Even though in the complaint the complainant has mentioned that he has deposited instalments along with earnest money, however, the State Commission has given a finding that no instalments have been deposited by the complainant. It clearly means that the complainant had filed his complaint on the basis of wrong facts. Thus, he has not come before the State Commission with clean hands.
10. Coming to the issue of limitation, I find that first of all State Commission has erroneously recorded that a legal notice dated 26.6.2003 was issued. The fact is that this is a letter dated 26.6.2003 that was written by the complainant to the opposite parties wherein he had requested for changing the plot from D-194 to some other plot and also mentioned the fact that overhead electric lines were passing over the plot. Even if this letter was not replied by the opposite parties as the opposite parties had earlier cancelled the allotment vide their letter dated 30.5.2002 and even if the cancellation letter was not received by the complainant, he should have tried to find out what was happening to his allotment as he himself was not depositing the instalments. After six years he suddenly wakes up and sends another legal notice in the year 2008 and expects allotment of the plot when he has not deposited any single instalment. Clearly, the cause of action arose on 30.5.2002 when the allotment was cancelled. On 26.06.2003 when the complainant himself wrote a letter to the opposite parties and he did not receive any reply from the opposite parties, he should have taken action of filing complaint within two years from 26.6.2003. The complainant remained inactive for about five years and suddenly sent legal notice to the opposite parties and on that legal notice he filed the complaint. This cannot entitle the complainant for waiver of the limitation period as any amount of correspondence cannot extend the limitation period.
11. Even on merits, it is found that the complainant has not deposited any instalments and therefore, no plot can be kept vacant for him in anticipation that the complainant would be filing a complaint after six years. Even though, the possession certificate has not been filed before the State Commission, clearly the certificate shows that plot No.194 has been allotted to 3rd party and that party has taken the possession. Otherwise also, when the complainant has not paid any instalment in compliance of the allotment letter, he is not entitled to any plot.
12. The State Commission has not given any reasons for not treating the complaint as time barred except that notice dated 26.06.2003 was not replied by the opposite parties. It is very clear that even if the notice was not replied, the period of limitation would not extend beyond two years. As the issue of limitation was raised in the written statement, the State Commission should have examined the issue of limitation in detail. The same has not been examined, but an observation has been made that the complaint was not time barred. As explained above, the complaint has been filed after six years from the date of cause of action, therefore it is certainly time barred. Special limitation periods have been prescribed under the Consumer Protection Act, 1986 to resolve the consumer disputes in a speedy manner. 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."
13. Decision of Anshul Aggarwal (Supra) has been reiterated in CicilyKallarackalVs. 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).
5. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.
6. Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay."
14. Due to long delay in filing the complaint, the valuable rights have accrued on the opposite parties and using those rights the opposite parties/appellants have already disposed off the subject matter of the complaint to a 3rd party and therefore, there can be no question of condoning the delay in the present matter.
15. Based on the above discussion, it is seen that the State Commission has erroneously treated the complaint as within limitation. The complaint is highly time barred and the State Commission should have rejected the complaint on the ground of limitation. The First appeal is accordingly allowed and, therefore, order dated 04.11.2010 of the State Commission is set aside. However, in the interest of justice, it is ordered that the opposite parties/appellants shall refund the booking amount deposited by the complainant with interest of 8% p.a. from the date of deposit till actual payment. The order be complied with within a period of six weeks from the date of this order. No order as to cost for this appeal.
...................... PREM NARAIN PRESIDING MEMBER