COINPAR, CENTRE OF INDIAN Consumer Protection and Research vs S.CHANDRA KUMAR

THIS appeal is directed against the order passed by the District Forum, Thiruvananthapuram in OP No. 347/95. Complainant is the appellant.

SHORTLY stated, the allegations in the complaint are as follows : Opposite parties are running business of construction of building. They agreed to construct a residential building for the complainant at Trivandrum at the rate of Rs. 185/- per square foot. Out of works agreed to be executed the opposite parties carried out construction for only up to the plinth level. The 1st opposite party received an amount of Rs. 39,000/- out of which only Rs. 30,870/- was treated as 15% of the total estimated cost as per the schedule of payment in the agreement. The complainant therefore alleged that the opposite party received an excess amount of Rs. 8,130/-. Subsequently the opposite parties stopped the construction of building alleging costescalation. The complainant agreed to revise the rates. It is also alleged that on 18.4.1993 the complainant paid Rs. 20,000/- towards the advance of the second stage work. Thus according to the complainant he is entitled to get Rs. 28,000/- by way of refund and to get Rs. 25,000 /- as compensation from the opposite parties. The opposite party filed a revision stating that the complaint is not maintainable and it is hopelessly barred by limitation.

The District Forum upheld the contention regarding the maintainability of the complaint holding that it is barred by limitation. It observed that the agreement for the construction of the building between the complainant and the opposite parties was entered into on 10.8.1992 and it was agreed to finish the work within 8 months from 10.8.1992 and the complainant''s cause of action arose from 10.4.1993 on which date opposite parties stopped the work and complaint which was filed on 6.7.1995 i.e., after two years from the above date is barred by limitation in view of Section 24-A of the Consumer Protection Act. The District Forum also held that the dispute does not fall within the definition of complaint in Section 2(1)(c) based on the decision in (1997) 1 CPR page 29.

AGGRIEVED by the said order this appeal has been preferred. Though notices were issued to the respondents they were returned with endorsement ''Left India''. In the circumstances the substituted service was taken by publication in the Madhyamam Daily in its issue dated 21, September 1997. We take this as effective service. Learned Counsel submitted that on the date of cause of action Section 24-A did not come into operation and therefore it was the Limitation Act which has to be applied according to which period of limitation is three years from the date of cause of action. Learned Counsel also invited our attention to the decision in B.R. Menon s/o A. Balakrishna Menon v. Managing Partner, The Matha Finance, Koratty, 1995 (3) CPR page 506, where similar question was considered by us. We pointed out that Section 24-A was introduced only by Act 50 of 1993 which came into force on 18.6.1993 and before that the complainant had three years period as per the provisions of Limitation Act and complaint could have been filed on or before 9.4.1996. Complaint was filed in 1996. However Section 24-A came into force on 18.6.1993 after two years but before the expiry of three years. On the facts of that case I we held that it would be difficult to say that the complaint is barred by limitation as the cause of action arose before coming into force of Act 50 of 1993 and that even assuming complaint filed after two years is barred there is sufficient reason to exercise discretion under Sub-section 2(24) and to condone the delay. The National Commission has upheld our view in revision. Unfortunately the District Forum has not considerd this aspect.

THE District Forum has relied on the decision of the Karnataka State Commission in Smt. Uma v. M/s. Vasant & Susil & Susil, 1997 (1) CPR 29. That was a case where there was an agreement to refund the amount and the State Commission held that will not fall within the purview of the Consumer Protection Act. Here what is alleged is deficiency in service for not completing the construction inspite of payment made by the complainant. In the circumstances the decision of the Karnataka State Commission relied on by the District Forum is not applicable to the facts of this case. We, therefore, allow the appeal, set aside the order of the District Forum, and remit back the matter for fresh disposal after considering these aspects and giving an opportunity to the parties to adduce evidence. Appeal allowed.