HARYANA URBAN DEVELOPMENT AUTHORITY vs Urmil Gupta

THIS revision petition has been filed against the order dated 23.07.2010 passed by the State Consumer Disputes Redressal Commission, Haryana, Panchkula (in short, ''the State Commission'') in Appeal No. 96/06 � HUDA & Anr. Vs. Urmil Gupta by which appeal was dismissed and order passed by the District Forum allowing complaint was upheld.

BRIEF facts of the case are that the complainant/respondent was allotted plot no. 566, Sector 8, Ambala City measuring 300 sq. mts. vide allotment letter dated 12.4.1989 asking the complainant to deposit Rs.17,809.50 being 15% of the total price of the allotted plot. Balance amount of Rs.89,047.50 was required to be paid in six annual instalments commencing after expiry of one year from the date of issue of the allotment letter with interest @ 10% from the date of offer of possession. Possession of the site was to be offered on completion of the development work. Complainant deposited Rs.3,19,027/-as per details given in paragraph 3 of the complaint, whereas the price of the plot was Rs.1,18,730/- plus demand of enhanced compensation of Rs.1,39,594.75. Complainant alleged that he had already made excess payment. In spite of repeated requests, possession of the plot was offered to the complainant vide letter dated 22.5.1993 whereas the possession was to be given after developing amenities within a reasonable period. It was further alleged that vide letter dated 7.9.1993, petitioner raised demand of Rs.1,39,894.75 on account of enhanced compensation and vide show cause notice dated 9.8.2001 asked the complainant to show cause why penalty of Rs.51,493/- be not imposed. It was further alleged that in normal course possession of the plot was to be given to the complainant within 2 years whereas it was offered after four years. Hence, the complainant is entitled to interest @ 15% on the deposited amount and further requested to set aside the illegal demand of Rs.54,493/- and further requested to grant Rs.2,50,000/- as compensation along with cost of Rs.6,000/-. The petitioner/OP filed written statement and denied claim and further alleged that the complaint is barred by law as the possession was offered in 1993 whereas the complaint has been filed after 12 years.

LEARNED District Forum after hearing both the parties allowed complaint and directed the petitioner to recalculate the entire account of the complainant and to charge simple contractual rate of interest and further directed not to charge penalty before 22.5.1993 and further directed to refund excess amount if so charged with interest @ 9% p.a. along with Rs.1000/- as costs. Learned State Commission dismissed the appeal of the petitioner.

HEARD learned Counsel for the petitioner and perused record. None appeared on behalf of the respondent in spite of notice.

LEARNED Counsel for the petitioner submitted that complaint is hopelessly barred by time and learned District Forum and the State Commission have committed error in allowing the complaint though it was time barred.

PERUSAL of written statement reveals that petitioner has specifically pleaded in its reply that complaint is barred by limitation as complaint has been filed after a lapse of about 12 years. In memo of appeal filed before the State Commission, petitioner has specifically pleaded that complaint was liable to be dismissed being time barred. Learned District Forum and the learned State Commission has not dealt the point of limitation in its order whereas it was obligatory on the part of the District Forum and the State Commission either to condone the delay or to dismiss the complaint being time barred. Petitioner has also pleaded in its memo of revision before the National Commission that complaint was time barred.

IT is admitted fact that plot was allotted vide allotment letter dated 12.4.1989 and possession of the plot was offered to the complainant vide letter dated 22.5.1993 and complaint has been filed in 2005 meaning thereby after taking possession of the plot complaint has been filed after 12 years. Demand of Rs.1,39,894.75 was raised vide letter dated 7.9.1993 and show cause notice regarding imposition of penalty of Rs.54,493/- was issued on 9.8.2001 and in the complaint these demands have been challenged and complaint has been filed on 9.5.2005 after 3 years and 9 months of show cause notice imposing penalty of Rs.54,493/-. According to Section 24A of the C.P. Act, complaint can be filed only within a period of 2 years from the date on which the cause of action has arisen but in the present case complaint has been filed after long delay as cause of action arose in 1993 when possession was given and in 2001 when notice imposing penalty was served and neither the complainant has moved application for condonation of delay nor delay has been condoned by District Forum or the State Commission. In such circumstances, the learned District Forum has committed error in entertaining the complaint and allowing the complaint and the leaned State Commission has also committed error in upholding the order of the District Forum though at both the Fora, the petitioner had taken the plea of limitation and in such Circumstances, the complaint is liable to be dismissed.

CONSEQUENTLY, the petition filed by the petitioner is allowed and impugned order passed by the learned State Commission dated 23.7.2010 and order of the District Forum dated 10.11.2005 are set aside and complaint being barred by limitation is dismissed.