Huda And Ors. vs JASPAL SINGH

PETITIONERS /Opposite Parties have filed present revision petition under Section 21(b) of the Consumer Protection Act, 1986 (for short, ''Act'') against impugned orders dated 23.05.2011 and 9.11.2011, passed by the State Consumer Disputes Redressal Commission, Haryana, Panchkula (for short, ''State Commission'').

BRIEF facts are, that Respondent/Complainant was allotted shop -cum -office in March, 1997 by the Petitioners/Opposite Parties. Respondent paid 15% of the price at the time of allotment. Remaining amount was to be deposited within four years in eight half yearly installments, which respondent has paid. The petitioners offered possession to the respondent. Since there was no sewerage line, respondent requested the petitioners to provide sewerage line. Petitioners informed the respondent, that sewerage line has been laid in the area in August, 1997 and occupation certificate has been issued on 28.07.1997. It is the case of respondent, that sewerage line was laid in August, 1997, whereas possession was offered in July, 1997. Thus, occupation of the building has no relevancy with the offer of possession. Thereafter, respondent made representation to the Estate Officer, HUDA, which rejected the same. Then, respondent filed an appeal before Administrator, HUDA challenging the order of the Estate Officer, but the same was dismissed, vide order dated 16.10.2003.

AGGRIEVED by the order of the Appellate Authority, respondent filed revision petition before the Commissioner and Secretary to Govt. of Haryana, Town and Country Department, on 15.12.2003, which too was dismissed by the Revisioning Authority on 26.08.2004.

IT is respondent''s case that order passed by both the authorities are illegal, unjust, discriminatory and arbitrary and are liable to be quashed. Since, petitioners have rendered deficiency in service, consumer complaint was filed by the respondent seeking following reliefs; "That the complaint of the complainant be allowed by quashing the order dated 04.12.2003 by the Administrator, HUDA, and other dated 26.08.2004 issued by Commissioner TOCP Panchkula. And the order dated 22.11.2002 passed by the Estate Officer, HUDA Panchkula and may further direct the opposite parties;

a. To charge possession interest after 8/97 as has been allowed in respect of plot No. 99, Sector 11, panchkula which is adjacent to the complainant plot and adjust the same in subsequent installment or refund as the case may be.

b. Issue the fresh schedule of payment,

c. To charge simple interest @ 15% of the delayed payment of installment.

d. Issue fresh notice if any amount is due against the complainant.

e. To issue fresh statement of accounts and to refund the excess amount deposited if any which interest.

f. To pay Rs. 50,000/ - as compensation on account of mental agony, harassment and inconvenience cause to the complainant."

In the written statement, petitioners took preliminary objection stating, that present complaint is not maintainable and is barred by limitation. The alleged cause of action in favour of respondent arose in year 1997. The present complaint had been filed in the year 2004, i.e. after a gap of nearly 7 years.

IT is further stated, that respondent earlier filed an appeal before the Administrator, HUDA, Panchkula, on the grounds as contained in the present complaint. That appeal was dismissed on 16.10.2003. Thereafter, respondent filed a revision petition under Section 30 of the HUDA Act before the Financial Commissioner and Secretary to Govt. of Haryana, Town and Country Planning Department, Chandigarh. The same has also been dismissed on 26.08.2004. The District Forum, now cannot sit in appeal against the orders passed by the above authorities.

FURTHER , respondent has obtained the occupation certificate on 28.07.1997. The sewerage connection was also granted to him, as soon as he made application in August, 1997. Thus, there is no deficiency on the part of the petitioners. Consumer Disputes Redressal Forum, Panchkula (for short, ''District Forum'') vide order dated 12.05.2005, allowed the complaint and directed the petitioners as under; "Recalculate the entire account of the complainant keeping in mind that possession offer interest 18 chargeable after 8/97 and to refund the excess amount so paid or adjust in the next installment amount if due and issue a revised statement of also account of the complainant in writing and also pay a sum of Rs. 500/ - as cost of proceedings."

BEING aggrieved, petitioners filed appeal before the State Commission, which dismissed the same giving following reasons; "On appraisal of the pleadings of the parties and evidence adduced on record, the District Forum accepted the complaint and granted relied as mentioned above.

Hence this appeal.

Heard.

An application has been filed by counsel for the respondent the order stands complied with the amount stands paid thus cause of action does not survive. Therefore, the appeal has been some infructuous and dismissed as such."

HENCE , the present petition. We have heard the learned counsel for the parties and gone through the record.

IT is submitted by learned counsel for the petitioners, that Fora below grossly erred in re -fixing the date of offer of possession in respect of the plot to a date after completion of the construction and grant of occupation certificate. Even otherwise, the complaint is not maintainable being barred by limitation, since it was filed after more than 7 years from the date of allotment of the plot.

ON the other hand, learned counsel for respondent submits that respondent has paid entire amount as demanded by the petitioners. However when possession was offered, then there was no sewerage line at that time. Moreover, occupation certificate was issued on 28.07.1997, whereas sewerage connection was given in August, 1997. Thus, deficiency on the part of petitioners was there. Therefore, respondent cannot be made liable for paying any interest. It is an admitted fact, that respondent has already availed of the remedy available to him under the HUDA Act, by filing appeal and revision before the Competent Authorities, as provided under that Act. Now, in the present revision petition, respondent has prayed for quashing of order dated 22.11.2000 passed by the Estate Officer, HUDA, order dated 4.12.2003 passed by the Administrator, HUDA and order dated 26.08.2004 passed by the Commissioner, TOCP, Panchkula. These orders under challenge have been passed by the Competent Authorities as envisaged under the HUDA, Act. In case, respondent has any grievances against these orders, the remedy lies elsewhere and not before the Consumer Fora.

ADMITTEDLY , occupation certificate was issued on 28.07.1997, whereas sewerage connection was given in August, 1997. However, consumer complaint was filed in the year 2004. Thus, on the face of it, consumer complaint filed by respondent is barred by limitation.

SECTION 24 -A of the Act, deals with such situation and same is reproduced as under; "24 -A. 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 sub -section (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."

The above provision is clearly peremptory in nature requiring the Consumer Fora to see at the time of entertaining the complaint, whether it has been filed within the stipulated period of two years from the date of cause of action.

HON ''ble Apex Court in case of Kandimalla Raghavaiah & Co. versus National Insurance Co. Ltd. and another, : 2009 CTJ 951 (Supreme Court) (CP) took view of the observations made in case State Bank of India vs. B.S. Agricultural Industries, : 2009 CTJ 481 (SC) (CP) : JT 2009 (4) SC 191, 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;

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."

IN para No. 13, it has been held by the Hon''ble Supreme Court that; "The term "cause of action" is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of wide import. It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described as "bundle of facts"., which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, "cause of action" means the cause of action for which the suit is brought. "Cause of action" is cause of action which gives occasion for and forms the foundation of the suit. In the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out."

Thus, it is manifestly clear that complaint filed by the respondent before the District Forum was hopelessly barred by limitation and no application for condonation of delay was filed on behalf of the respondent.

THEREFORE for the reasons stated above, present revision petition is allowed. The orders passed by both the Fora below are set aside. Consequently, consumer complaint filed by the respondent before the District Forum, stand dismissed being barred by limitation.

NO order as to cost.