Mulamoottil Deluxe Constructions And Anr. vs C. Radhamony Amma

HEARD the learned Counsel for the petitioner. This Revision Petition is filed against the Judgment and Order of the State Commission with a delay of 276 days. An application for condonation of delay has been filed. The reasons given in para -3 of this application are as under: "It is respectfully submitted that the impugned judgment in Appeal No. 647 of 2002 was passed by the Kerala State Consumer Disputes Redressal Commission, Vazhuthacadu, Thiruvananthapuram on 28.5.2008 and the same was posted to the petitioner on 30.7.2008. Due to heavy loss, the petitioner company stopped its activities during June 2008 and the office was not functioning regularly. It is submitted that the receipt of the order copy was not informed to the Managing Director by the staff who received it and the petitioner came to know about the disposal of the matter after only in the first week of this month. Thereafter, the petitioner searched the old files and found out the same. It is submitted that immediately after the same the petitioner came to Delhi for filing the Revision Petition. However, on account of the reasons stated hereinabove some delay was caused in filing the present Revision Petition. It is respectfully submitted that such delay is neither intentional nor deliberate and has been caused for reasons and circumstances beyond the control of the petitioner. It is, therefore, just and necessary that this Hon''ble Commission may be pleased to condone the delay of_____________ days in filing the instant Revision Petition otherwise the petitioner will be put to irreparable loss, hardship and injury."

THESE reasons gave raise to several questions i.e. on which date the staff member received a copy of the State Commission''s order, on which date the staff informed the M.D., on which date the petitioner searched the old files, on which date he found the same and on which date the petitioner came to Delhi, etc. etc.

THE Revision Petitioner has not even calculated the number of days of delay and he has left it blank to be filled by this Commission. This shows callous attitude. We are not at all convinced by the reasons given for condonation of delay. Hence this Revision Petition is liable to be dismissed on the ground of delay only. There is a direct judgment on limitation under Consumer Protection Act delivered recently by the Hon''ble Supreme Court in State Bank of India v. B.S. Agricultural Industries, II (2009) CPJ 29 (SC)=II (2009) SLT 793, wherein Section 24(a) of the Consumer Protection Act has been quoted in extenso: "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, 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.

Hon''ble Supreme Court has held as follows: "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."

ACCORDING to Regulation 14(1)(i) of the Consumer Protection Regulations, 2005, the Revision Petition shall be filed within 90 days from the date of the order or the date of receipt of the order as the case may be. In this case the Revision Petition has been filed with an abnormal delay of 275 days. Accordingly, the ratio of the above judgment is applicable to the case under consideration.

THEREFORE , this Revision Petition is liable to be dismissed on the grounds of delay along. Even then we have looked into the merits of the case.

THE respondent, C. Radhamony Amma was the complainant before the District Forum. The case of the complainant is that as per the agreement dated 31.1.2000; the petitioner -builder undertook the construction of a residential building measuring 1670 sq. ft. in the property of the complainant at a total cost of Rs. 8,76,750. The builder did not execute the work as per the time schedule although the complainant paid Rs. 3,10,000, which is more than the amount specified in the agreement at the particular stage of construction. Further the part construction made was defective and with poor quality material. Prior to the construction, there was an old building at the site, which was demolished by the builder and the wooden materials available from the old building which were to be reused for the construction of the new building were appropriated by the builder. As the builder has abandoned the project, the complainant claimed Rs. 3,10,000 to be refunded with interest at the rate of 18% and also sought for the compensation of Rs. 50,000 towards the mental agony, monetary loss, etc. and also a sum of Rs. 30,000 for demolishing the works executed by the opposite party and Rs. 50,000 towards the cost of timber of the old building and further Rs. 30,000 towards the unfair trade practice and deficiency in service.

THIS was vehemently contested by the builder. He stated that he had to spend Rs. 20,000 for demolishing the old building and the timber of the old building was of inferior quality, including the remnants of coconut tree which was disintegrated. The complainant did not provide wood for the work of door frames and window frames, etc. Non -supply of wood amounted to breach of agreement.

BOTH the parties led evidence. An expert Commissioner was appointed who held that the construction was of low quality and that reason given for non -completion of construction stating that as the wood was not supplied has no basis. The wooden items taken from the demolished old building has been misappropriated by the builder. Taking note of the fact that Rs. 1,50,000 is the value of the building constructed out of the total payment of Rs. 3,10,000, the District Forum directed that Rs. 1,60,000 to be refunded to the complainant by the builder -petitioner along with Rs. 85,000 to be paid as interest of bank loan towards the amount held by the builder and also Rs. 30,000 towards value of the timber appropriated from the old building.

AGGRIEVED by the order of the District Forum, the builder had filed an appeal before the State Commission.

THE State Commission re -appraised the evidence and facts of the case in great detail. The State Commission held that the finding of the Forum valuing the construction executed at Rs. 1,50,000 appeared reasonable but the direction to deduct Rs. 1,60,000 requires modification. As the builder has spent Rs. 20,000 towards cost of demolition, accordingly the builder is liable to pay Rs. 1,40,000 to the complainant as against Rs. 1,60,000 awarded by the Forum. Further Rs. 85,000 towards interest payable for the loan obtained from the Syndicate Bank is not supported by any specific evidence. Accordingly, allowing the appeal in part and relief portion was modified by directing the builder to pay the complainant Rs. 1,40,000 as part of the refund of the amount paid in advance along with Rs. 50,000 towards compensation, Rs. 30,000 towards value of the timber appropriated and Rs. 2,500 as cost. The State Commission further directed the builder to pay this amount within two months of the date of its order failing which the amounts except costs would carry interest at the rate of 12% per annum from the date of order of the Forum i.e. 29.7.2002.

HAVING heard the learned Counsel for the petitioner and after having studied the records of the case in great detail, we find that the District Forum has relied upon the report of Local Commissioner in arriving at the cost of construction. As against the advance received by the builder, the State Commission has reduced even from this amount Rs. 20,000 towards demolition of the old building. Further the District Forum has awarded Rs. 85,000 towards interest payable on the loan obtained by the complainant, the State Commission has reduced the same and awarded only Rs. 50,000 as compensation towards mental agony and harassment suffered by the complainant, who is a lady. It is undisputed that wood from the old building has been appropriated by the builder hence reasonable compensation has been awarded against that also. The State Commission having awarded compensation and cost has not separately awarded interest and given time to the petitioner -builder to pay the awarded amount within two months of the date of its order. This opportunity has not been utilized by the builder and he has tried to drag the complainant upto the level of National Commission by filing this Revision Petition.

ACCORDINGL Y , we do not see any irregularity or jurisdictional error in the order passed by the State Commission warranting our intervention under Section 21(b) of the Consumer Protection Act. Therefore, this revision petition is dismissed. There shall be no further order as to costs.