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Judgment
PRESENT petition has been filed against order dated 4.10.2010, passed by State Consumer Disputes Redressal Commission, Panchkula (for short, as ''State Commission '') vide which appeal of Respondents/O.Ps was allowed and complaint filed by Petitioner/Complainant before the District Consumer Disputes Redressal Forum, Faridabad (for short as "District Forum ") was dismissed.
BRIEF facts are that petitioner was allotted plot No. 2342 in Sector 2 HUDA, Faridabad, vide allotment letter dated 18.11.1998. Petitioner deposited 25% of the total tentative price in installments within time as per terms and conditions of the allotment letter. On receipt of letter dated 30.10.2000 issued by the respondents for demand at enhanced price of the plot, petitioner surrendered his plot due to compelling circumstances by moving an application before the Estate Officer, Faridabad, on 13.11.2000. On receipt of the application for surrender of the plot, respondents refunded the deposited amount to the petitioner, as per their policy after deducting 10% earnest money, vide cheque dated 1.12.2000, which was received by the petitioner without any protest. Thereafter, petitioner filed complaint praying that; "Respondents be directed to restore the plot No. 2342 total area measuring 209 sq. mtrs., in sector-2, Faridabad for alternative plot in the same area, same size on same price be allotted to the complainant and pay Rs.2,00,000/- towards harassment and mental agony and further be prosecuted under the Consumer Protection Act in the interest of Justice ".
IN the written statement respondents took the plea that the complainant had submitted an application for surrendering the plot in question of his own and requested for refund specifically stating therein that he was not in a position to pay the enhanced compensation. It was on the said request of the complainant that the answering respondents have deducted 10% from the deposited amount of the complainant and balance amount has been paid as per surrendered policy of H.U.D.A. However, it has been admitted that plot in question was allotted to the complainant vide Memo dt. 18.11.1998. It is also the plea of the respondents that enhancement is always demanded since the respondents are required to pay the compensation amount as per the orders of various courts under the Land Acquisition Act to the bustees whose land have been acquired with the purpose to carve out the sector. It is also the plea of the respondents that the development work is a very lengthy process and sometime it takes much more time than expected. Only because of this a facility was provided in clause 6 of the letter of allotment that till offer of possession, no interest on the installment shall be charged.
DISTRICT Forum, vide order dated 26.10.2005 while allowing the complaint held; "(i) The respondents are ordered to pay interest @ 12% p.a. on the deposit of the complainant w.e.f. its deposit till the date on which the amount was refunded after deducting 10% amount of the total tentative price. (ii) The respondents are further ordered to refund 10% deducted amount of the total tentative price of the plot deducted from the deposited amount of the complainant along with interest @ 12% p.a. w.e.f. its deduction till its adjustment towards the amount of the price of the plot which is now to be allotted to the complainant. (iii). The respondents are also ordered to pay Rs. 50,000/- on account of mental agony and harassment to the complainant. The respondents are further ordered to pay Rs.5,000/- as litigation expenses to the complainant. However, it is also ordered that the total amount which is now refundable by the respondents to the complainant may be adjusted towards the price of the plot now to be allotted as per the order of the Forum. Balance amount, if any, remains payable towards the price of the plot now to be allotted, that can be recovered from the complainant in easy balance installments every installment is payable with a gap of six months. It is made clear that the first installment will be payable after the delivery of the physical possession of the plot now to be allotted. (iii) The respondents are also ordered not to charge any kind of interest, penalty or compound interest or extension fee uptil the period of delivery of the physical possession of the plot now to be allotted ".
Aggrieved by the order of District Forum, respondents filed appeal before the State Commission which allowed its appeal and consequently dismissed the complaint.
IT is contended by learned counsel for the petitioner that dismissal of petitioner ''s complaint in the grab of the alleged refund of the amount after deduction of 10% of the price of the plot by the respondents, is unsustainable in the eyes of the law. IT is further contended that while refunding the aforesaid amount, respondents had not intimated to the petitioner the basis of making the deductions and also the alleged HUDA policy was not explained to the petitioner. In fact, no official order guided by reasons to that effect regarding the refund of the deposited amount after making the alleged deduction was issued by the respondents. Therefore, the alleged deduction made by respondents on the deposited amount is illegal, arbitrary and untenable in the law. In this view of the matter, alleged surrender of the plot by the petitioner as had been dealt in the impugned judgment is improper, unjust and illegal. In support of its contentions, learned counsel has relied upon the following judgments; (i) Haryana Urban Development Authority Vs. Vijay Aggarwal, 2004 (2)CPR 76 (SC); (ii) Haryana Urban Development Authority Vs. Shanti Devi I(2005) CPJ 6 (SC); (iii) State of Nagaland Vs. Lipok AO and Others, (2005) 3 Supreme Court Cases 752; (iv) Ghaziabad Development Authority Vs. Balbir Singh, (2004) 5 Supreme Court Cases 65 ; (v) Laxmi Engineering Works Vs.P.S.G. Industrial Institute (1995) 3 Supreme Court Cases 583; (vi) Haryana Urban Development Authority Vs. M/s Zuari Industries, Letters Patent Appeal No. 88 of 2007, decided by High Court of Punjab and Haryana on 20.3.2009; (vii) H.U.D.A. Vs. Sanjeev Aggarwal, RP No. 3394 of 2009, decided by this Commission on 17.2.2010; (Viii) HUDA Vs. Udey Raj Singh, II (2010) CPJ 34 NC; (ix) HUDA Vs. Des Rattan Dutta, RP No. 4361 of 2009, decided by this Commission on 20.07.2010; (x) GDA Vs. Alok Chandra Sharma II (2011) CPJ 158 (NC) and (xi) Ghajiabad Development Authority Vs. Ramesh Chandra Pandiya, I (2009) CPJ 53 (SC)
ON the other hand, it is contended by learned counsel for the respondents that petitioner surrendered the plot voluntarily and as such consumer complaint is not maintainable. There is no infirmity or illegality in the impugned order. State Commission, in its impugned order observed; "The sole controversy involved in the present appeal is whether the respondent-complainant falls within the definition of ''Consumer '' and whether the complaint filed by the complainant before the District Forum was within limitation. The answers to both these questions are in negative. The reasons stated for the same are as under :- The Hon ''ble High Court of Punjab and Haryana in case Haryana Urban Development Authority Versus M/s Zuari Industries, 2009(3) R. C. R. (Civil) 104 (DB), has held as under:- "Plot allotted to petitioners by HUDA-- Petitioner surrendering the plot and taking refund-Thereafter petitioner has no right to get return of surrendered plot " "Residential plot allotted to petitioner by HUDA--Petitioner did not complete construction for five years -Petitioner surrendering the plot to HUDA and taking refund of 90% of amount paid by him towards price of plot-Thereafter petitioner again making a request for return of surrendered plot-Request rightly turned down. "
"A writ petition filed by petitioner and unnecessary dragged a party into litigation which was nothing but abuse of process of law-Petition dismissed- Cost of Rs.50,000/- imposed ".
The facts and circumstances of the present case are fully attracted to the case law cited above. Admittedly, the petitioner had surrendered the plot voluntarily. In view of the above cited case, the petitioner has no right to ask for allotment of the plot as he has already received the refund vide cheque dated 1.12.2000, and therefore, he cannot be termed as ''Consumer '' of the respondents. Another aspect for consideration is that the petitioner had surrendered the plot on 13.11.2000 and the deposited amount was refunded to him on 1.12.2000, whereas complaint was filed by the petitioner on 23.5.2005. As per section-24-A of the Consumer Protection Act, 1986 (as amended upto date) a period of two years has been provided to file complaint. Thus, the complaint was not maintainable being barred by limitation. Reference may be made to case law cited as Kandimalla Ragavaiah & Co. Vs. National Insurance Co. Ltd. and another, 2009 CTJ 951( Supreme Court) (CP) wherein the Hon ''ble Supreme Court has held that:- "Recently, in State Bank of India V.B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP)=JT 2009(4) SC 191, this Court, while dealing with the same provision, had held: "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 24-A 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 there under. As a matter of law, the consumer from 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 24-A 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 the instant case the complainant has not moved any application to seek condonation of delay and as such the District Consumer Forum has committed great error while allowing the complaint, which was hopelessly, barred by time and as such the impugned order is not sustainable in the eyes of law. As a sequel to our aforesaid discussion the complainant is not entitled for any relief. Accordingly, this appeal is accepted, impugned order is set aside and complaint is dismissed ".
First question which arise for consideration is as to after surrendering the plot voluntarily, can petitioner file a consumer complaint.
SURRENDER letter dated 13.11.2000 in question read as under; "It is submitted that I have allottee of plot No. 2342, Sector-2, Faridabad. I am unable to make the payment of enhancement and instalment. So it has been submitted I hereby desire to surrender the plot No. 2342, Sector-2, Faridabad. So you are requested to refund the payment of deposit amount with interest, as there is no development ".
AS per above letter, petitioner had surrendered the plot since he was unable to make the payment of enhanced installments and as there was no development. Once the petitioner has received the entire deposited amount unconditionally and has also got the cheque encashed, under such circumstances, petitioner ceases to be ''Consumer '' as per the Consumer Protection Act, 1986. Relationship of consumer and service provider between the parties if any, came to end the moment petitioner accepted the refund amount unconditionally and got the cheque encashed.
SECONDLY, the refund amount was received by the petitioner vide cheque dated 1st December, 2000, whereas complaint before the District Forum was filed in the year 2005. It is really surprising as to how the District Forum had entertained this time barred complaint.
IN this regard, reference may be made to the decision of Apex Court in V.N. Shrikhande (Dr.) v. Anita Sena Fernandes 2011 CTJ 1 (Supreme Court) in which the Court held; "Section 24A(1) contains a negative legislative mandate against admission of a complaint which has been filed after 2 years from the date of accrual of cause of action. IN other words, the consumer forums do not have the jurisdiction to entertain a complaint if the same is not filed within 2 years from the date on which the cause of action has arisen. This power is required to be exercised after giving opportunity of hearing to the complainant, who can seek condonation of delay under Section 24A(2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under section 24A(1). If the complaint is per se barred by time and the complainant does not seek condonation of delay under Section 24A (2), the consumer forums will have no option but to dismiss the same. "
It is not the case of the petitioner that he had filed any application for condonation of delay in filing of the complaint before the District Forum.
NONE of the judgments relied upon by the learned counsel for petitioner are applicable to the facts of the present case.
SINCE, complaint of the petitioner before the District Forum was barred by limitation, State Commission rightly dismissed the complaint. Thus, present revision petition which is having no merit and the same being without any legal basis, is hereby dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only).
PETITIONER is directed to deposit the cost of Rs.10,000/- (Rupees Ten Thousand Only) by way of demand draft in the name of "Consumer Legal Aid Account " within four weeks from today.
IN case, petitioner fails to deposit the cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization. Pending application if any, also stands disposed of. List on 2.11.2012 for compliance.