Purnima Patnaik vs Seven Hills Estates Ltd.

THIS revision petition challenges the order dated 23rd November 2010 passed by the Orissa State Consumer Disputes Redressal Commission, Cuttack (in short, "the State Commission") in FA No. 547 of 2009 For the sake of convenience, the parties are referred to by their status before the District Consumer Disputes Redressal Forum, Khurda, Bhubaneswar (in short, "the District Forum").

THE facts are described in detail in the impugned order of the State Commission. THE opposite party (OP) had floated a scheme for sale of housing plots at a place near Bhubaneswar in 1999. THE petitioner/complainant booked three plots, each costing Rs.24,000/-, payable in 30 monthly installments of Rs.800/-. THE complainant paid the first installments on 15.07.1999 and the last on 08.01.2002. THE OP wrote three separate letters, each dated 25.10.2002, informing the complainant that she had been allotted plots no. 64,65 & 66 and asking her to pay Rs.5000/- for each plot towards cost of execution of the sale deed and its registration. It is the complainant"s own case that on receipt of these letters, she visited the project site but was surprised to find that the site was different from what had been mentioned in the OP"s brochure, the plots had not been developed nor was their any boundary demarcation. According to her, despite her subsequent attempts she could not ascertain the detailed facts about the state of affairs from any representative of the Company nor she was able to get any documents. Ultimately, on 20.10.2003, she wrote to OP 1 (respondent herein) to supply detailed information and documents about the status of the plots in order to enable her to complete the registration requirements. It is also the case of the complainant that she did not receive any reply to this letter. However, it was on 13.07.2007, i.e., nearly four years from the date of preceding communication that she next wrote to OP 1 to refund the amount of Rs.72,000/- that she had paid along with interest @ 18% per annum, if OP 1 failed to register the sale of the plots in question in her favour by 16.08.2007. THEre was apparently no response to this letter which led the complainant to file a complaint before the District Forum on 05.10.2007. In the impugned order allowing the appeal of OP 1 and dismissing the complaint, the State Commission observed as under: "10. By the date the C.D. case was filed, i.e., 05.10.2007, the complaint had already become belated and barred by limitation as the cause of action arose in 2002 when the complainant herself visited the site and found the site to be quite different given in the brochure. Law is well settled that making of correspondence does not enlarge the period of limitation and writing of letter in the month of July 2007 and sending Advocate"s notice in the month of September 2007, cannot extend the period of limitation and in any view of the matter, the C.D. case filed by the complainant/ respondent was hopelessly time barred and the learned District Forum without hearing on the question of limitation when the complaint was filed had committed an error in entertaining the same. 11. When on the question of limitation, the C.D. Case of the complainant/ respondent is found to be not maintainable, we allow the appeal preferred by opposite party no. 1/ appellant, set aside the impugned judgment and order of the District Forum, Khurda at Bhubaneswar dated 28.01.2009 passed in C D case no. 477 of 2007 and direct dismissal of the said C D case".

I have heard Mr. Surendra Patnaik, Authorised Representative of complainant/petitioner. During the course of hearing, I made several attempts with the authorised representative to ascertain the reasons why the complainant failed to take any action after she wrote the letter dated 25.10.2002 to OP 1/respondent. Unfortunately, Mr. Patnaik was not able to state anything except vaguely repeating that the petitioner/complainant, being a woman, was unable to pursue the case.

THE State Commission is fully justified in holding that the complaint was filed before the District Forum after an inordinate delay without any explanation therefore, leave alone what would constitute "sufficient cause" under section 24 A of the Consumer Protection Act, 1986 ("the Act"). THE facts relating to the delay/prolonged inaction on the part of the complainant, as mostly admitted are quite stark. THE authorised representative of the petitioner/complainant was also not able to clarify if the complainant had even submitted an application for condonation of delay when she first filed her complaint before the District Forum. In a situation like this, there could be no question of condoning the delay in filing the complaint. This view of the State Commission is fully in accord with the law on the subject as laid down by the Apex Court in the case of State Bank of India vs B. S. Agricultural Industries (I) " II (2009) CPJ 29 (SC). In this case, the Apex court has observed as under: "7. Section 24 A of the Act, 1986 prescribes limitation period for admission of a complaint by the Consumer Fora thus: 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. 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 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 complainant 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 decided 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. 9. In Union of India and Another vs. British India Corporation Ltd., and others (2003) 9 SCC 50, while dealing with an aspect of limitation for an application for refund prescribed in Business Profits Tax Act, 1947, this Curt held that the question of limitation was a mandate to the Forum and, irrespective of the fact whether it was raised or not, the Forum must consider and apply it. 11. In a recent case of Gannmani Anasuya and Others vs Parvatinia Amarendra Chowdhary and Others, (2007) 10 SCC 296, this Court highlighted with reference to Section 3 of the Limitation Act that it is for the Court to determine the question as to whether the suit is barred by limitation or not irrespective of the fact that as to whether such a plea has been raised by the parties, such a jurisdictional fact need not be even pleaded".

In this view of the matter, there is no ground to interfere with the well-reasoned order of the State Commission under the provisions of section 21 (b) of the Act. The revision petition is, therefore, dismissed.