Rise Consortium India Private Ltd vs Wing Commander V.K.Chawla

THIS appeal is directed against the order dated 25.09.2007 of the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, "the State Commission") in complaint case no. 4 of 2001. For the sake of convenience, we refer to the parties in accordance with their status before the State Commission.

THE appeal was first filed as a revision petition which, according to the opposite parties (in short, "the OPs) was after a delay of only 33 days. An application for condonation of this delay was also filed with the following causes for delay: "3. That this application of condonation is being moved along with the revision petition despite the fact that no certified copy of the order was ever received by the applicant/ revisioner and neither were any summons received in the subsequent petition subjudice before the Trial Court i.e.. Hon"ble State Commission, Haryana, as lastly after the advancement on arguments, the matter was reserved but no copy of the impugned order was ever received by the applicant/ revisioner. On persistent follow ups and tracing of the case file, it came to the knowledge that the complaint has been decided on 25.09.2007 and subsequently an execution application no. 2 of 2009 is also subjudice and is fixed for service to the Judgment Debtor, the service of the same is still not effected to the applicant/ Judgment Debtor. However, it has come to the knowledge that the next date fixed in the said matter is 22.10.2009 for service. THEreafter, the counsel of the applicant applied for certified copy of the impugned order and the same was received on 29.05.2009 and consequently this revision petition is now being filed on 01.10.2009 as the applicant to whom the copy of the impugned order was sent was severely ill for couple of months and was bedridden and could not take decision with regards to filing of the said revision petition. Now this revision petition is being filed on 01.10.2009 and if 90 days period is to be calculated from 25.05.2009, the limitation ceases on 28.08.2009 but on account of illness of the applicant/ revisioner and procedural delay, this revision petition is being filed on 01.10.2009 i.e., after a delay of 33 days. 4. That the delay of 33 days in filing the accompanying petition is purely unintentional and there are just and sufficient grounds justifying and warranting the condonation of delay and deciding the present case on merits".

It is obvious that the order of the State Commission passed in the above-mentioned complaint could be challenged only by way of an appeal under section 19 of the Consumer Protection Act, 1986 (in short, "the Act"), which stipulates the period of limitation of 30 days from the date of the order being challenged. If this period of limitation is taken into account, the delay in filing the appeal would be of 93 days.

It is also seen from the original records of the State Commission that the free certified copy of the impugned order was dispatched on 09.10.2007 to the parties. There is no reason to disbelieve this endorsement of the office of the State Commission. In fact, the presumption is that the official records of the State Commission reflect true facts and hence, there is no reason to believe that the OPs received the certified copy of the impugned order only on 29.05.2009, after making a specific application therefor. Even if this date is accepted, the appeal should have been filed by the end of June 2009 as against 01.10.2009. The main ground for this delay is that the authorised representative of the OPs was severely ill. No proof of this ailment has been filed with the application for condonation of delay. The causes put forth by the authorised representative of the OPs to explain this delay are not, in our view, sufficient.

ON the question of delay/limitation period stipulated in the relevant provisions of the Act and the Consumer Protection Regulation 2005, the Apex Court has laid down explicit guidelines in its judgment in the case of State Bank of India vs B. S. Agriculture Industries (I) [(2009) 5 SCC 121]. The relevant observations are produced below: "11. Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the Consumer Fora thus: "24A. 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." It would be seen from the aforesaid provision that it is peremptory in nature and requires the 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 legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. 12. 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 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."

This view was relied upon/reiterated by the Apex Court itself in two more recent cases, viz., Kandimalla Raghavaiah & Co. v National Insurance Co. & Another [(2009) 7 SCC 768] and V. N. Shrikhande (Dr.) v Anita Sena Fernandes [(2011) 1 SCC 53]. In this view of the matter, the appeal is liable to be dismissed only on the grounds of delay which has not been done to explain which sufficient cause has not been shown.

EVEN then, we have gone through the records of the case and carefully considered the submissions made by the authorised representative of the OPs/ appellant and the complainant who was present in person. Perusal of the impugned order of the State Commission clearly shows a very detailed appreciation of all the facts, material and evidence brought on record. (i) The complaint pertained essentially to alleged deficiency in service on the part of the OPs in the construction of a house in Gurgaon, entrusted by the complainant to the OPs on a turn-key basis. It was the case of the complainant before the State Commission that the OPs failed to construct the house in accordance with the agreed specifications and time frame. One of the various alleged deficiencies in the construction of the house was that the "Chajja" over the driveway collapsed on 22.08.2000. The complainant engaged an independent structural engineer/consultant to visit the site who opined that not only the design of the "chajja" was faulty but the entire structure constructed till that time was also weak. According to the opinions of these independent technical experts, the construction design had many lacunae. (ii) The complainant also alleged that for various reasons, the OPs withdrew from further construction of the work in September 2000. This was unilateral abrogation of the agreement that the parties had signed regarding the construction of the house in question. The complainant then asked the OPs to give an account of the expenses against the advance payment that he had made. The OPs handed over a letter dated 14.09.2000, justifying the expenditure of Rs.12,72,179/- and claiming an additional amount of Rs.87,179/- payable by the complainant to OPs. In addition to this, the OPs also claimed a sum of Rs.25,000/- as the outstanding amount of architectural fees. According to the complainant, he then engaged an independent authorised Engineer to evaluate the works carried out till 13.09.2000. The report of this Engineer showed that the OPs had carried out works worth Rs.5,94,905/- as against the sum of Rs.12,20,000/- paid by the complainant. On the basis of the reports of independent experts, the complainant claimed that there were major flaws in the design of the works carried out by the OPs which would require special repairs and modifications. (iii) In his complaint, the complainant, therefore, prayed for an award of Rs.12,03,785/- on various counts including unspent balance, damages towards mental agony and personal harassment, etc. (iv) The complaint was strongly contested by the OPs on each count. The expert opinion were challenged mainly on the ground that the affidavits of the experts concerned had not been filed in support of their opinion. They also alleged that repeated interferences in their professional working, including actual construction, by the complainant and his family whose views were quite frequently different. Thus, it was the complainant who had committed a breach of the contract/ agreement due to multiple interferences made by him and his family, as a result of which the OPs were prevented from carrying out the work undertaken by them and were forced to deviate from the approved architectural design. On these grounds, the OPs prayed for dismissal of the complainant.

After detailed discussion of the evidence and material brought on record, the State Commission accepted the application of the complainant and appointed a Local Commissioner to once again ascertain the value of the works actually executed by the OPs, in accordance with the specifications etc., mentioned in the agreement dated 01.06.2000. After reproducing the report of the Local Commission, the State Commission recorded the following observations in the impugned order: "No objection to the above report of the Local Commissioner has been filed by an of the parties. The above report clearly brings out the details of the work which had been carried out and also the work which remains to be completed. In terms of the agreement item no. 4, 6, 7, 8 and 9 wood work for windows, doors, lintels, plastering, plumbing and electric work had not been executed at that time. At the same time this report nullifies the stand of the complainant with regards to the quality of the material used. It has been mentioned in the report that concrete work at the site was quite good. The material used for construction of the house such as bricks, cement, stone and glass was found to be of good quality. He has definitely concluded that 2"% work column should be added and 38% work as per agreement drawn out by both the parties have been carried out at site. His other significant findings are that the built up area as per structural design was 343 sq.mtrs., whereas the actual built up area was 357 sq.mtrs., as submitted by the opposite party no. 2 and he has not differed with this submission of opposite party no.2".

AFTER further discussion of the evaluation of the work executed by the complainant as well as the OPs, the State Commission came to the following findings: "The fact remains that the opposite parties had admitted that it had received in all total amount of Rs.12,72,179/- out of which Rs. 1.00 lakh was returned to the complainant in order to help him to save tax benefit which practice of the complainant has been deprecated by the opposite parties. The opposite parties had claimed Rs.87,179/- due from the complainant. The above stated valuation furnished on record cannot be accepted at its face value because it is clearly established on record that the opposite parties have not completed the entire work as per terms of the agreement dated 01.06.2000 as noticed by the Local Commissioner in this report dated 11.05.2001. The Local Commissioner has returned a categorica finding that only 38% work had been carried out by the opposite parties. The total amount payable by the complainant to the opposite parties on completion of the construction of the house was Rs.16 lakhs as per agreement arrived at between the parties but in all he had paid Rs.11,85,000/- upto the date when the opposite parties had left the work which comes to Rs.6,08,000/-. The opposite parties had received Rs.11,85,000/-. The opposite parties are not entitled to receive excess amount of Rs.87,179/- as stated in Annexure C- 4. Therefore, the opposite parties are duty bound to return Rs.5,77,000/- to the complainant which has been received in excess by the opposite parties, which shall be liable to be paid along with interest @ 12% per annum from 01.09.2000 till the actual date of payment as work was to be completed within three month as per agreement between the parties. The complainant has not produced any other evidence on record to establish the exact expense incurred for the repair carried out on account of collapse of the "Chajja". The amount of Rs.1,50,000/- claimed as expenses incurred on account of sub-standard unsafe structure, as such, is unfounded and is disallowed. The opposite parties has left the work on 13.09.2000. The complainant has not produced any other acceptable evidence on record which could establish that he had incurred damages of Rs.30,000/- for completing the work from 01.10.2000 to 30.04.2001 and for that reason the complainant is not entitled to receive Rs.2,10,000/- claimed as damages in this regard. With regard to the house rent claimed for 18 months on account of delay of seven months in completing the construction of the house, no receipts have been produced on record from the side of the complainant vide which the rent had been paid and for that reasons the complainant is not entitled to claim Rs.56,000/- from the opposite parties. No receipt with regard to the payment of Chowkidar for Rs.12,000/- for the period in question has been produced on record and for that reasons this amount cannot be allowed to the complainant. With regard to the reimbursement fee paid to the consultant and sanction of the plan charge, the complainant is not entitled to receive the same and the amount claimed in this regard in the complaint is disallowed. The complainant has claimed Rs.50,000/- as compensation on account of mental agony and harassment caused to him. But this amount cannot be allowed as the interest has been awarded and double benefit cannot be granted to the complainant under the law". Finally the State Commission gave the following directions: "For the aforesaid reasons, while accepting the complaint direction is given to the opposite parties to refund Rs.5,77,000/- to the complainant along with interest @ 12% per annum from 01.09.2000 till payment. In addition the complainant shall also be entitled to receive Rs.11,000/- as cost of proceedings. Rest of the claim made is declined".

THE parts of the impugned order reproduced above are proof enough of the detailed consideration by the State Commission of the allegations of the complainant as well as the deficiencies of the OPs and the material end evidence marshalled by each side. THErefore, in our view, no interference is called for with the well-reasoned order of the State Commission. As a result, the appeal is dismissed, both on account of un-condonable delay as well as lack of merit.