T.K.GANESAN vs V.K.G.PONNUSAMY NADAR

THE opposite party against whom an award has been passed by the District Forum is the appellant. THE complainant has entered into an agreement with the opposite party on 30.10.1989 for construction of a building for him at a cost of Rs. 75,000/-. THE construction must be finished within 3 months from the date of the agreement. An advance of Rs. 5,000/- was paid. Balance amount was to be paid in instalments corresponding to the stages of construction. Now the case of the complainant is that he had paid the entire amount but the opposite party has finished construction of the second stage i.e., up to roof and above that he has not constructed. Several demands for finishing the construction had no effect. THErefore the complainant himself put up the further construction at a cost of Rs. 31,171/-. This amount the opposite party was to pay to the complainant but he declined. THEre were panchayats and in the panchayat he promised to pay but he did not keep up his promise. Alleging deficiency in service on the part of the opposite party the complaint has been filed for directing the opposite party to pay to the complainant a sum of Rs. 31,171/- as the cost incurred by the complainant.

THE opposite party contended that he had completed the construction even of the 3rd stage but the complainant has paid him a total sum of Rs. 24,000/- and there is still a sum of Rs. 1,000/- due from him. THEre was no deficiency in service on his part. Hence the complaint was liable to be dismissed. The District Forum accepted the case of the complainant and it directed the opposite party to pay to the complainant a sum of Rs. 31,000/- with interest @ 12% p.a. from 1.12.1995 and also a sum of Rs. 1,000/- as cost of the proceedings.

Now in the appeal the learned Counsel for the appellant contended that whatever may be the merits of the case the claim is clearly barred by limitation and the District Forum has not properly considered this question and erred in giving an award. On a careful consideration of the matter it appears to us that this submission has got much force. The agreement is dated 30.10.1989. As per this agreement the construction should have been put up by the opposite party within 3 months. According to the complainant the construction has not been put up within 3 months. Even on 1st February, 1990 the cause of action has arisen. However, it is the case of the complainant that because the opposite party did not put up the construction of the 3rd stage he himself put up that construction spending a sum of Rs. 31,171/- and he finished that construction on 26.1.1991. Even if we take that date as the date of cause of action, the complaint should have been filed even if the limitation period has to be taken as 3 years on 27.1.1994. But the complaint has been filed only on 1.2.1995. Regarding the point of limitation the District Forum has simply stated that the opposite party had promised to pay the amount demanded by the complainant before the Panchayat and considering that the complaint is in time. But the District Forum has not referred to any date of the panchayat. There is no evidence to show that the opposite party has acknowledged the liability or promised to pay any amount to the complainant. Therefore there is no merit in the observation of the District Forum that the opposite party had promised to pay in the panchayat. Thus we find that the complaint is clearly barred by limitation.

IN this view of the matter, we allow the appeal; set aside the order of the District Forum and dismiss the complaint. However, there will be no order as to costs. Appeal allowed.