II (2013) CPJ 10A (NC) (CN) NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI Hon ble Mr. Justice V.B. Gupta, Presiding Member PARMOD KUMAR MALIK Petitioner versus HARYANA URBAN DEVELOPMENT AUTHORITY & ORS. Respondents Revision Petition No. 2780 of 2011 with (IA No. 1 of 2011, For Stay) from Order dated 29.4.2011 in Appeal No. 2453/2005 of State Commission, Haryana, Panchkula Decided on 8.11.2012 JUDGMENT V.B. Gupta, Presiding Member Aggrieved by order dated 29.4.2011, passed by Haryana State Consumer Disputes Redressal Forum, Panchkula (short, State Commission ) petitioner/complainant had filed the present revision. 2. Brief facts are that petitioner had applied for allotment of 325 sq.mtrs. plot in Sector 12-A Gurgaon vide his application dated 29.10.1981 accompanied with draft which was registered at Sr. No.2067. 3. The grievance of petitioner before District Consumer Disputes RedressalForum, Faridabad (short, District Forum ) was that respondents/opposite parties did not tell him about the status of his application despite repeated visits to their office. Hence, respondents did not include his application while conducting draw of lots of Sector 12-A, Gurgaon. When petitioner approached the respondents, he was assured that he would be allotted some other alternative plot. However, the same has not given to him nor the earnest money deposited by him was refunded. Thus, alleging it a case of deficiency in service on the part of the respondents, petitioner sought direction to the respondents to hand over possession of some alternative plot in Sector 57, Gurgaon at the same rate at which he was to be allotted plot in Sector 12- A, Gurgaon. Further direction was sought to pay interest @ 18% per annum on the deposited amount from the date of deposit till actual payment ; to pay compensation of Rs.70,000/- on account of mental agony and harassment and Rs.5,500/- as litigation expenses. 4. Respondents in their written statement took preliminary objections that, petitioner is not a consumer and the complaint is barred by limitation. They further took the plea that District Forum, Faridabad had no jurisdiction to entertain the complaint, as the plot was applied at Gurgaon. On merits, respondents has stated that the petitioner remained un-successful in draw of lots held for allotment of plots in Sector 12-A, Gurgaon. Thus, denying any kind of deficiency in service on the part, they prayed for dismissal of the complaint. 5. District Forum, vide its order dated 5.9.2005, allowed the complaint and passed the following order ; 1. The respondents are ordered to allot a plot of 325 sq.mtrs. to the complainant in Sector 12-A, Gurgaon, if any plot is lying un-allotted
and vacant in this sector, on the similar price, which was fixed, when the applications were demanded in the year 1981 and the complainant has applied for the same. In the case, the area of the plot is found increased or decreased, the price of the same be also charged or to pay on the similar pattern. 2. The respondents are also ordered to pay interest @ 12% p.a. on the amount which was deposited by the complainant along with application to the respondents w.e.f. its deposit till the delivery of the plot now to be allotted to the complainant. This whole amount along with principle amount of Rs.5,817.50 to be adjusted towards the price of the plot now to be allotted to the complainant. It is, however, also ordered that in case any plot is not found un-allotted or vacant in Sector 12A, Gurgaon, then allot an plot on the similar price to the complainant in any other developed sector Gurgaon. 3. The respondents are also ordered to pay Rs.20,000/- on account of mental agony and Rs.2,000/- as litigation expenses to the complainant. 6. Aggrieved by the order of the District Forum, respondent filed an appeal. State Commission, allowed the appeal, vide its impugned order. 7. Being aggrieved by the impugned order, petitioner has filed this revision. 8. I have heard learned counsel for the petitioner and have gone through the record. 9. The case of the petitioner is that the scheme for residential plot was advertised by the Respondent/Authority, Panchkula, but petitioner has collected the application form from Faridabad. As such, cause of action has arisen in Faridabad. 10. Other contention is that respondents have withheld the earnest money of the petitioner for several years, until they refunded the same in July, 2005 and that too, after filing of the complaint by the petitioner. Respondents never intimated the petitioner regarding draw of lots and its venue, at any point of time nor refunded the earnest money till the filing of the consumer complaint. Therefore, the cause of action is a continuing one. Thus, the complaint has been filed within the prescribed time. In support, learned counsel has relied upon the followingjudgments ; (i) Housing Board, Haryana Vs. Inderjit Garg, (RP No.3263 of 2011) decided by this Commission on 29.2.2012 ; (ii) Mangal Chand Pawan Kumar Vs. Oriental Insurance Co. Ltd. & Ors. II (2010) CPJ 118 (NC) and (iii) Royal Jordanian Airlines & Ors. Vs. Nanak Singh & Ors. III (2010) CPJ 175 (NC) 11. Short question for determination is as to whether, petitioner has filed the consumer complaint within the period of limitation or not. 12. State Commission, in this regard has observed ;
On behalf of the appellants-opposite parties three fold arguments have been raised by Shri Raman Gaur, Advocate. Firstly, that the complainant had applied for allotment of plot in the year of 1981 and the instant complaint was filed on 10.5.2005. Secondly, the complainant had applied at Gurgaon whereas the complaint was filed at Faridabad and the District Forum, Faridabad had no territorial jurisdiction to entertain and try the complaint. Lastly, that merely by applying for allotment of a plot by depositing the earnest money, the complainant cannot be termed as a Consumer unless the plot is allotted to him. We find force in the contention raised by Shri Raman Gaur, learned counsel appearing on behalf of the appellants-opposite parties. Undisputedly, the complainant had submitted his application to the Estate Officer, HUDA, Gurgaon on 29.10.1981 and filed the instant complaint on 10.5.2005 i.e., after more than 23½ years. As per the provisions of Section 24A of the Consumer Protection Act, 1986 (hereinafter referred to as the Act, 1986), a complaint can be filed within two years from the date of cause of action which in the instant case firstly had accrued to the complainant on 29.10.1981 when he had applied for allotment of plot in Sector 12-A, Gurgaon. It is also admitted by the complainant that he visited the opposite parties several times and also had written a letter dated 19.4.1989 to the opposite parties to know the status of his application but the opposite parties did not supply any information. Thus, from the date of cause of action which had accrued to the complainant in the year 1981 when he applied for allotment of plot and then in the year 1989 when he had written a letter to the opposite parties to know the status of his application, the instant complaint was hopelessly barred by limitation. There is no explanation on behalf of the complainant for not filing the complaint within two years from the date of cause of action. The plea of the complainant that the opposite parties had assured him to allot an alternative plot, is not tenable in the eyes of law as it lacks evidence. While dealing with such a controvery, the Hon ble Supreme Court in case cited asstate Bank of India Vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, wherein it has been held that: 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 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. In a recent judgment cited as V.N. Shrikhande (Dr.) Vs. Anita SenaFernandes 2011 CTJ 1 (SC) (CP) the Hon ble Supreme Court has held that : Section 24A (1) contains a negative legislative mandate against admission of a complaint which has been filed after two years from the date of accrual of cause of action. In other words, the consumer forums to not have the jurisdiction to entertain a complaint if the same is not filed within two 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 compliant 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. The instant case is fully covered by the authoritative pronouncements in State Bank of India Vs. B.S. Agricultural Industries (supra) and V.N. Shrikhande (Dr.) Vs. Anita Sena Fernandes (supra). The next question for consideration is that the District Forum, Faridabad had no territorial jurisdiction to entertain and try the complaint as the plot was applied by the complainant at Gurgaon. In this regard, reference is made to case law cited as Sonic Surgical Vs. National Insurance Company Ltd. 2010 CTJ 2 (SC) (CP), wherein the Hon ble Supreme Court has held that :- Incidence of fire in the appellant s godown at Ambala complaint claiming compensation from the respondent allowed by the State Commission, Union Territory, Chandigarh National Commission set aside the said order accepting the appeal of the respondent on the ground that the State commission, Union Territory had no jurisdiction to entertain and adjudicate the complaint Hence, the present appeal Admittedly no cause of action arose at Chandigarh Insurance policy taken at Ambala, fire broke out in the godown at Ambala, and the claim for compensation also made at Ambala cause of action arose in 1999 and the complaint regarding the same filed in 2000 Amendment to Section 17(2) not to apply as the amended section came into force with effect from 15.3.1003 Contention that the respondent insurance company having a branch office at Chandigarh, the compliant could have been filed in Chandigarh under the amended Section 17 (2) rejected as unacceptable it would have led to absurd consequences of bench hunting, meaning thereby that even if a cause of action has arisen in Ambala, then too the complainant can file a complaint in Tamil Nadu or Guwahati or anywhere in India cause of action having arisen at Ambala, the State Commission,
Haryana alone to have jurisdiction to entertain the complaint Impugned order of the National Commission agreed with Appeal dismissed. In para no.9 and 10 of the above said judgment in Sonic Surgical s case (supra),the Hon ble Supreme Court has held that; 9. It will lead to absurd consequences and lead to bench hunting. In our opinion, the expression branch office in the amended Section 17 (2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section (2) (b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity. 10. In the present case, since the cause of action arose atambala, the State Consumer Disputes Redressal Commission, Haryana alone will have jurisdiction to entertain the complaint. The facts of the instant case are fully attracted to Sonic Surgical case (supra) in view of the facts narrated above. Merely, that there is office of HUDA at Faridabad, does not give any right to the complainant to file complaint at Faridabad and thus the complaint was not entertainable before the District Forum, Faridabad. Lastly, it is admitted case of the parties that no plot was allotted to the complainant. Merely, that the complainant had applied for plot does not give him any right to be considered as a consumer unless the plot was allotted to him. Reference in this regard is made to case law cited as Punjab Urban Planning and Development Authority and another versus KrishanPal Chander, 2010 CTJ 415 (CP) (NCDRC) wherein the Hon ble Apex Court has held that :- The filing of application for allotment of a flat/plot grants the proposed allottee only a right to be considered for allotment. He becomes a consumer under the Consumer Protection Act only after he is allotted a flat/plot. The facts of the instant case are fully attracted to Krishan Pal Chander s case (supra). In view of our aforesaid discussions it is established that the complaint was hopelessly barred by limitation in view of Section 24A of the Consumer Protection Act, 1986, District Forum, Faridabad was not having jurisdiction to entertain and decide the compliant as the plot was applied at Gurgaon and also that the complainant is not the consumer of the opposite parties because no plot was allotted to him. The District Forum has not considered all these legal aspects of this case and thus committed grave error in allowing the complaint by passing the impugned order which is not sustainable in the eyes of law. For the reasons recorded above, this appeal is accepted, the impugned order is set aside and the complaint is dismissed. 13. As per averments made in the complaint, petitioner had applied for allotment of the plot in the year 1981. However, in the entire complaint, petitioner has nowhere stated as to when the cause of action arose. After 1981, petitioner remained in deep slumber till 1989. Thereafter, he woke up only in the year 2005, when he filed the
second complaint before the District Forum. Thus, on the face of it, the complaint filed before the District Forum was hopelessly time barred. District Forum, throwing the law of limitation, especially Section 24A of the Act, to the winds, entertained the hopelessly time barred complaint illegally. This act of District Forum was patently wrong and without jurisdiction. State Commission, under these circumstances, rightly dismissed the complaint of the petitioner and accepted the appeal of the respondents. 14. None of the judgments cited by learned counsel for the petitioner are applicable to the facts of the present case. 15. The impugned order passed by the State Commission is perfectly valid and no illegality or irregularity has been committed by it, in passing the impugned order. The present petition being without any legal basis is meritless and same is dismissed with cost of Rs.10,000/-. 16. Petitioner is directed to deposit the costs by way of demand draft for a sum of Rs.10,000/- in the name of Consumer Legal Aid Account, within four weeks from today. 17. In case, petitioner fails to deposit the said cost within the prescribed period, he shall also be liable to pay interest @ 9% p.a., till realization. 18. List the matter for compliance on 14.12.2012. Appeal allowed.