Per Mr.B.S.Wasekar, Hon’ble President
1) The present complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986. According to the complainant, he had purchased office premises under the agreement dated 12th April, 2007 from the opponent. He had filed CC/11/28 before this Forum and this Forum allowed it vide order dated 26th May, 2011. From May-2007, the complainant has not received the possession of the office premises though the entire amount was paid to the opponent. Therefore, the opponent is liable to compensate the complainant for 56 months at the rate of Rs.25,000/- per month and increased at the rate of 10% after every twelve months. Therefore, the complainant has filed this complaint for the recovery of Rs.14 Lakhs towards compensation for 56 months and cost of the proceeding Rs.25,000/-.
2) The opponent appeared and filed written statement. According to the opponent the disputed premises is the commercial premises therefore complaint is not maintainable in this Forum. It is further submitted that the complaint is barred by limitation as the sale was completed in the year-2007 and the complaint is filed on 27th December, 2011. It is also barred by principle of res judicata as earlier complaint No.CC/09/64 filed by the complainant was dismissed by the Hon’ble State Commission on the ground that the complainant is not a consumer. Again, the complainant has filed another complaint before this Forum bearing No.CC/11/28. The said complaint was allowed. The opponent preferred appeal bearing No.A/11/961 before the Hon’ble State Commission and the same is pending. (The appeal is allowed vide order dated 11th June, 2013) Therefore, the complaint be dismissed with cost.
3) The opponent vide application dated 16th July, 2013 with a prayer to dismiss the complaint as earlier complaint No.CC/11/28 is dismissed by the Hon’ble State Commission vide order dated 11th June, 2013. The Hon’ble State Commission has observed that the complainant is not a consumer. The opponent has produced the copy of judgment of the Hon’ble State Commission in First Appeal No.A/11/961. Copy of this application was given to the complainant and the complainant was directed to file his reply. The application was acknowledged by the advocate of the complainant on the 16th July, 2013. The complainant failed to file reply to this application therefore the matter was fixed for final hearing. The learned advocate for the complainant filed written notes of argument on 8th January, 2014. At the time of oral argument, the complainant or his advocate was not present therefore argument of the learned advocate for the opponent was heard. After going through the record, following points arise for our consideration.
POINTS
Sr. No. | Points | Findings |
1) | Whether the complaint is maintainable ? | No |
2) | Whether the complaint is barred by the limitation ? | Yes |
3) | Whether the complainant is entitled for the relief as prayed ? | No |
4) | What Order ? | As per final order |
REASONS
4) As to Point No.1 :- Admittedly, earlier, the complainant had filed CC/11/28 before this Forum against the present opponent and the same was allowed vide judgment dated 26th May, 2011 by this Forum. Copy of the judgment is on record. The said judgment was challenged before the Hon’ble State Commission in First Appeal No.A/11/961. The Hon’ble State Commission vide order dated 11th June, 2013 allowed the appeal and dismissed the original complaint. The Hon’ble State Commission observed that the disputed premises are office premises. It is for commercial purpose. Therefore, the complainant is not the consumer under Consumer Protection Act, 1986. On this ground, the appeal was allowed and the original complaint was dismissed. The present complaint is filed on the same set of facts. In the complaint itself, the complainant has stated that he had purchased office premises. The disputed premises are commercial premises. In view of the above stated judgment of the Hon’ble State Commission, the complainant is not the consumer therefore the present complaint is not maintainable before this Forum. The opponent has filed application dated 16th July, 2013 and produced the copy of the judgment of Hon’ble State Commission. The complainant was directed to file his reply but the complainant was not filed his reply. Not only that, in spite of receipt of application dated 16th July, 2013, the learned advocate for the complainant has not stated anything in his written notes of argument dated 8th January, 2014. Thus, the complaint is not maintainable before this Forum.
5) As to Point No. 2 & 3 :- In complaint, the complainant has stated that he had paid the full and final payment in May-2007 but the opponent failed to handover the possession. Therefore, he has filed this complaint for compensation of 56 months at the rate of Rs.25,000/- per month. He has claimed compensation of Rs.14 Lakhs since May-2007. The complaint is filed in the year-2011 i.e. after four years. The complaint is apparently barred by limitation. In complaint, para 17, the complainant has stated that he had received the order from this Forum and thereafter he has filed this complaint. Therefore, it is within limitation. As stated above, earlier complaint is already dismissed by the Hon’ble State Commission. Therefore, he is not entitled to take any benefit of the earlier complaint. Thus, the complaint is apparently barred by limitation.
6) Thus, the complaint is not maintainable. It is also barred by limitation. Therefore, the complainant is not entitled for any relief. Hence, we proceed to pass the following order.
O R D E R
1) Complaint stands dismissed.
2) Parties are left to bear their own costs.
3) Inform the parties accordingly.
Dated 7th April, 2014
