STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1.  The Chandigarh Saravhitkari Cooperative House Building First Society Limited, Plot No.1, Sector 48-A, Chandigarh, through its President, Mrs. Ravi Kanta

2.  Rajinder Chauhan, Secretary, The Chandigarh Saravhitkari Cooperative House Building First Society Limited, Plot No.1, Sector 48-A, Chandigarh

……Complainants

V e r s u s

1.  Chandigarh Housing Board, Sector 9, Chandigarh, through its Chief Executive Officer.

2.  Chief Accounts Officer, Chandigarh Housing Board, Sector 9, Chandigarh,

              .... Opposite Parties

Complaint under Section 17 of the Consumer Protection Act, 1986.

BEFORE: MR. JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MRS. NEENA SANDHU, MEMBER

Argued by:     Sh. Kamal K. Sharma, Advocate for the                            complainants.

PER  JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

              The facts, in brief, are that the Chandigarh Administration, floated the scheme known as ‘The Chandigarh Allotment of Land to Cooperative House Building Societies, 1991” (hereinafter to be referred as the Scheme only), for allotment of land, to the Cooperative Societies, for further construction of flats, thereon, which were to be allotted to the eligible members of the Society. The Registrar, Cooperative Societies, Union Territory, Chandigarh, after scrutinizing the application of the members of the Society, prepared a list of the members, declared to be eligible for allotment, under the Scheme. Under the said Scheme, minimum one acre chunk of land was to be allotted, and, in case, the total members did not qualify for allotment of one acre land, then the Society was to be clubbed, with some other Society. Complainant No.1 Society had less than 50 members, which were required to achieve the density per acre. Therefore, initially, it was grouped with the New Bank of India Employees Cooperative House Building Society, U.T., Chandigarh, Chandigarh Sector 22 House Building Society, U.T., Chandigarh, and Le-Corbusier Released Defence Officers Cooperative Housing Building Society, Chandigarh, and a chunk of land measuring 9760.01 sq. yards, was allotted to these four Societies, in Sector 48-A, Chandigarh, vide letter dated 21.12.1994. In this allotment letter dated 21.12.1994, payment schedule of the remaining 75% premium had been mentioned, in paragraph no.7(1), according to which, Complainant No.1 Society was required to pay the first installment of Rs.22,07,612/- by the due date on 21.12.1995, second installment of Rs.22,07,612/- by the due date on 21.12.1996 and third installment of Rs.22,07,612/- by the due date on 21.12.1997.

2.              It was stated that, according to the Policy of the Chandigarh Housing Board, Chandigarh, first installment was to be rescheduled, as payable, after one year, from the date of possession. However, in the present case, no possession of the land was allotted, vide the letter aforesaid, to the Society. It was further stated that, later on, the Chandigarh Housing Board, Chandigarh, changed the grouping and Complainant No.1 Society was clubbed with the New Bank of India Employees Cooperative House Building Society Limited, Chandigarh, and Chandigarh Sector 22, Cooperative House Building Society, U.T., Chandigarh, and was allotted a piece of land, measuring 9566.40 sq. yards, vide allotment letter dated 02.04.1996, Annexure C-3. It was further stated that, according to paragraph 7(1) of the allotment letter dated 02.04.1996, the payment schedule of balance 75% premium had been retained, but the amount of equated installments (including interest), to be paid, was changed. It was further stated that, possession of the land allotted to Complainant No.1 Society, vide letter dated 02.04.1996, was given on 09.04.1996. It was further stated that first installment was, thus, due only on 09.04.1997, but Opposite Party No.1, intentionally kept the dates of payment of cost of the land intact, and, in place of rescheduling the dates, the Society was forced to make payments, as per the payment schedule, mentioned, in both the allotment letters.

3.              It was further stated that vide letter dated 28.01.2010, the Chandigarh Housing Board, Chandigarh, was requested to provide information under the Right to Information Act, 2005, which included the date of allotment, date of physical possession and date of payments, made by the Society, but without any reply. It was further stated that vide letter dated 16.02.2010, the Chandigarh Housing Board, Chandigarh, informed one of the members of the Society, regarding the date of allotment, made to it and the date on which possession, was given to it. It was further stated that this letter also contained the due amount payable, by the Society, upto 28.02.2010. It was further stated that, on receipt of the payment, the Chandigarh Housing Board, Chandigarh, supplied the information to Complainant No.1 Society, vide letter dated 12.03.2010. It was further stated that, in the information supplied by the Chandigarh Housing Board, Chandigarh, to Complainant No.1 Society, the payment had been shown to be due from 21.12.1995, instead of 09.04.1997. It was further stated that, on account of this error, the Chandigarh Housing Board, Chandigarh, started charging huge amount, as interest, on the cost of land, as well as lease money. It was further stated that, thereafter, a number of letters were written, to the Opposite Parties, for refunding the excess amount, illegally charged by rescheduling the payment, instead of 21.12.1995, but to no avail.

4.              It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties to refund the amount of Rs.28,07,664/- (Rs.20,53,333/- as interest, on cost of land + Rs.3,62,773/-, lease money+ Rs.3,91,538/-, as interest on lease money), alongwith interest @24% P.A., from the date of receipt of the same, from Complainant No.1 Society; and pay compensation, in the sum of Rs. 5 lacs, for mental agony and physical harassment.

5.              Alongwith the complaint, an application for condonation of delay of 270 days (as per the applicants/complainants), in filing the same (complaint), has been moved. The grounds, set up, in the application, by the applicants/complainants, are to the effect, that in the letter dated 12.03.2010, which was received by Complainant No.1 Society, from the Chandigarh Housing Board, Chandigarh, the installments, had been wrongly charged, from it, as per the allotment letter, issued by the Chandigarh Housing Board, Chandigarh, on 21.12.1994, whereas, those were to be charged, as per the allotment letter dated 02.04.1996. It was further stated that, thereafter, complainant no.2, Secretary of complainant no.1 Society, wrote a letter to the Chandigarh Housing Board, Chandigarh, for reconciliation of the accounts of the Society, but it did nothing. It was further stated that, even on 30.03.2012, a request was made to the Opposite Parties, for the refund of excess amount, but no positive reply was received. It was further stated that since correspondence was being exchanged, between complainant No.1 Society, and the Opposite Parties, from time to time, the delay of 270 days (as per the applicants/complainants) occurred, in filing the complaint. It was further stated that the delay, in filing the complaint, was neither intentional, nor deliberate. Accordingly, the prayer, referred to above, was made.

6.              We have heard the Counsel for the applicants/complainants, on the application, for condonation of delay, as also, in the main complaint, and have gone through the record of the case, carefully. 

7.              According to Section 12(3) of the Consumer Protection Act, 1986, made applicable, to the disputes before the State Commission, by virtue of Section 18 of the Act, on receipt of a complaint, made under Sub-Section (1), the District Forum/State Commission, may, by order, allow the complaint to be proceeded with or reject the same. It means that even, at the preliminary stage, the Commission is competent to either allow the complaint to be proceeded with or reject the same, if it finds that it is barred by limitation or did not involve a consumer dispute

8.                   The question, that falls for consideration,  is, as to whether, there is sufficient cause for condonation of delay of 270 days, as per the applicants/complainants, in filing the complaint, under Section 17 of the Act. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the  Punjab & Haryana High Court,  that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In  New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court,  it was held as under:-

“No doubt the words “sufficient cause” should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all “sufficient cause” is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether, the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.”

9.              In  Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it was held as under:-

“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one is not to be swayed by sympathy or benevolence.”

10.               In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 108, the Supreme Court observed as under:-

“We hold that in each and every case the Court has to examine whether delay in filing the Special Leave Petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition”.

11.                 In Balwant Singh Vs. Jagdish Singh and Ors, V (2010) SLT 790=III (2010) CLT 201 (SC), it was held as under:-

“The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]”

12.           In Bikram Dass Vs. Financial Commissioner and others, AIR 1977, S.C. 1221, it was held as under:-

“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigation who is not vigilant about his rights must explain every days delay”

13.            In Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) it was held as under:-

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”

14.           A bare reading of the Section 24 A (2) of the Act, makes it clear, that the material part of the language thereof is pari-materia with Section 5 of the Limitation Act, 1963. No doubt, the applicants/ complainants have claimed that there was delay of 270 days, in filing the complaint, yet, in our considered opinion, the cause of action accrued, to the complainants on 02.04.1996, when the allotment of land was made to them and schedule of payments, was clearly depicted, in Annexure C-3, the letter of allotment. In the letter of allotment Annexure C-3, it was clearly depicted, that the first installment was due from 21.12.1995. The complainants, thus, came to know about this factum on 02.04.1996, when the allotment letter Annexure C-3, was issued in their favour. They could agitate the matter, with the Opposite Parties, from the date of receipt of the allotment letter, aforesaid, by writing letters, to them, from time to time, and if their grievance, had not been redressed, by the Opposite Parties, they were required to file a complaint, claiming reliefs, on the account of the alleged deficiency, in rendering service, by them, within 2 years, from 02.04.1996. However, they did not do so. At the most, in our considered opinion, they could file a complaint on or before 02.04.1998, but, on the other hand, they filed the same on 07.12.2012. The delay, in filing the complaint, in our considered opinion, is much more than, what has been depicted by the complainants, in the application for condonation of the same. No sufficient cause is established for condonation of delay of 14 years, from the date of accrual of cause of action.

15.           Even if, for the sake of arguments, it is taken that the cause of action, accrued to the complainants on 16.02.2010, when complainant no.2, was informed by the Chandigarh Housing Board, regarding the amount due or from 12.03.2010, when photocopies of the statements of account, showing the amount due/deposited on account of the cost of land, ground rent etc., demanded vide letter dated 19.02.2010, were supplied, no plausible cause has been set up and proved, as to how this delay occurred, in filing the complaint. Even after the receipt of the letters dated 16.02.2010 and 12.03.2010, the complainants, slept over the matter, for a long time and filed the complaint, after about nine months, from the date of accrual of the alleged cause of action. In the application, it was only stated that the complainants continued exchanging correspondence, with the Opposite Parties, for the refund of the amount and, thus, delay occurred, in filing the complaint. Such a cause set up by the applicants/complainants, in the application for condonation of delay, cannot be said to be sufficient, so as to persuade this Commission, to condone the same. The complainants acted in a highly negligent and irresponsible manner and woke up from their deep slumber, after 270 days (as per the applicants/ complainants) infact 14 years. Under these circumstances, no indulgence could be shown to them. The applicants/complainants did not act, with due diligence, resulting into delay of 270 days (as per the applicants/complainants), infact 14 years, in filing the complaint. Mere writing of letters, from time to time, to the Opposite Parties, could not extend the period of limitation. Once the cause of action, accrued to the complainants, to file a complaint, no subsequent event could prevent the running of the period of limitation or extend the same. The applicants/complainants were required to explain each day`s delay. They, however, miserably failed to explain the delay of 270 days (as per the applicants/ complainants) infact 14 years. Complete in-action and lack of bonafides, is attributable to the applicants/ complainants, in filing the complaint, after a delay of 270 days (as per the applicants/ complainants), infact 14 years. The delay, in filing the complaint was, thus, intentional, willful and deliberate. Since, no sufficient cause is constituted, from the averments, contained in the application, and the affidavit of Rajinder Chauhan, complainant no.2, the delay of 270 days (as per the applicants/complainants), infact 14 years, cannot be condoned. The principle, of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. The application is, thus, liable to be dismissed.

16.           The next question, that arises, for consideration, is, as to whether, even if, sufficient cause is shown, it is obligatory on the Commission, to condone the delay. The answer to this question, is in the negative. In  Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it was  held as under:-

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

17.           It is evident, from the principle of law, laid down, in Ram Lal & Ors.’s case (supra), that even if, sufficient cause is shown, then the Court has to enquire, whether, in its discretion, it should condone the delay. This aspect of the matter, requires the Commission, to take into consideration, all the relevant factors, and it is at this stage, that diligence of the party(s) or its/their bonafides, may fall for consideration. In the instant case, as stated above, it was obligatory upon the applicants/complainants, to take immediate steps, to ensure that the complaint was filed, within the stipulated period of 2 years, from the date of accrual of cause of action, as envisaged under Section 24A of the Act. However, the applicants/ complainants just slept over the matter and did not take steps to file the complaint, in time.  It was, thus, a case of complete lack of bonafides and inaction, on the part of applicants/complainants. The principle of law, laid down in Ram Lal & Others’ case(supra) is fully applicable to the instant case.   This is, therefore, not a fit case, in which this Commission should exercise its discretion, in favour of the applicants/complainants, in condoning the delay.

18.           The next question, that arises for consideration, is, as to whether, the Commission can decide the complaint, on merits, especially, when it has come to the conclusion, that there is no sufficient cause, for condonation of delay of 270 days (as per the applicants/complainants), infact 14 years, in filing the same (complaint). The answer to this question, is in the negative, as provided by the Apex Court in State Bank of India Vs B.S.Agricultural Industries (I) II(2009)CPJ 29(SC). The question before the Apex Court, was with regard to the condonation of delay, in filing the complaint, in the first instance, beyond the period of two years, as envisaged by Section 24A of the Act. The Apex Court was pleased to observe as under ;

“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 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.”

19.           The principle of law, laid down, by the Apex Court in State Bank of India’s case(supra), is applicable to the facts of the instant case. In case, this Commission, decides the complaint, on merits, after coming to the conclusion, that it is barred by time, it would amount to committing an illegality, in view of the principle of law, laid down in  State Bank of India’s case(supra).

20.              For the reasons, recorded above, the application for condonation of delay of 270 days (as per the applicants/complainants), infact 14 years, being devoid of merit, must fail, and the same is dismissed. Consequently, the complaint under Section 17 of the Act, is also dismissed, being barred by time, at the preliminary stage, with no order as to costs.

21.           Certified copies of this order, be sent to the parties, free of charge.

22.           The file be consigned to Record Room, after completion

Pronounced.

21.12.2012

Sd/-

[JUSTICE SHAM SUNDER(RETD.]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg