Delhi

West Delhi

CC/22/154

MANOHAR SINGH - Complainant(s)

Versus

GHAZIABAD DEVELOPMENT AUTHORITY - Opp.Party(s)

08 Jun 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-III: districtWEST, GOVT. OF NCT OF DELHI

C-BLOCK, COMMUNITY CENTRE, PANKHA ROAD, JANAK PURI

NEW DELHI

 

Complaint Case No.  154/22

 

In the matter of:

 

	Manohar Singh Bakshi, Advocate S/o Sh. Gyani Kartar Singh R/o A-6/144-A, Paschim Vihar, New Delhi-110 063	......Complainant
	Versus

1. Ghaziabad Development Authority,

               Ghaziabad, UP through its Vice Chairman

 

2. Vice Chairman, GDA, Ghaziabad, UP.    .............Opposite Party

 

 

DATE OF INSTITUTION:    JUDGMENT RESERVED ON:                DATE OF DECISION:

20.04.2022 28.04.2022 08.06.2022

 

 

Ms Sonica Mehrotra, President

Ms Richa Jindal, Member

Mr Anil Kumar Koushal, Member

 

Order passed byMs Richa Jindal, Member

 

ORDER

File taken up through video conferencing

 

1. The complainant has filed a present complaint under section 35 of the Consumer Protection Act,2019 against op alleging deficiency in service and claiming various reliefs as under:-

1. Allow the present complaint of the complainant to get a new house fit for human habitation and better for living purposes, and
2. To allow the complainant to get the new house in place of the house allotted to him at the originally demanded price of Rs. 4,45,000/- without interest and
3. Refund back the excess amount of Rs. 24,83,000/- with interest from the total deposit of Rs. 27,50,000/- after deducting the balance amount of Rs. 2,67,000/- from the total amount of Rs. 27,50,000/-
4. Grant compensation of Rs. 50 lakhs towards a higher degree of mental torture and physical and financial hardship the complainant is subjected to all this time and
5. Grant compensation of relied upon rent paid by the complainant amounting to Rs. 60,00,000/- till today and
6. Pass any such other or further orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the present case.

 

2. The Brief Facts of the complaint are as follows:-

 

The complainant applied for HIG house higher purchase Aashirwaad Scheme under the guise of assurances and promises of the OPs on 25.06.1991. The complainant was directed by OPs vide letter dated 25.06.1991 to deposit 40% out of the total cost of Rs. 4,45,000/- for immediate possession of House. Accordingly, the complainant deposited a reservation amount of Rs. 44,500/- and thereafter petitioner deposited Rs. 44,500/- as the first instalment after some time complainant deposited the 2^nd instalment of Rs. 44,500/- and the contract was complete, thus the complainant deposited Rs. 1,78,000/- in 1991. The complainant did not hear anything since allotment in 1991 and the complainant accordingly made several written representations dated 25.11.1995, 16.11.1996, 10.12.1997, 08.06.1998, 09.10.1999, 07.06.2000, 24.07.2001, 25.01.2002, 10.12.2002, 02.11.2003, 20.11.2003 to the Vice Chairman of OP with a request to consider the grievance case of the complainant and give possession of the allotted KA-06 House but unfortunately, request of the complainant was not considered or disapproved or discredited. The no. of representations from the new address of Delhi dated 19.10.1999, 07.60t6.2999, 24.07.2001 to the Vice Chairman of GDS (OP) bringing to notice the above-stated grievance of the complainant due to deficiency of service of G.D.A., the GDA remained non-active to the complainant case for 10/11 years despite his personal meetings and detailed representation. The continuous failure to give possession amounts to a continuing wrong, the complainant suddenly after 13 years, in reply to his representation, the complainant received a letter dated 25.02.2004 on his new address at Delhi from OP wherein it was intimated that Flat no. KA-06 has been cancelled because he failed to deposit the entire amount of deficient service. The complainant immediately filed a complaint dated 10.10.2004 before the MRTP Commission, New Delhi. Before MRTP Commission in the reply filed in 2006 by the OP, they have admitted that the allotted house is under Hire Purchase Scheme, but on the other hand, it has been admitted that the complainant was informed that the final cost of the Flat was Rs. 7,17,600/- and he was asked to deposit 50% of the final cost, there is continuing wrong & deficiency of service. On 19.08.2011 & 13.09.2011, the Hon’ble MRTP Tribunal observed because of the Apex Court judgement that there is a possibility for compromise & amicable settlement. On 27.4.2012, the OP intimated to the complainant about the allotment of restored alternative house no KA-97 HIG Duplex which was on the back side having 1/10^th value in lieu of original Flat KA-06 in one corner of the front side of the main road. That, the complainant agreed and accepted the said restored substituted Flat KA-97 in dispute in lieu of the Flat KA-06 against the total original cost of Rs. 4,45,000/- for which 40% i.e. Rs. 7,78,000/- for possession under the “Hire Purchase Scheme” was already deposited in advance in 1991. On 9^th February 2015, it was observed by the Tribunal, New Delhi that the “complainant shall be free to accept the allotment of a new flat bearing no. KA-097, in respect of which an offer was made to him by OP,vide communication dated 02.02.2015. Even after making the full payment along with the excess amount, in addition to paying high rent for rented accommodation, the possession of the badly damaged broken house was given to the complainant only in the year 2016 for which the complainant had been dreaming since 191 and for which he had been fighting since 1993 after 27 years which only added to his suffering the petitioner has been suffering for the delay caused in not considering his case due to continuing failure, lethargic, an inhumane attitude of Respondent & wrong full act. The complainant also approached the Hon’ble Supreme Court of India. The Hon’ble Apex Court dismissed the case on 26.11.2018 finding no other alternative the complainant approached this Commission in April 2022 and filed an instant complaint about redressal of his grievances.

 

3. Arguments heard on the admissibility of complaint on the point of maintainability of complaint.During the arguments, the complainant also relied on Supreme Court Judgement titled “Meerut Development Authority vs Mukesh Kumar Gupta “reported in 2022 (1) scale 290

 

4. After going through the material placed on record, it reveals that the main question involved in the present complaint is whether the present Complaint is barred by limitation under section 69 of the Consumer Protection Act, 2019 OR NOT?

 

5. Clearly, the only aspect for consideration before us is whether the Complainant is barred by a limitation or not?

 

6. As per the law of land, it is already settled that the issue of maintainability can be decided at any stage. Reliance is placed on the following judgements: -

 

HON'BLE SUPREME COURT in the case titled “ Hewlett Packard India Ltd. Vs Shri Ramachander Gehlot” in CA No. 7107/2003 decided on 16.02.2004 held that

 

"The issue of maintainability has to be decided before admitting or hearing the matter on merit.”

 

8.  in FIRST APPEAL NO. 337 OF 2017 in a case titled “KOSHY VARGHESE THAVALATHI HOUSE, MELE VETTIPURAM, PATHANAMTHITTA Versus HDFC BANK LTD. & 2 ORS.” Held that

“It is settled law that the question in which law point is involved can be decided at any stage of the proceedings of the case.

 

In view of the above, the present Appeal as also the Complaint filed by the Appellant/Complainant before the State Commission is dismissed being not maintainable with no order as to cost.”

 

6. As Section 69 of the Act, 2019 prescribes a limitation period for admission of a complaint by the Consumer Commission, which states that “

(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 subsection (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.

 

7.     A perusal of the record shows that the present complaint was filed in APRIL 2022. It also said the matter was listed on 20/04/2022 for the first time before this commission.

 

8.     To decide the preliminary issue, we are guided by the judgement of Hon’ble NCDRC on a similar issue in the case of Kishore Shriram Sathe vs Vivek Gajanan Joshi on 1 October 2013 in REVISION PETITION No. 1953 of 2011 held that

                   “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 the cause of action and if beyond the said period, 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. Therefore, the aggrieved party would be entitled to have such an order set aside.

 

9.     In Union of India and Another v. British India Corporation Ltd. and Others, (2003) 9 SCC 50, while dealing with an aspect of limitation for an application for refund this Court held that the question of limitation was a mandate to the forum and, irrespective of the fact whether it was raised or not, the forum must consider and apply it.

 

10.   In Haryana Urban Development Authority v. B.K. Sood, (2006) 1 SCC 164, this Court while dealing with the same provision viz., Section 24A of the Act, 1986 held:

       

"10. Section 24-A of the Consumer Protection Act, 1986 expressly casts a duty on the Commission admitting a complaint, to dismiss a complaint unless the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that the complainant had sufficient cause for not filing the complaint within the period of two years from the date on which the cause of action had arisen.

 

The section debars any fora set up under the Act, admitting a complaint unless the complaint is filed within two years from the date of which the cause of action has arisen. Neither the National Commission nor the State Commission had considered the preliminary objections raised by the appellant that the claim of the respondent was barred by time.

 

Furthermore, the complaint before the State Commission was filed by the respondent in 1997, ten years after the taking of possession. This was eight years after the cause of alleged damage commenced and three years after that cause ceased. There was not even any prayer by the respondent in his complaint about condoning the delay.

Therefore, the claim of the respondent on the basis of the allegations contained in the complaint was clearly barred by limitation as the two-year period prescribed by Section 24-A of the Act had expired much before the complaint was admitted by the State Commission. This finding is sufficient for allowing the appeal."

 

11.   In the case of Gannmani Anasuya and Others v. ParvatiniAmarendra Chowdhary and Others, (2007) 10 SCC 296, this Court highlighted regarding Section 3 of the Limitation Act that it is for the court to determine the question as to whether the suit is barred by limitation or not irrespective of the fact that as to whether such a plea has been raised by the parties; such a jurisdictional fact need not even be pleaded.

 

12.   The Supreme Court affirmed the following in the case of State Bank of India v B. S. Agriculture Industries (I) [(2009) 5 SCC 121]:

 

“ As far as the present case is concerned, at the first available opportunity in the written statement itself, the Bank raised the plea that the complaint was barred by limitation. However, the objection with regard to limitation remained unnoticed by all the three fora, namely, District Forum, State Commission and National Commission. Since the question relating to limitation goes to the root of the matter and may render the order illegal, we would now see whether the complaint was filed within time i.e., within two years of accrual of the cause of action. The complaint having been held time-barred; this plea is not of much significance.

As a result, the appeal is allowed. In addition, the decision of the National Commission dated October 1, 2001, affirming the orders of the State Commission and District Forum, is set aside. The cis dismissed as time-barred. The parties shall bear their costs.”

 

13.   It would be pertinent to begin our discussion by referring to Section 69 of the Consumer Protection Act, 2019. It would be seen from the aforesaid provision that it is peremptory 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 the cause of action. Admittedly present complaint has been filed by the complaint almost Six years after taking the possession of said flat which was allegedly in dilapidated and badly damaged condition. There was not even any prayer/application  by the complainant in his complaint about condoning the delay in filing the present complaint.

 

14.   In view of the complainant seeking an extension of limitation from 1991 till the date of filing the present complaint, a reference may be made to the observations of the Hon’ble supreme court in RE Surjeet Singh vs State of UP in SLP No. 3008 of 2022 decided on 28/2/2022, wherein the Hon’ble Supreme court has laid down that such type of representation does not extend the limitation. Relevant extract from the judgement is as under :

 

“5. As observed by this Court in catena of decisions, mere representation does not extend the period of limitation and the aggrieved person has to approach the Court expeditiously and within reasonable time. If it is found that the writ petitioner is guilty of delay and latches, the High Court should dismiss it at the threshold and ought not to dispose of the writ petition by relegating the writ petitioner to file a representation and/or directing the authority to decide the representation, once it is found that the original writ petitioner is guilty of delay and latches. Such order shall not give an opportunity to the petitioner to thereafter contend that rejection of the representation subsequently has given a fresh cause of action.”

 

15.   It may not be out of place to mention that the enforcement of CPA 2019, which provides the pecuniary jurisdiction and geographical (territorial) jurisdiction of filing of cases does not under section 47 of the ACT does not give rise to a further right to the complainant to file the present complaint before this Commission.

 

16.   We may also take note of the fact that vide order dated 26/11/2018 the Hon’ble Supreme Court dismissed the plea of the complaint by the withdrawal of said case giving liberty to the petitioner to move Hon’ble High Court with an appropriate writ petition under Article 226 of the constitution.

 

17.   The complainant did not feel fit to pursue the said remedy and left the same at that stage. He can not be permitted to take the liberty of his delay and laches under the garb of the rise of covid 19 which effected only in the latter part of the year 2019   as such we find the present petition is hit the delay and laches and is an act of the complainant to overreach the jurisdiction of this Hon’ble Commission.

 

18.   The complainant cannot be permitted to wait for the passing of the CPA 2019, in order to avail the remedy as contained in section 47 (4) of the act to avail the right to file a complaint within the jurisdiction of the commission where the complainant resides or personally works for gain. He can not be permitted to choose the jurisdiction in view of the fact that the remedy regards mediation as an alternate dispute resolution mechanism that was available even under the earlier consumer protection act 1986.

 

19.   Reliance is placed on the rulings of the Hon’ble Supreme Court in KandimallaRaghavaiah and Co. Vs. National Insurance Co. & Another (2009) 7 SCC 768, held that

 

The term "cause of action" is neither defined in the consumer Protection Act nor the Code of Civil Procedure, 1908 but is of wide import. It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of the right to sue. JT 2009 (4) SC 191 (2003) 9 SCC 50 (2006) 1 SCC 164 Generally, it is described as a "bundle of facts", which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, "cause of action" means the cause of action for which the suit is brought. "Cause of action" is a cause of action which gives occasion for and forms the foundation of the suit. (See: Sidramappa Vs. Rajashetty&Ors.).

 

20.   That the present complaint filed by the complainant is liable to be dismissed summarily because the complainant has not only violated the rules of Natural justice but also present complaint is abuse process of law.

 

21.   In the light of the judgement discussed above & the legal proposition, we hold that concerning the question of limitation neither the facts mentioned in the complaint nor any argument made by the complainant justify the inordinate delay in filing the complaint on April 2022. We, therefore grossly dismiss the present complaint on grounds of time barred. Such forum shopping acts should be strictly deprecated.

 

22.   The arguments in the case were heard on 28.4.2022 and the order was reserved. Now, the order be communicated to the parties.

 

23.   A copy of the order be sent to the complainant free of cost by post. Order be sent to www.confonet.nic.in.

 

24.     File be consigned to record room.

(Richa Jindal)         Member

(Anil Kumar                      Koushal)       Member

(Sonica Mehrotra)                         President