STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH (In Appeal No.223 of 2009) Date of Institution: 24.04.2009 Date of Decision : 10.11.2010 The Shaktiman Cooperative Group Housing Society Ltd., GH-68, Sector 20, Panchkula through its Authorized Signatory. ……Appellant V e r s u s1. OTIS Elevator Company (India) Ltd., Northern Region, SCO No.223, First Floor, Sector 37-C, Chandigarh through its Regional Manager. 2. OTIS Elevator Company (India) Limited, 404-405, Rectangle I, 5th Floor, D-4, Saket, New Delhi through its Managing Director. ....Respondents. BEFORE: HON’BLE MR. JUSTICE PRITAM PAL, PRESIDENT. MRS. NEENA SANDHU, MEMBER SH. JAGROOP SINGH MAHAL, MEMBER. Argued by: Sh. Neeraj Sharma, Advocate for the appellant. Capt. Arun Kumar, Advocate for the respondents. (Appeal No.221 of 2009) Date of Institution: 24.04.2009 Date of Decision : 10.11.2010 1. OTIS Elevator Company (India) Ltd., Northern Region, SCO No.223, First Floor, Sector 37-C, Chandigarh through its Regional Manager. 2. OTIS Elevator Company (India) Limited, 404-405, Rectangle I, 5th Floor, D-4, Saket, New Delhi through its Managing Director. ……Appellants V e r s u sThe Shaktiman Cooperative Group Housing Society Ltd., GH-68, Sector 20, Panchkula through its President Sh. B. J. Madan. ....Respondent. Argued by: Capt. Arun Kumar, Advocate for the appellants. Sh. Neeraj Sharma, Advocate for the respondent. PER JAGROOP SINGH MAHAL, MEMBER. 1. These are two appeals under Section 15 of Consumer Protection Act, 1986 i.e. Appeal No.221 of 2009 filed by the OP against order dated 17.3.2009 passed by learned District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter referred to as District Forum) allowing the complaint and directing the OP to install the second elevator within a period of four months from the date of communication of the order and to pay to the complainant Rs.7 Lacs as compensation for deficiency in service, mental tension and agony and also to pay Rs.5,000/- as cost of litigation and the other Appeal No.223 of 2009 filed by the complainant Society claiming interest on the amount awarded by the learned District Forum 2. The complainant is a Cooperative Group Housing Society, which entered into an agreement (Annexure I) dated 29.1.1999, which was confirmed on 15.3.1999 vide Annexure II for installation of two elevators in the premises of the Society each costing Rs.6,40,000/-. Out of the total amount of Rs.12,92,409/-, the OP received Rs.10,93,600/-. The elevators were to be installed within 40 weeks from the date of receipt of the order as mentioned in Para No.23(a) of the agreement dated 29.1.1999 (Annexure I). The OP installed one elevator and not the other. According to the complainant, lot of correspondence took place between the parties for commissioning of the second elevator and ultimately, a letter dated 18.12.2007 was written, to which the OP sent a reply dated 10.1.2008 alleging that some parts of the elevator were stolen from the premises of the complainant Society where those were stored. The complainant then served a legal notice dated 21.4.2008 to which reply dated 12.5.2008 was issued by the OP denying the allegation and alleging that the claim was barred by time. The complainant, therefore, prayed for the installation of the second elevator and also claimed Rs.20 Lacs as compensation on account of deficiency in service and Rs.2 Lacs on account of mental tension and agony along with interest @18% per annum. 3. The OPs in their reply admitted the agreement and the installation of one elevator out of the two. It was alleged that the entire parts of the second elevator were stored at the premises of the complainant but the same were stolen there from. It was alleged that it was the responsibility of the complainant to provide adequate safety and security measures to prevent any damage, theft or pilferage during storage and erection period but inspite of the matter having been brought to the notice of the complainant, no action was taken thereon. It was also alleged by the OPs that the agreement took place in the year 1999 but the present complaint was filed in July 2008 and was therefore, barred by time. 4. Both the parties were given opportunity to lead evidence in support of their contentions. 5. After hearing the learned counsel for the parties and perusing the record, the learned District Forum allowed the complaint and directed the OP to install the second elevator within four months from the date of communication of the order and also to pay Rs.7 Lacs as compensation for deficiency in service along with Rs.5,000/- as costs of litigation. The complainant filed an appeal claiming interest @18% per annum on the amount of Rs.7 Lacs awarded to it as compensation. The OPs have also filed an appeal challenging the impugned order. Since, both the appeals are against the same order of the learned District Forum, these are taken up together for discussion and decision. 6. We have heard the arguments of learned counsel for the parties and have perused the record. 7. The learned counsel for the OPs first argued that the elevators have been purchased from Bombay as is clear from the order (Annexure – I) and the Invoice (Annexure C-2); that the elevators were to be installed in Sector 20, Panchkula and therefore, neither the OP resides or carries on business within the jurisdiction of the learned District Forum nor any cause of action accrued in Chandigarh and the learned District Forum, therefore, had no territorial jurisdiction to entertain and try this complaint. This objection was not taken before the learned District Forum and rightly so because the agreement was entered into at the office of OP No.1 at Chandigarh. Annexure – II is the letter dated 15.3.1999 issued by OP No.1 from Chandigarh and it was on its basis that the payment was made by the complainant, the receipt of which was no doubt issued from Bombay. It is argued by the learned counsel for the complainant that the entire correspondence took place with OP No.1 who arranged the elevators, negotiated the agreement and got the machine installed. We are, therefore, of the opinion that a part of cause of action accrued within the jurisdiction of District Forum at Chandigarh and no objection having been taken to the territorial jurisdiction, the OPs are precluded from raising this plea for the first time in appeal. The learned District Forum was, therefore, fully competent to entertain and decide the complaint. 8. It is also argued by the learned counsel for the complainant that the complaint was barred by time. According to him, the agreement was entered into between the parties for supply and installation of the elevators on 15.3.1999, the first elevator has already been installed and the second elevator also was to be installed within 40 weeks from 15.3.1999 as mentioned in Clause 23 of the agreement (Annexure I). It is contended that on the expiry of 40 weeks i.e. on 21.12.1999, the cause of action accrued to the complainant to file the complaint but they having slept over the matter for more than 9 years were not justified in filing the complaint in July 2007. The learned counsel for the complainant has argued that some correspondence took place between the parties during this period but he has not been able to produce any document to suggest if any such correspondence was going on between the parties right from 1999 to 2007. The first letter produced by the complainant in this respect is dated 18.12.2007 when the complainant wrote to the OP No.2 for completing the job to which a reply was sent on 10.1.2008 (wrongly mentioned as 2007). It was mentioned therein that parts of the elevator that had gone missing from the premises of the complainant where the same were stored needed to be arranged and a fresh order is to be placed by the company in this respect. The learned counsel argued that as per the next letter dated 12.5.2008, it was specifically mentioned that the OP was not responsible for loss of material and the claim was barred by time. The learned District Forum mentioned in Para No.11 of the order that since the OP company expressed its intention not to fulfill the contract vide its letter dated 10.1.2008, so, the limitation would start from that date. The learned District Forum did not take notice of the fact that for eight years, the complainant slept over the matter. In case Haryana Urban Development Authority Vs. Usha Vohra, 2009 (Dec.) CPJ 304(NC), the respondent defaulted in making payment of installments due to which the plot was resumed in 2002. The respondent neither challenged the resumption nor approached public authorities for redressal of grievances till she filed complaint in 2006. The complaint was held to be barred by time. In case Punjab National Bank& Anr. Vs. Chandigarh Housing Board, 2009 (7) CPJ 152, wrong credit advice was issued by the Bank in 1997 but the same was cancelled in 1998. It was held by this Commission that cause of action arose in 1998 and the complaint filed against that action of the Bank in 2006 was barred by time. Such a question arose before the Hon’ble Apex Court in case Kandimalla Ranghavaiah & Co. Vs. National Insurance Co. Ltd. & Anr., III (2009) CPJ 75 (SC). In that case, the godown of the appellant was insured and fire engulfed the same on 22/23.3.1988. The insurance company was informed in November 1992 when the period of limitation had already expired. It was contended by the appellant that limitation period would commence from the date the respondent Insurance Company refused to pay the claim. This contention was not accepted by the Hon’ble Apex Court and it was held that cause of action arose on 22/23.3.1988 when the stocks were destroyed by fire in the godown and the limitation would start running from that date. It was held that the complaint ought to have been filed within two years thereafter. In that case also, the appellant had addressed a letter to the respondent on 6.11.1992 asking for the claim forms to enable them to file claim with the respondent. A legal notice was thereafter issued to the respondent and it was held that the reply given by the respondent would not extent the period of limitation. In another case State Bank of India Vs. B. S. Agricultural Industries (I), II (2009) CPJ 29 (SC), the complainant had sent bills to the Bank for collection of payment and remittance of proceeds with the instructions to return the documents if not honored by the Bank by 7.6.1994. It was held that the cause of action accrued on 7.6.1994 when the complainant neither received demand draft nor documents and therefore, the complaint filed on 5.5.1997 was apparently barred by time. It was further held that letters sent to Bank and Bank’s reply is of no help to the complainant and limitation would not be extended by the reply given by the Bank. In the present case also, as per the agreement dated 15.3.1999, the second elevator was to be installed within 40 weeks, which period expired on 21.12.1999. The cause of action to file the complaint accrued to the complainant on that date. No complaint was filed and no correspondence was made with the OP for eight yeas. The first letter was written on 18.12.2007 when the limitation period to claim relief against the OPs had already expired. The reply dated 10.1.2008 or 12.5.2008 would not extend the period of limitation. The complaint was, therefore, barred by time and could not be entertained. 9. There is yet another aspect of the case that the learned District Forum was not competent to entertain the complaint. As per the complaint, the relief claimed is a compensation of Rs.20 Lacs on account of deficiency in service and Rs.2 Lacs on account of mental tension and agony i.e. totaling Rs.22 Lacs. The learned District Forum could entertain the complaints in which the relief claimed is worth Rs.20 Lacs. It is argued by the learned counsel for the complainant that no objection about the pecuniary jurisdiction was taken by the OPs and therefore, it cannot be taken at this stage. We do not agree to this view. Even if no objection was taken by the OPs, the learned District Forum was not competent to entertain the complaint in which the relief claimed is more than Rs.20 Lacs. The pecuniary jurisdiction could not be conferred by the parties on the learned District Forum by acquiesce or by consent. Since the learned District Forum did not have the inherent jurisdiction to entertain and try the complaint, it was necessary for it to return the complaint for presentation before the proper Fora. It could be done even at this stage but we are not inclined to return the complaint because in that case a time barred complaint would again continue to be heard and the OPs may be further harassed, though ultimately the complaint would be dismissed being barred by time. 10. In view of the above discussion, we are of the opinion that the appeal filed by the OPs succeeds and the same is accordingly allowed with litigation costs of Rs.5,000/-. The complaint filed by the complainant is accordingly dismissed. 11. Since the complaint is being dismissed, the question of granting any interest to the complainant on the amount of compensation awarded by the learned District Forum does not arise. The result is that the appeal filed by the complainant is dismissed. 12. Copies of this order be sent to the parties free of charge. Pronounced. 10th November 2010. [JUSTICE PRITAM PAL] PRESIDENT [NEENA SANDHU] MEMBER [JAGROOP SINGH MAHAL] MEMBER Ad/-
STATE COMMISSION(Appeal No.223 of 2009) Argued by: Sh. Neeraj Sharma, Advocate for the appellant. Capt. Arun Kumar, Advocate for the respondents. Dated the 11th day of November, 2010. ORDER Vide our detailed order of even date recorded separately, this appeal filed by the complainant has been dismissed and the cross appeal bearing No.221 of 2009 filed by OPs has been allowed with costs of Rs.5,000/-. (JAGROOP SINGH MAHAL) (JUSTICE PRITAM PAL) (NEENA SAHDHU) MEMBER PRESIDENT MEMBER
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH (Appeal No.221 of 2009) Date of Institution: 24.04.2009 Date of Decision : 10.11.2010 1. OTIS Elevator Company (India) Ltd., Northern Region, SCO No.223, First Floor, Sector 37-C, Chandigarh through its Regional Manager. 2. OTIS Elevator Company (India) Limited, 404-405, Rectangle I, 5th Floor, D-4, Saket, New Delhi through its Managing Director. ……Appellants V e r s u sThe Shaktiman Cooperative Group Housing Society Ltd., GH-68, Sector 20, Panchkula through its President Sh. B. J. Madan. ....Respondent. BEFORE: HON’BLE MR. JUSTICE PRITAM PAL, PRESIDENT. MRS. NEENA SANDHU, MEMBER SH. JAGROOP SINGH MAHAL, MEMBER. Argued by: Capt. Arun Kumar, Advocate for the appellants. Sh. Neeraj Sharma, Advocate for the respondent. PER JAGROOP SINGH MAHAL, MEMBER. For orders, see the orders passed in Cross Appeal No.223 of 2009 titled ‘The Shaktiman Cooperative Group Housing Society Ltd. Vs. OTIS Elevator Company (India) Ltd. and another’ vide which this appeal has been allowed with costs of Rs.5,000/-. Copies of this order be sent to the parties free of charge. Pronounced. 10th November 2010. [JUSTICE PRITAM PAL] PRESIDENT [NEENA SANDHU] MEMBER [JAGROOP SINGH MAHAL] MEMBER Ad/-
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE PRITAM PAL, PRESIDENT | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | | 
