O R D E R<br /> <br /> <br /> <br /> SRI.D. KRISHNAPPA, PRESIDENT:<br /> <br /> The grievance of the complainants against the Ops in brief is, that they are the owners of undivided share in vacant sites No.46 to 48 having composite khata No.541 situated at Sarakkikere grama, Uttarahalli Hobli, Bangalore to an extent of 410 sq. ft. by way of sale deeds dated 22/08/2003, 14/05/2003 in the second and third complaints and dated 22/08/2003 in the fourth complaint as described in the schedule A property. The composite property is described as schedule B property and their undivided share is referred to as schedule C property. Plot No.4 to be constructed upon schedule D property and car parking should be on schedule-E property. Thereafter, as they were busy given power of attorney to their power of attorney holders for further transactions with the Ops. Op No.1 is a construction company engaged in construction of apartments and selling. OP No.2 and 3 are the joint owners of the scheduled properties mentioned above. Op No.2 is the wife of Op No.1 the Managing Director and Op No.3 is the brother in law of Op No.2. That the first complainant booked plot No.1 in the first floor, Sai Nilaya in Schedule-D property to be constructed on Schedule-B land. Complainant No.2 booked plot No.4 of the second floor of the same building similarly complainant No.3 booked plot No. 5 and 6 then complainant No.4 booked plot No.7 in the second and third floor respectively of the same apartment and building. That Op No.1 got registered his undivided share in the schedule-B property through Op No.2 and 3 in their favour with respect to booking and purchase of schedule-D and E properties and executed an agreement of sale on 04/08/2003 in the first complaint, on 16/04/2003 in complaint No. 2 and 3 & on 29/01/2003 in the 4th complaint. Agreeing for total consideration of Rs.18,75,000/- in the first complaint, Rs.17,62,000/- in the second complaint, Rs.26,98,000/- in the third complaint and Rs.18,75,000/- in the 4th complaint which is inclusive of all costs, expenses, stamp duty and registration charges. That they have paid entire amount as agreed. As per clause 4 of the agreement Op No.1 is bound to execute separate sale deed in respect of their individual plots in respect of D and E properties along with undivided shares in the schedule-B property. After those agreements they availed loans from CANFIN Homes and they entered into tripartite agreement on 10/08/2003, 10/06/2003 in the first three cases respectively. That they got transferred kathas of their respective plots to their name, buildings were completed during June 2004 and even have taken possession of their respective plots in that year. But Op No.1, when they approached to get their plots registered in their name never executed sale deeds stating that Government has stopped registration of the private layouts and were asked to wait for some time. But even thereafter Op No.1 did not come forward to execute sale deed and protracted on one or the other ground. The Opponents have collected entire consideration amount and registration expenditure but have failed to execute sale deeds in terms of agreement. Therefore, complainants have prayed for a direction to Ops to execute registered documents in their favour and to award costs and other reliefs.<br /> <br /> Ops No. 1 to 3 have appeared through their advocate. Op No.1 has filed version. Op No.2 and 3 have filed common version. Version of these opponents being common in all these 4 cases is stated as under in brief. That Op No.1 has contended that the complaints are not maintainable. The allegations are false and the complainants have suppressed material facts. It is further stated that the complainants who are the owners of the site No.46 to 48 having composite katha No.541 by virtue of sale deeds referred by complainants as per the sale deeds executed by Op No.2 and 3. That the complaints are barbed by limitation as they are not filed within the period as provided U/s 24 A of Consumer Protection Act. The complainants have sought for relief for a direction to them to execute sale deeds based on the agreements and such relief cannot be granted by this forum. That in order to enforce the agreements of sale the complainants have to approach the Civil Court. That cause of action for these complaints arose on the date of execution of the agreements in the year 2003 and these complaints are filed after 5 years thereafter, as such are barred by limitation. The complainants who have alleged breach of contract can only approach the Civil Court for enforcement and thereby have prayed for dismissal of the complaints.<br /> <br /> Op No.2 and 3 have in addition to preliminary objections raised and as contended by the Op NO.1 have further contended that these complaints are filed after long lapse of time after the cause of action arose in the year 2003 during which the agreements of sale came into existence. It is further contended that agreements relied upon by the complainants are executed by one Krishnamurthy, therefore are not enforceable against them and thus they are nothing to do with the agreements and complaints of these type cannot be decided by this forum and the complainants have to approach the Civil Court under provision of specific relief and have prayed for the dismissal of the complaint.<br /> <br /> In the course of enquiry into these complaints, the complainants, Op No.1 and One Bharathi K for Op No.2 and 3 have filed their affidavit evidence re-producing what they have stated in their respective complaints and version. The complainants have produced copies of agreements, copies of allotment letters, khata endorsement, tax paid receipt and copy of legal notices they got issued to Ops on 08/08/2008 in all these 4 complaints. Ops have not produced any documents. <br /> <br /> Heard the counsel for both parties. Counsel for the complainants has filed synopsis of arguments and relied upon the decision reported in III (2008) CPJ page 507 of Tamil Nadu State Consumer Disputes Redressal Commission, I (2009) CPJ Page 58 (NC), III (2007) CPJ Page 42 Madhya Pradesh State Consumer Disputes Redressal Commission, with regard to maintainability of the complaints and on point of limitation. Where as counsel for Ops in his arguments stated that the complaints are not maintainable before the forum and that the complaints are barred by limitations and has relied upon a decisions of Tamil Nadu State Consumer Disputes Redressal Commission reported in I (1995) CPJ Page 385, Orissa State Consumer Disputes Redressal Commission reported in 2205 (3) CPR Page 353.<br /> <br /> On consideration of entire materials placed before us following points for determination arise.<br /> <br /> 1. Whether the complaints are barred by limitations.<br /> 2. Whether the complainants prove that Ops have caused deficiency in their service in not executing sale deeds in pursuance of agreements of sale executed in their favour in the year 2003.<br /> 3. To what relief the complainants are entitled to?<br /> <br /> Point No.1 : In the affirmative<br /> Point No.2 & 3 : see the final order.<br /> <br /> Since all these 4 complaints are filed against same Ops for similar reliefs relying upon similar documents and transactions are taken up together for disposal by a common order.<br /> <br /> <br /> REASONS:<br /> <br /> Answer on point No.1 : As perused from the allegations found in the complaints and controverted by the opponents, the complainants agreeing to purchase plots from these Ops entered into an agreements of sale with Op No.1 in the year 2003. Of course on different date and month as narrated in the above Paras. It is also not disputed that these complainants stated to have paid entire sale consideration and also registration charges etc., These complaints have admitted in their complaints and also in their affidavit evidence that the Opponents after completing building construction in the year 2004 have put them in possession of the respective plots and they are residing in their respective plots since then. It is also admitted by these complainants that they got katha of their respective plots changed to their names and even are paying taxes of those buildings to the local body which facts and developments are not at all in dispute.<br /> <br /> These complainants having kept quite right from the year 2003 after entering into the agreements of sale taken possession of their respective plots and continued to occupy them and even got all the documents of their plots changed to their name in the local bodies but woke up to get a legal notice issued to Ops on 08/08/2008 and have filed these complaints before this forum on 05/09/2008. The complainants have not brought to our notice any correspondence they had or demands in writing made with Ops requesting them or compelling them to execute sale deeds from 2003 or from 2004 till they got issued the legal notice in the year 2008. Therefore it is found that cause of action for these complainants arose after execution of agreement of sale to demand for execution of sale deed and again thereafter when after completing the construction when possession was delivered to them and when started living in them in the year 2004 cause of action which started to run from the year 2003 ought to have filed complaints within two years either from the year 2003 or from the year 2004 when they occupied the plots. But they not file the complaints as such the present complaints filed are barred by limitations as provided under Section 24 A of the Consumer Protection Act. Section 24 A of the act commands that complaints shall be filed within two year from the date on which cause of action arose, and complaints could be entertained even after expiry of two year period if the complainants had filed application for condonation of delay explaining the same but they have not filed any application for condonation of delay in filing these complaints. Opponents have taken categorical contention regarding maintainability of these complaints on the ground that they are barred by limitation. On perusal of these uncontroverted and undisputed facts it is manifest that the complainants have not approached this forum within two years from the date of which cause of action arose and since they have not filed any application for condonation of delay are not maintainable and are liable to be dismissed on that ground alone. The decisions referred to by learned counsel for complainants regarding maintainability of the complaints even after expiry of two years as provided under section 24 A of the Consumer Protection Act can not be relied upon, in view of the recent decision of the Hon’ble Supreme Court in this regard which they we are going to refer below. The counsel for the Ops has referred to two decisions which say that specific performance in respect of the immovable property based on agreement do not fall within the ambit of the Consumer Protection Act and the remedy for the aggrieved is only before the Civil Court. As we are not going on merits of the case, we do not find any necessity of expressing our opinion regarding applicability or non-applicability of the cases rely upon by the counsel for Ops. <br /> <br /> On the point of maintainability of the complaints under section 24 A of the Consumer Protection Act, we rely upon the decision of the Hon’ble Supreme Court reported in 2009 CTJ page 481 between State Bank of India V/s B.S. Agricultural industries and the further observation.<br /> <br /> “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 24 ‘A’ is sort of legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder.<br /> <br /> As a matter of law, the Consumer Form 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 duty of the Consumer Forum to take notice of Section 24 ‘A’ and given 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”.<br /> <br /> <br /> In Union of India and Another V/s British India Corporation Ltd., and others, 2003 (9) SCC 50, while dealing with an aspect of limitation for an application for refund prescribed in Business Profits Tax Act, 1947, 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. “To similar effect is the decision of Hon’ble Supreme Court in the case of Haryana Urban Development Authority V/s B.K. Sood 2006 CTJ 1 (SC) (CP)-IV 2005 CPJ I (SC)”.<br /> <br /> <br /> <br /> In view of the above decision of the Hon’ble Supreme Court, the complaints are barred by limitations. Therefore, without going to the merits of the complaints, we answer point No.1 in the affirmative and without answering Point No.2 and 3 and pass the following order.<br /> <br /> O R D E R<br /> <br /> Complaints are dismissed as barred by limitations.<br /> <br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the Open forum on this the 1st April 2010.<br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />