Delhi

StateCommission

FA/12/473

SUPER NEEDLE COLLCTIONS PVT. LTD. - Complainant(s)

Versus

STRERLING HOLIDAYS RESORTS (INDIA) LTD. - Opp.Party(s)

13 May 2019

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

 

Date of Hearing:13.05.2019

                                                                                                              

                                                                   Date of decision:16.05.2019

 

First Appeal No.473/2012

 

IN THE MATTER OF

 

M/s Super Needle Collections Pvt. Ltd.,

A company registered under the companies Act, 1956

Having its registered office at:

G-1, Masjid Moth,

Greater Kailash-II,

New Delhi-110048….Complainant

 

VERSUS

 

M/s Sterling Holiday Resorts (India) Ltd.,

A company registered under the companies Act, 1956

Having its office at

A-94/3, 2^nd floor,

Okhla Industries Area, Phase-II,

New Delhi-110020                                                         ….Opposite Party

 

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER                            

                                 

 1.   Whether reporters of local newspaper be allowed to see the judgment?            Yes     

 2.   To be referred to the reporter or not?                                                                   Yes

 

Present:       Sh. Bharat Beriwal,  Counsel for the appellant

                   Sh. Raunak Jain, Counsel for the respondent

 

ANIL SRIVASTAVA, MEMBER

 

JUDGEMENT

 

1.           Aggrieved by the orders dated 17.04.2012 passed by the District Consumer Redressal Forum, South West, Sheikh Sarai, New Delhi in CC-314/2007 in the matter of Super Needle Collection Pvt. Ltd. versus Sterling Holiday Resort, dismissing the complaint relying on the provisions of Section 24(1) of the Consumer Protection Act 1986, as barred by limitation, the Super Needle Collection Pvt. Ltd. have preferred an appeal, for short appellant, under Section 15 of the Consumer Protection Act 1986, the Act, against the Sterling Holiday Resort, hereinafter referred to as respondents, alleging that the orders so passed are contrary to the principles of natural justice, they having not been afforded an opportunity to make their submission on the point of limitation and praying for relief as under:-

 

1. Allow the present appeal and set aside/quash the impugned order of the District Forum and direct the respondent to refund to the appellant the entire amount of Rs. 85,500/- paid by the appellant along with interest @ 24% from the date of payment till the date of realisation;
2. Direct the respondent to pay damages to tune of Rs. 2,00,000/- to the appellant for wastage of time and causing physical and mental harassment to the appellant by the respondent;
3. Direct the respondent to pay to the appellant the costs of the present litigation; and
4. Pass such other order/orders as may be deemed fit in the facts and circumstances of the case and in the interest of justice.

 

2.           Facts of the case necessary for the adjudication of the appeal are these.
3.            The respondents had made wide publicity for the sale of apartments in its various holiday resorts for a period of 99 years in the form of timeshares. In the aforesaid offer respondent had promised timeshare holders a lifetime of fun-filled holidays with a holiday plan offering a fun-filled week of holiday every year in return for a single and reasonable one time investment, valid for a period of 99 years. The respondent had also represented that it is affiliated to resort Condominium India Pvt. Ltd. which enables the Timeshare holders to take holidays abroad. On the basis of respondent’s representation, the complainant applied for allotment of Happy Vistas Holiday Time Share on 25.10.1995, with a regular apartment at Corbett location, product IHTS, for its CEO Mr. Gurnir Singh Gill and his family members. The complainant paid the entire cost of this Timeshare property. The respondent issued an allotment advice dated 11.12.1995, thereby confirming, acknowledging and informing the complainant about the allotment of Happy Vistas Holiday Time Shares at Corbett IVTS 8/3/95 and also issued a certificate of membership dated, 12.01.1996, in the name of the complainant. The respondents had promised that construction of the Resort at Corbett would be completed by 1996-97. The appellant has alleged that the respondent by way of their letter dated 10.02.1999 offered him alternate resort since the construction of the resort applied for by him could not be completed. Since the complainant was not interested to accept the alternate resort, he made a request for the refund of the amount with 24% interest. However the respondents vide their letter dated 11.07.2002expressed their inability to refund. Legal notice was also issued by the complainant requiring the respondents to refund the amount but that notice could also evoke no response. This led to filing of the complaint before the District Forum for the redressal of his grievances. The respondents had contested the matter on merit by filing reply. It would be pertinent to mention that the respondents had resisted the complaint but while resisting the complaint limitation was not taken as the ground.
4.           The District Forum had finally disposed of the complaint as barred by limitation relying on the provision of Section 24A of the Consumer Protection Act 1986 which mandates filing of the complaint before the Consumer Forum within a period of two years from the date the cause of action arose.
5.           This order of the District Forum dismissing the complaint on the ground of limitation has been assailed before this Commission by way of an appeal on the ground that the said orders have been passed without affording them an opportunity to make their submission on the point of limitation and thus in violation of the principles of natural justice.
6.           This matter was listed before this Commission for final hearing on 13.05.2019 when the counsel for both sides appeared and advanced their arguments. I have read and re-read the records of the case and given a careful consideration to the subject matter.
7.           The thrust of the ground taken by the appellant is that the complaint has been disposed of by the District Forum on the ground of limitation, the ground never agitated by the respondents either while filing the reply or during the course of the arguments and therefore they had no occasion to argue on the point of limitation. This order according to the appellant is prima facie in violation of the principles of natural justice. Infact no order can be passed on the judicial side contrary to the principles of natural justice. The fact that the proceeding before the Consumer Forum are judicial stands established by the provisions contained under Section 13(5) of the Consumer Protection Act 1986. The said provision posits as under:

 

“Every proceeding before the District Forum shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code (45/1860) and the District Forum shall be deemed to be a civil court for the purposes of section 195, and Chapter XXVI of the Code of Criminal Procedure, 1973.

 

8.           Thus the orders on the judicial side can be passed by affording due opportunity to the parties to the case. Short of that the order is liable to be set aside. In the given case admittedly the appellant did not have sufficient opportunity to make submission on the point of limitation.
9.           Having regard to the discussion done and the legal position explained I am of the considered view that the order in appeal cannot sustain. It is accordingly set aside and the complainant is accordingly remanded to the District forum for fresh adjudication particularly on the point of limitation after affording reasonable opportunity. If the appellant succeeds on the point of limitation, the District Forum would hear and dispose of the matter on merit. The matter being old pertaining to the year 2007, the entire exercise be completed by the District Forum within four months from the date the appellant files the certified copy of this order before them.
10. A copy of this order be forwarded to the parties to the case free of cost as statutorily required. A copy of this order be sent to the District Forum for information and records.
11. File be consigned to records.

 

(ANIL SRIVASTAVA)

                                                                            MEMBER