COMPLAINT FILED:25.02.2011

        DISPOSED ON:04.02.2012

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

4^th DAY OF FEBRUARY 2012

  PRESENT :-  

           SRI. B.S. REDDY                                  PRESIDENT

           SRI. A. MUNIYAPPA                                  MEMBER

       COMPLAINT NO.388/2011

O R D E R

Sri.B.S.REDDY,PRESIDENT

The complainant filed this complaint Under Section 12 of the Consumer Protection Act of 1986 seeking direction against the opposite party (herein after refer to as OP) to pay interest at 12% p.a. on the deposit amount of Rs.2,48,000/- amounting to Rs.99,500/- and to pay penal interest at 18% p.a. on the accrued interest of Rs.99,500/- and for compensation of Rs.3,00,000/- for mental agony on the allegations of deficiency in service on the part of the OP.

2. The brief averments made in the complaint are as follows:

The complainant in response to the Notification issued by OP for the allotment of house sites at Keshema, Hosur Road, Bangalore, applied for the allotment of site measuring 30 X 40 feet and deposited an amount of Rs.2,48,000/- in three instalments as under.

a)   Rs.1,00,000/- on 27.02.2006.

b)   Rs.80,000/- on 31.05.2006

c)    Rs.68,000/- on 08.12.2006

In view of delay in procuring the land for the formation of sites, the OP issued Notification dt.10.08.2007 and 27.07.2007 indicating that in respect of such of the deposition who wanted to refund the amount deposited will be refunded with interest at 12%. OP has refunded the deposit amount with interest at 12% p.a. as per the Notifications and also as per the decision arrived at in the General Body Meeting held on 28.07.2007 and 13.12.2008 to some of the members. The complainant applied for refund of the deposit of Rs.2,48,000/- with interest at 18% due thereon. OP has refunded only the principal amount of Rs.2,48,000/- on 26.10.2009 and has not paid the interest at 12% p.a. on the deposit amount as promised. Since, OP has failed to pay the interest of Rs.99,500/- it is liable to pay penal interest at 18% p.a. The complainant caused legal notice dt.18.01.2010, by hand and another legal notice dt.13.08.2010, OP has not replied and the payment. The cause of action arose on 26.10.2006 when the application is filed for membership. Hence the complaint.

3. On appearance OP filed version contending that OP has entered into Memorandum of Understanding during the year 2006 with M/s Presidency Group, Bangalore (Developer) to form layout. At the time of entering into Memorandum of Understanding a sum of Rs.6(Six) Crores  has been paid to the developer. The Developer has to form the layout and develop and complete the project within 6 months and sale formalities and the time for completion of transaction can be extended only on account of acts of either parties. Clause-H of Memorandum of Understanding provides that it is specifically agreed between the parties thereto the layout will be developed after the registration of the site as per the BMRDA Norms. The BMRDA has issued Circular during the month of July 2006 by banning the conversion of Agricultural lands into Non-Agricultural purpose throughout Bangalore. The Developer could not form layout because of the ban issued by the BMRDA and handed over the sites to OP as agreed in Memorandum of Understanding dt.14.04.2006. That is why the developer could not complete the layout and OP could not allot the sites. The developers have purchased lands at Attibele in respect of Kshema Projects. Apart from that the developer purchased another about 7 acres of converted land and has paid advance to the farmer and the farmer has executed General Power of Attorney in the name of OP. On 16.12.2009 the Op has written letter to Anekal Development Authority requesting to approve the sanction plan to the above layout to form the layout. The Anekal Development Authority has approved the plan of the layout on 25.11.2010.

            It is admitted that the complaifnant applied for site measuring 30 X 40 feet for Keshema Layout, and remitted totally a sum of Rs.2,48,000/- in three instalments. Anekal Planning Authority has already approved the layout plan of Kshema Project on 25.11.2010 and OP is ready to allot the sites to its members after completion of the development work in the said layout by the developer. The Circulars dt.10.08.2007 and 27.07.2007 were issued in the context of the banning of conversion of agricultural lands into non-agricultural lands in that particular area which is applicable to the project taken up at Hoskote, but the general body of OP has passed resolution not to go for Hoskote project and hence the circulars issued have become redundant and not binding. OP has not paid any interest to any of its members while refunding the amount deposited by its members. There were no general body meetings held on 28.07.2007 and 13.12.2008, however, in the general body meeting held on 28.09.2007 it is not passed resolution to pay interest at 12% to the members of OP when they sought for refund of amount. The complainant sought refund of amount deposited and the amount has been refunded to her on 26.10.2009. There is no pre-condition or contract between the complainant and the OP for payment of 12% interest on the amount remitted in advance for allotting site at Keshema Project. OP is neither liable to pay interest or penal interest on the deposit amount. OP is working under no loss or no profit basis. The General Body Meeting of OP held on 29.09.2010 it has unanimously passed resolution. In pursuance of that resolution OP has intimated on 06.10.2010 to such members who have withdrawn the deposits pertains to Kshema/Sangamithra requesting them to avail the opportunity of getting sites. There is no cause of action to file the complaint. Even the date of cause of action mentioned at Para-12 of the complaint is considered as correct, the complaint is filed beyond the period of limitation, the complaint is liable to be dismissed as barred by time. There is no any deficiency in service on the part of OP. Hence, it is prayed to dismiss the complaint with exemplary costs.

4.               The complainant in order to substantiate the complaint averments filed her affidavit evidence. The President of OP filed affidavit evidence in support of the defence version. Both parties written Arguments.

5.               Arguments on both sides heard.

6.               Point for consideration is as under:

 Whether the complaint filed by the complainant

 is within the period of limitation.

7.We record our findings on the above point in negative:

R E A S O N S

At para-12 of the complaint, it is pleaded that the cause of action for the above complaint arose on 26.10.2006 when the application is filed for membership. At para-36 of the version it is pleaded that the cause of action mentioned at Para-12 of the complaint is false, there is no cause of action to file the complaint. Even the date of cause of action mentioned, is considered as correct, the complaint is filed beyond the period of limitation and the complaint is liable to be dismissed as barred by time. Thus the main contention of OP is that the complaint is not filed within 2 years of the cause of action shown in the complaint, as such the complaint is liable to be dismissed as barred by limitation.

8.   Section-24A(1) of the Consumer Protection Act provides the period of limitation for the complaints to be filed stating that the complaint shall not be admitted unless it is filed within 2 years from the date on which the cause of action has arisen.

The cause of action shown at Para-12 of the complaint is 26^th Oct, 2006. The complaint is filed on 25.02.2011, as such it is clear that the same is not filed within period of 2 years from the date of cause of action shown in the complaint.

9.In AIR 2009 SC 2210, the State Bank of India V/s B.S.Agriculturual Industries, the Apex Court held that provision as to Limitation 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 there under. 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, sufficient cause has been shown and delay condoned for the reasons recorded in writing.

 In Haryana Urban Development Authority V/s B.K.Sood, (2006) CPJ(1) (SC) the Hon’ble Supreme Court held that Section24-A of the Consumer Protection Act cast 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.

10.The principles laid down in the above ruling clearly goes to show that the Consumer Forum must deal with complaint on merits only if the complaint has been filed within 2 years from the date of accrual of cause of action and if beyond the said period, sufficient cause has been shown and delay condoned for the reasons recorded in writing. In this case the complainant has not shown any cause much less sufficient cause for condoning the delay in filing the complaint. Under these circumstances, we are of the view that the complaint is barred by limitation. Accordingly, we proceed to pass the following:

O R D E R

The complaint filed by the complainant is dismissed as barred by limitation.  Considering the nature of dispute no order as to costs.

Send copy of this order to both the parties free of costs.

(Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 4^th day of February-2012.)

MEMBER                                                               PRESIDENT

Cs.