Date of Filing:17/07/2014
Date of Order:23/08/2016
ORDER
BY SMT.BHARATI.B.VIBHUTE, MEMBER
1. This is the complaint filed U/S 12 of the Consumer Protection Act, 1986 against the opposite party (hereinafter referred in short as O.P) alleging deficiency in service on the part of the O.P and prays for direction to the O.P to allot a site measuring 40 feet X 60 feet in favour of the complainant or in the alternative complainant prays for direction to the O.P. to refund the amount of Rs.44,000/- with interest at the rate of 18% from 1.10.1985 till the date of actual payment and also claiming cost of the proceedings.
2. The brief facts of the complaint is that, the O.P. is a Co-operative society formed with an object to develop and allot housing sites to its members. The complainant interested to acquired one site, approached the O.P. Society and the O.P. promised to the complainant that they will allot a site measuring 2400 Sq. feet at Chanikyapuri Layout, Bangalore. Accordingly the complainant had paid Rs 10,000/- vide challan No.540 dated 1.10.1985 and Challan No.1043 dated 9.9.1986 for a sum of Rs. 34,000/- in total Rs.44,000/- paid to the O.P. After receiving the amount the O.P. issued a provisional letter of allotment of site bearing Account Roll No.SAS-422 dated 24.3.1987 at Chanikyapuri Layout, Bangalore in the name of the complainant. After receiving the aforesaid sum the O.P. had promised to give the possession of the site allotted to the complainant within a reasonable time, but the O.P. had failed to allot the site in favour of the complainant. The complainant is the member of O.P. society from 1.10.1985 and the complainant waited about 29 years for getting a site as promised by the O.P but so far the O.P. society neither refunded the entire amount with accrued interest thereon nor provided a site. Hence the complainant alleges that the O.P. has committed deficiency of service and recently on 20.6.2014 the complainant has given representation to the O.P. requesting to allot a site in the aforesaid layout or in the alternative to refund entire amount with interest, but O.P has showed no interest. Hence this complaint.
3. Upon issuance of notice, O.P neither appeared nor contested the case till this date. Consequently, O.P. placed exparte.
4. To substantiate the above case, the complainant has filed the affidavit evidence along with documents. We have heard the arguments.
5. On the basis of pleadings of the complainant, the following points will arise for our considerations are:-
(A) Whether the complaint is barred by
limitation?
(B) Whether the complainant has proved
deficiency in service on the part of the O.P?
(C) Whether the complainant is entitled to
the relief prayed for in the complaint?
(D) What order?
6. Our answers to the above points are:-
POINT (A): In the Negative.
POINT (B) and (C) : Does not arise for consideration
POINT (D) : As per the final order
for the following:
REASONS
POINT No (A):-
7. On perusal of the complaint and its annexures the question of limitation comes forefront among other points /issues to decide the question of limitation. Accordingly, on perusal of the complaint along with the provisional letter of allotment of site dated 24.3.1987 it clearly discloses that the O.P after receiving the amount issued provisional letter of allotment of site in favour of the complainant by its chairman and secretary. Also on perusal of the money paid receipts it also discloses that the complainant paid Rs.44,000/ towards the allotment of site in question.
8. Upon service of notice on O.P but for the reasons best known to O.P. did not appear before the Forum and remained absent consequently proceed to place ex-parte. Hence, the allegations made in the complaint remained unchallenged. The judgment or orders are not automatic and the law mandates that the complainant has to prove his case by placing the cogent evidence.
9. It is worth to mention that, as per the saying of the complainant she waited for allotment of site more than 29 years and recently she has given the representation to allot the site in question. It is not in dispute that the complainant paid a sum of Rs.44,000/- to the O.P. It is pertinent to note that, the complainant not placed any credible evidence in order to show that the cause of action continued till giving the representation and also the complainant filed her affidavit evidence without disclosing husband’s name and her age and even in the complaint petition. The complainant filed the complaint very casually and not made out how continuing cause of action occurred to her since the year 1986 in order to overcome the limitation as contemplated under Section 24 A of the Consumer Protection Act it reads thus:
“(1) The District Forum or 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 Sub Section(1) of the complaint may be entertained after the period specified in Sub Section (1) if the complainant satisfies the District Forum or 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, or the State Commission or the District Forum as the case may be records its reasons for condoning such delay.
10. In the light of above provision of law the complainant has also not filed any delay condonation application along with the complaint in order to explain satisfactorily to this Forum to condone the delay. The complainant also relied on the decision of Hon’ble National Commission reported in I(1986) CPJ 81 NC with all respect going through the said decision the facts involved in the decision given by the Hon’ble National Commission is quite different from the fact involved in the present case in hand. Hence the ratio of the above said decision cannot be applicable in the case on hand. Viewing from any angle, the complaint is hopelessly barred by limitation. In the light of above discussion we accordingly answered the Point No.(A) in the negative.
POINT (B) & (C):
11. In view of the finding given while answering Point No.(A) in the negative and these points does not arise for consideration.
POINT No.(D)
12. On the basis of the findings given above on the point No.(A) to (C) and in the result, we proceed to pass the following:-
ORDER
- 01. The complaint is dismissed. No order as to cost.
- Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 23rd Day of August 2016)
MEMBER MEMBER PRESIDENT
