NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION
PETITION NO.3949 of 2008
(From the Order dated 09.09.2008 in S.C. Case
No. FA/08/237 of the State
Consumer Disputes Redressal Commission, West
Bengal)
Jay Grih Nirman Pvt. Ltd.,
A Company Registered under the
Companies Act, 1956 having its
Registered Office at Premises No. 11,
Crooked Lane, 1st Floor,
Kolkata – 700 069. ..
Petitioner
Vs.
Arunoday Apartment Owners’ Association
A Registered Association, being represented by
Mr. Arun Kumar Sen, Authorised Signatory,
Having its office at 4A, N.N. Dutta Road, under
P.S. Jadavpur, Kolkata – 700 040. .. Respondent
BEFORE: -
HON’BLE MR. JUSTICE D.K. JAIN, PRESIDENT
HON’BLE MRS. VINEETA
RAI, MEMBER
HON’BLE MR. VINAY KUMAR,
MEMBER
For the Petitioner : Mr. Rakesh Mishra, Advocate
Mr.
Krishnendu Datta, Advocate
Mr.
Abhinav Hansaria, Advocate
For the Respondent : Mr. Dibyadyuti Banerjee, Adv.
Mr.
Abhijit Sen Gupta, Adv.
O R D E R
(Pronounced on 13th day of January,
2014)
D.K. JAIN, J., PRESIDENT
This
revision petition under Section 21(b) of the Consumer Protection Act, 1986 (for
short “the Act”) has been preferred by the opposite party in the Consumer
Complaint (D.F. Case No. 180 of 2006) against order dated Sept.9, 2008 passed
by the State Consumer Disputes Redressal Commission, West Bengal (for short
“the State Commission”) in first appeal (SC Case No. FA/08/237), whereby the
order passed by the District Consumer Disputes Redressal Forum, Alipore (for
short “the District Forum”) dismissing the aforesaid complaint has been
reversed and the complaint has been allowed with consequential reliefs.
2. Briefly
stated, the facts giving rise to this petition are as follows:
In
August 1981, by three separate registered Deeds of Conveyance, the three original
owners of the subject land transferred their undivided 1/3rd share
each to one Jupitor Drug Company, which in turn, entered into an agreement
dated Aug.23, 1988 with the petitioner, for development of the land by
constructing flats, etc.. Flats with car parking area in the basement, one
assembly hall on one side and one maintenance area on the other side of the
ground floor of the building were constructed by the petitioner. According to
the petitioner, sale deeds in respect of the flats were executed in the year
1990 and possession of the flats/car parking spaces were also delivered to the
respective buyers immediately thereafter.
3. Upon
purchase of the flats and car parking, the flat owners formed a co-operative
society, named as Arunoday Apartment Owners Association, which was registered
on June 12, 2003. Mrs. Monika Sen was a
party to the tripartite agreement, dated April 17, 1990, between the owners,
developers and herself, as purchaser of one of the flats. She is also one of
the members of the association. It seems that there was some dispute relating
to the possession of the ‘assembly hall’ and ‘maintenance area.’ The
petitioner/developer’s stand was that both the said areas belonged to them and
the owner, whereas the association claimed that all the flat buyers had
undivided share in the said two areas. However, having failed to get the
possession of the said assembly hall and maintenance area, alleging deficiency
in service on the part of the petitioner in not handing over the possession of
the said spaces, on Oct.30, 2006 a complaint against the petitioner was filed,
inter alia, praying for handing over of the possession of the ‘assembly
hall’ and the ‘maintenance area’ on the ground floor along with
compensation.
4. The complaint was
resisted by the petitioner on several grounds, including the objections that
the complaint was barred by limitation; the association had no locus standi to
file the complaint and that under the provisions of the WB Building
(Regulations of promotion of construction and transfer by promoters) Act, 1993
(for short “the WB Act”) any dispute between the purchaser of any flat and the
promoter had to be resolved by the mechanism stipulated in the Act and not in
any other proceedings. The objection of the petitioner relating to limitation
was rejected, vide order dated May
28, 2008. Nevertheless, the District Forum dismissed the complaint on merits
observing, thus:-
“In the present case the O.P./developer had entered into contract
separately with the purchasers of the flats under Arunodaya Apartment, who
formed an Association later on known as Arunodaya Apartment Association. A copy of one such contract between the O.P/developer,
the land owner and one purchaser of flat viz. Ms. Monika Sen entered on
17/04/1990 has been filed by the petitioner.
The entitlement of the purchaser has been mentioned in the Second
Schedule of the contract which has been shown as a flat of 1177 sq. ft.
together with common areas and facilities, staircases, passages, use of lifts
among with a covered car parking space for one car inside the said
building. There is no mention of a right
to use any Assembly hall or Maintenance area.
Rather it becomes clear after going through the terms of the contract at
paras IV(m) and IV(g) that the purchaser of flat was not granted any rights in
respect of the land left out in the premises beyond the built up area of the
flat. The Assembly hall and the Maintenance
area are lying at the ground floor and are outside the built up area of the
flats. The petitioner association has
also claimed that the Assembly hall and the Maintenance area had been built by
the developer out of the money realized by the developer from the flat
purchasers. But this was not supported
by any documents at all and as such we have to reject the claim as baseless.”
5. Being dissatisfied
with the order passed by the District Forum, the complainant association filed
an appeal before the State Commission. The State Commission summarized the
rival stands into three points, viz., (i) whether the complainant association
was a “consumer” under the Act; (ii) whether the complaint was barred by
limitation and (iii) whether the complainant association was entitled to
possession of the ‘assembly hall’ and the ‘maintenance room’ in terms of the
sale deeds executed with each of the flat owners. All the three points having been decided in
favour of the complainant, the opposite party/developer is before us in this
revision petition.
6. Ld. Counsel
appearing for the petitioner vehemently submitted that the impugned order
suffers from the vice of non-application of mind inasmuch as the State
Commission has failed to take into consideration the terms of the purchase
agreement and the sale deed, which clearly define the proportionate undivided
interest of the flat owners in the common areas, “such as staircases, lobbies,
pump, drainages…….” etc. and show that the alleged ‘assembly hall’ and ‘maintenance
hall’ did not form part of the common area and they continued to belong to the
developer for their own use. It was pleaded that the WB Act clearly bars any
civil suit or the like for redressal of a dispute between the purchasers of the
flat and the promoters. It was strenuously argued that the possession of the
flats having been delivered and sale deeds having been executed in the year
1994 and even the association having been formed and registered as a
cooperative society on June 12, 2003, the complaint filed on Oct.30, 2006 was
clearly barred by limitation.
7. Ld. Counsel
appearing on behalf of the complainant, on the other hand, supported the
decision of the State Commission. It was submitted that non-delivery of
possession of the assembly hall, etc., by the petitioner/developer was a
continuing default and, therefore, the complaint was filed within time.
8. Since we are of
the view that in the present case, the complaint was not filed by the
association within two years from the date on which the “cause of action” had
arisen, it was barred by limitation and, therefore, it would be unnecessary to
deal with the contentions touching upon the merits of the complaint.
9. Section 24A of the
Act bars any forum set up under the Act, from admitting a complaint, unless the
complaint is filed within two years from the date on which, the “cause of
action” has arisen. The provision expressly casts a duty upon all the three
Fora not to admit a complaint filed beyond the period prescribed in the
Section, unless the complainant satisfies the Consumer Forum, 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. In SBI Vs. B.S. Agriculture
Industries (2009) 5 SCC 121, dealing with the same provision, the Supreme
Court has opined, thus:
“11…. It would be seen from the aforesaid provision that it is
peremptory in nature and requires the 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 a legislative command to the
consumer forum to examine on its own whether the complaint has been filed
within the limitation period prescribed thereunder.
12. 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, the sufficient cause has been shown and delay condoned
for the reasons recorded in writing. In
other words, it is the duty of the consumer forum to take notice of Section
24-A and give 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.” (Emphasis
supplied by us)
11. It has thus been
held by the Supreme Court that Section 24A of the Act mandates that before
admitting a complaint, all the Fora constituted under the Act, must examine
whether or not the complaint under the Act has been preferred within two years
from the date on which the “cause of action” has arisen.
12. Explaining the
meaning and import of the term “cause of action” in Kandimalla Raghavaiah and Company
Vs. National Insurance Company and Another (2009) 7 Supreme Court Cases 768,
the Supreme Court has observed as under:-
“The term “cause of action” is neither defined in the Act nor in
the Code of Civil Procedure, 1908 but is of wide import. It has different meanings in different
contexts, that is when used in the context of territorial jurisdiction or
limitation or the accrual or right to sue.
Generally, it is described as “bundle of facts”, which if proved or
admitted entitle the plaintiff to the relief prayed for. Pithily stated, “cause of action” means the
cause of action for which the suit is brought. “Cause of action” is cause of
action which gives occasion for and forms the foundation of the suit.”
It has been held that the term “Cause of action” is cause of
action which gives occasion for and forms the foundation of the suit.
13. Tested on the
touchstone of the afore-noted principle, we are of the opinion that the
complaint preferred by the complainant association on Oct.30, 2006 was barred
by limitation and in the absence of an application for condonation of delay in
filing the same in terms of the Sub-Section 2 of Section 24A of the Act, it
could not be admitted by the Fora below for adjudication.
14. It is not in
dispute that on March 2, 1990 an agreement for construction of flat was entered
into between the owners of the subject land, the petitioner as developer and
one Ms. Monika Sen as the purchaser; on April 17, 1990 sale deed in favour of
the said Monika Sen was executed. In both the said documents there is a recital
as to the interest of each of the flat buyers would be having in the land
comprised in the premises described in the schedules to the deeds but there is
no reference to any ‘assembly hall’ or to a separate ‘maintenance room’
possession whereof is being claimed by the association. We find that the
averments in the complaint in this behalf are quite vague. Nevertheless,
paragraphs 4 to 8 of the complaint do spell out the stand of the complainant
and would be useful for deciding the question of limitation. The same are
extracted below:
“4.
That thereafter the said Jay Grih Nirman (P) Ltd. by procuring the purchases of
flats and car parking spaces had constructed the said building on the basis of
the said sanctioned building plan, which is a G + 5 storyed building comprising
15 flats (3 on each floor) with the car parking area in the basement and as per
the said building plan the developer has also constructed one assembly hall on the
one side of the ground floor and one maintenance area on the other side of the
ground floor of the said building by the money of the intending flat
purchasers. On such construction of the building the developer has already
delivered the possession of the respective flats and car parking spaces to the
said intending purchasers who had invested their money to the developer for the
purpose of construction of their flats and the developer also executed sale
deeds of those flats and car parking spaces to the respective flat purchasers.
5.
That on such purchase of the flats and car parking spaces the said purchasers
have formed an Apartment Owners’ Association in the name and style of “Arunoday
Apartment Owner’s Association”, for the purpose of maintaining and protecting
the common interest of the said purchasers. The said association of purchasers
has already registered their association in the office of the West Bengal
Apartment Owner’s Association vide registration Serial No.13A of 2003. A
registration certificate to that effect has been annexed herewith as Annexure
C.
6.
That since formation of the said Apartment Owner’s Association the petitioner
Association through its Management Board has been looking after the common
interest of the flat owner’s of that building and found that the developer who
had constructed the building with the money of the purchasers of flats and car
parking spaces has been committing deficiency in service in preventing the
petitioner Association and its members, who are the owners of apartments
independently from using the said assembly hall and the maintenance area for
their purpose and have been locking up the same and are using the same, to
store his junks.
7.
In the year 1996 the said developer had tried to convert the said assembly hall
and the maintenance room together with the basement car parking area into two
flats by making construction therein. But upon the complaints of one of the
apartment owners of the said building to the then Chief Minister, Mr. Jyoti
Basu, the Mayor and the Commission of K.M.C., etc., such construction was
demolished and the petitioner Association recovered the access to the car
parking area for its members but the said assembly hall and the maintenance
area which are the common property of the apartment owners, have not yet been
handed over and the same are still lying under lock and key by the developer
and the developer has already started construction on one portion of the said
professed areas of assembly hall.
8.
That your petitioner and its members on several occasions, requested the
developer to hand over the key of the said assembly hall and maintenance area
to them, but the developer with a mala fide intention and to make wrongful gain
from the said common property of the apartment owners is not handing over
possession of the same and as a result the petitioner and its member are
suffering huge loss of common maintenance fund to the tune of Rs.20,000/- per
month since long.”
15. It is manifestly
clear from the above-extracted paragraphs that right from the threshold, when
the possession of the flat and parking areas were delivered to the respective
purchasers sometimes in the year 1994, they were never put in possession of the
two areas on the ground floor where, according to them, an ‘assembly hall’ on
one side of the ground floor and one ‘maintenance area’ on the other side had
been constructed by the developer. On their own showing, in the year 1996, the
developer tried to convert the said areas into two flats by making construction
thereon but upon complaint to the Chief Minister such construction was
demolished and since the formation of the association i.e. on June 12, 2003,
the developer had prevented them from using the said ‘assembly hall’ &
‘maintenance area’ by locking up and using the same to store their junks. Thus, even assuming for the sake of argument
that the buyers sanguinely believed that in the near future they will be
permitted the use of the subject areas, at least in the year 1996 when the
developer allegedly tried to convert the ‘assembly hall’ and ‘maintenance area’
into two flats, which action was successfully foiled by the flat owners, made
the stand of the developer abundantly clear to them that they were not treating
these parcels of land as common areas in which all the flat owners had
undivided equal share. Hence, if at all there was any deficiency of service on
the part of the developer in not handing over the possession of the said areas,
the “cause of action” to sue the developer definitely arose in the year 1996,
if not in 1994, when the possession of the flats was admittedly handed over to
them. Furthermore, if the association,
which was formed and was registered on June 12, 2003 for looking after the
interest of the flat owners jointly, no reason is forthcoming as to why the
complaint against the developer, the petitioner herein, was filed only on Oct.
30, 2006.
16. As regards the plea
that since the developer was under an obligation to hand over the possession of
the subject areas to the flat owners, the “cause of action” has to be treated
as a “continuing cause of action” and, therefore, the complaint was filed
within time, the same is noted to be rejected.
We may note at the cost of repetition that there is a clear averment in
the complaint that in the year 1996 developer’s attempt to convert the areas in
question into two flats was successfully thwarted. This averment, by itself, made the stand of
the developer, qua the subject areas, more than clear to the flat buyers to the
effect that they were not willing to part with the possession of these two
areas in question and knocks the bottom of the Complainant’s case in so far as
the question of accrual of “cause of action” is concerned. Looked at from any angle, we are convinced
that the complaint by the association, alleging deficiency of service, was
hopelessly barred by limitation and could not be admitted for adjudication on
merits, more so when there was no prayer for condonation of delay in filing the
same.
17. For the aforesaid
reasons, the revision petition is allowed; the orders of the Fora below on the
question of limitation are set aside and DF Case No. 180 of 2006 is dismissed
as barred by limitation.
18. During the course
of hearing, it was pointed out that some civil litigation in respect of the
‘assembly hall’ is pending. If that be
so, we clarify that our discussion above is solely for the purpose of
adjudication on the question of limitation under Section 24-A of the Act, and
shall not be construed as an expression of opinion on the merits of the
aforesaid complaint or any other proceedings between the parties before us.
19. The parties are
left to bear their own costs.
…………….. . . . . .
(D.K. JAIN, J.)
PRESIDENT
. . . . . . . . . . . . . . . .
(VINEETA RAI)
MEMBER
. . . . . . . . . . . . . . . .
(VINAY KUMAR)
MEMBER
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