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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
D.K. Jain, President; Mrs. Vineeta Rai and Vinay Kumar, Members
Jay Grih Nirman Pvt. Ltd. —Petitioner
versus
Arunoday Apartment Owners’
Association — Respondent
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)
Decided on 13.1.2014
Counsel for the Parties:
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, Advocate.
IMPORTANT POINT
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.
Headnote:Consumer Protection Act, 1986— Section 21(b), 24A— Revision petition against order passed by State Commission whereby the order passed by District Forum dismissing complaint had been reversed and the complaint had been allowed with consequential reliefs—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— Since 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 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—Revision petition allowed. (Paras 8 to 17)
D.K. Jain, 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.
