Judicial Analysis Court Copy Headnote Facts Arguments Court observation

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dr. S.M. Kantikar, Presiding Member and Dinesh Singh, Member
Mridulika Gupta and Ors.—Appellants
versus
M/s. Agarwal Associates (Promoters) Ltd.—Respondent
First Appeal No.622 of 2017
(Against the Order dated 09/01/2017 in Complaint No. 1472/2016 of the State Commission Delhi)
Decided on 18.3.2019

Advocates:
Counsel for the Parties:
For the Appellants:Mr. Vijay Dahiya, Advocate
For the Respondent:Mr. Sunil Kumar, Advocate, Mr. Sunil Dhawar, AR

IMPORTANT POINTS
1. Second complaint on fresh cause will be barred under the principles of Section 11, CPC.
2. Only the legal heirs of the deceased party to the agreement can file the complaint.

Headnote:Consumer Protection Act, 1986 – Section 21(a)(ii) – Real Estate-the appellant is the transferee from the original owner of the flat-transfer took place in 2006 – Fresh allotment agreement with the appellant made – In spite of making 95% of the payment, possession was not given. Amount deposited was forfeited by OP. Hence, complaint before State Commission. State Commission dismissed it on the ground of maintainability. The mother-in-law, the then joint owner, was not made party to the complaint. State Commission dismissed it on the ground of maintainability.
       The agreement was in between the OP and the appellant and her deceased mother-in-law. OP contended before State Commission that the appellant / complainant cannot alone maintain the complaint. She is not the legal heir of the deceased. To this, the appellant / complainant replied that the agreement by the complainant and the deceased Smt. Nirmala Mittal, was joint and indivisible, and the LRs of Smt. Nirmala Mittal, need not to join this complaint.
       Held, the contention of the appellant not accepted. Only the legal heirs of the deceased can file the complaint.
       On this order,
       The appellant filed fresh second complaint by joining all the legal heirs of the deceased along with delay condonation application, for a delay of 663 days under the circumstances mentioned above.
       Grounds for delay –
       1. Transfer of the husband of the complainant to Mumbai.
       2. Again, second transfer to Pune.
       3. Since the appellant/complainant did not have chance to settle, she had to reamin in Delhi onloy and to pursue her legal remedies.
       Transfer Orders filed on record.
       Cancer of the complainant also alleged-Medical copies filed on record.
       State Commission did not condone the delay and dismissed the second complaint also on the ground of delay and on the same cause of action, the first complaint being dismissed. No appeal was filed.
       The earlier complaint also filed by the appellant/complainant was dismissed by National Commission on the same grounds.
       Held, Huge delay in filing complaint cannot be condoned and second complaint on same cause would be barred under section 11 C.P.C.
       Held, the complainant is not entitled for any relief.
       Result: Appeal dismissed.

ORDER

Dinesh Singh, Member—We heard learned counsels for the appellants – complainants and the respondent – opposite party. Authorized representative of the respondent – opposite party was also present. We perused the material on record.

2. The relevant chronology, material to adjudicate this matter, is as below:—

(i) As averred by the complainants, one Kamal Kant Singhal booked a shop with the respondent – opposite party in 2004. In 2006 he transferred his rights in the shop in favour of one Mridulika Gupta and her mother-in-law one Nirmala Mittal. Thereafter the respondent – opposite party made a fresh allotment agreement with Mridulika Gupta and Nirmala Mittal (since deceased). Despite payment of 95% of the consideration amount, possession of the subject shop was not delivered to them. Vide letter dated 15.06.2010 the respondent – opposite party cancelled the allotment of the shop.

(ii) A c.c. no. 280 of 2010 was filed by Mridulika Gupta before the State Commission.

(iii) The State Commission vide its Order dated 07.02.2013 dismissed the complaint on maintainability:

6. Out of the objections, raised on which is about the maintainability of the complaint needs to be decided first. The objection of the OP is that the agreement was between the OP, on the one side and complainant and her mother in law Smt. Nirmala Mittal, now deceased on the other. The complainant alone cannot thus maintain the complaint because she is not legal heir of Smt. Nirmala Mittal. It is only legal heirs of the deceased Smt. Nirmala Mittal, who have the right to maintain the complaint. The only answer given by the counsel for the complainant to this objection by the OP, is that the agreement by the complainant and the deceased Smt. Nirmala Mittal, was joint and indivisible, and the LRs of Smt. Nirmala Mittal, need not to join this complaint.

7. This reply of the complainant is wholly untenable and without substance. It is only the legal heirs of the deceased Smt. Nirmala Mittal, who have the right to file the complaint after her death. In case legal heirs of the deceased Smt. Nirmala Mittal refuse to join the complainant here, may make them OP to the complaint, and the complaint may thereafter proceed.

8. Result is that the complaint is therefore not maintainable, and is dismissed, without adverting to other grounds.

(paras 6, 7 and 8 of the State Commission’s Order in c.c. no. 280 of 2010) (emphasis supplied)

(iv) The said Mridulika Gupta along with the legal heirs of the deceased Nirmala Mittal (G.D. Mittal, K.B. Gupta, Navneet Kumar Mittal, Promila Gupta, Anju Bansal and Babita Aggarwal), the appellants herein, filed a second fresh c.c. no. 1472 of 2016 before the State Commission.

(v) In this second fresh c.c. no. 1472 of 2016 the complainants (Mridulika Gupta and G.D. Mittal, K.B. Gupta, Navneet Kumar Mittal, Promila Gupta, Anju Bansal and Babita Aggarwal) filed an application under section 24 A of the Consumer Protection Act, 1986 seeking condonation of delay in filing the (second fresh) complaint:

2. That the initial cause of action arose when the opposite party cancelled the allotment on 15.06.2010. The complainant approached the Hon’ble Commission on 09.09.2010 by filing a complaint. The said complaint was dismissed on technical grounds on 07.02.2013. Hence the last cause of action that compelled the complainant to seek pending relief was on 07.02.2013 and the said time, according to Consumer Protection act, ended on 07.02.2015 i.e. after two years. However the accompanying complaint is being filed in December, 2016 filed with a delay of 663 days (07.02.2015 – 05.12.2016) but the complaint was helpless under below mentioned circumstances.

3. That soon after on 18.05.2013, the complainant’s husband got transferred orders from his employer i.e. Bank of Baroda asking him to go to Mumbai. The complainant’s husband shifted to Mumbai along with the whole family including complainant; and thereafter got further transferred to Pune on 28.12.2015. Th

Click Here to Read the rest of this document

Judicial Analysis

SupremeToday

IMPORTANT POINTS1. Second complaint on fresh cause will be barred under the principles of Section 11, CPC.2. Only the legal heirs of the deceased party to the agreement can file the complaint.

Judicial Analysis

IMPORTANT POINTS
1. Second complaint on fresh cause will be barred under the principles of Section 11, CPC.
2. Only the legal heirs of the deceased party to the agreement can file the complaint.