PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Above mentioned three revision petitions arises out of common order dated 7.9.2010, passed by State Consumer Disputes Redressal Commission, Panchkula (for short as State Commission. Along with it, petitioner has filed an application for condonation of delay.
2. Brief facts are that petitioner (complainant in District Forum) was allotted plot No. 102, Pace City Sector 37, Gurgaon, vide allotment letter dated 28.6.1996 and possession of plot was delivered to him on the same day. After depositing the entire price, conveyance deed was executed in petitioners favour. Petitioner got sanctioned the site plan for raising construction and completed construction of basement on the plot. Thereafter, petitioner filed a complaint before District Forum alleging deficiency of service on the part of the respondents, on the ground that a high tension electric line of 33 KV was passing over his plot and same has not been removed despite repeated requests.
3. Respondents case is that, at the time of delivery of possession of the plot it was disclosed to the petitioner that high tension wire was passing over the plot and same was assured to be shifted within a short period. Thereafter, for removal of the said high tension electric line, HUDA authorities sent letter dated 13.9.1999 to Dakshin Haryana Bijli Vitran Nigam Ltd. Giurgaon. Again, reminder was sent on 18.1.2001. Estimated expenses of Rs. 5,75,900/- for removal of the electric line were deposited with the Nigam. After depositing the aforesaid amount, HUDA authorities again sent reminder dated 8.5.2001 for removal of the electric line at earliest. Thus, denying that it a case of any kind of deficiency of service, respondents prayed for dismissal of the complaint.
4. On appraisal of the pleadings of the parties and evidence brought on record, District Forum accepted the complaint, vide its order dated 4.5.2001 and issued the following direction to the respondents;-
œ¦¦ the respondent is directed to remove the electric wire passing over the plot in question, if it has not been removed so far. The respondent is further directed to pay interest @ 18% p.a. over the entire deposits from the respective date of deposits till the date of payment?.
5. Aggrieved by the order of District Forum, respondents filed (Appeal No. 2569 of 2004) whereas, petitioner filed (Appeal No. 2115 of 2004) for grant of compensation on account of loss of income, loss of interest paid to respondent No. 4, from whom petitioner had obtained loan for raising construction over its plot and to pay the damages on account of mental agony and harassment.
6. Vide impugned order, appeal of the respondent was allowed and complaint of the petitioner was dismissed. Consequently, appeal of the petitioner for enhancement of compensation was dismissed.
7. State Commission also accepted the appeal filed by the respondent, in the execution proceedings and set aside order dated 30.9.2005, of the District Forum.
8. Aggrieved by the order of the State Commission, petitioner has filed these revisions.
9. It contended by learned counsel for the petitioner that State Commission did not consider the fact that moot point in the present case is not the allotment of the disputed plot which was allotted in the year 1996 but is of the removal of high tension electric line. Since, three Government departments were involved and are responsible for rectifying the deficiency in service hence, time consumed by them in inter-correspondence between them should be excluded from the period of two years limitation. In the peculiar facts and circumstances of the case, it is difficult to ascertain the exact date from which limitation of two years will start. Hence, to say that complaint is time barred is apparently unjustified.
10. Averments with regard to condonation of delay have been narrated in para 2 of the application, which read as under;
œ2. That on 7.9.2010, the Honble Consumer Commission dismissed the First Appeal No. 2115 of 2004 of the petitioner for enhancement of compensation and allowed the First Appeal No 2569 of 2004 of the respondents and set aside the order dated 4.5.2004 passed by District Consumer Forum and allowed the First Appeal No. 247 of 2007 filed by the respondents against the execution application and set aside the order 30.9.2005. Thereafter, the petitioner filed a C. M. No. 419 of 2011 in First Appeal No. 2115 of 2004 before State Consumer Commission Haryana on 23.8.2011 for recalling the order dated 7.9.2010 which was dismissed the same on 7.9.2011, thus the petitioner could not file the revision petition in this Honble Court against the order dated 7.9.2010 passed by State Consumer Commission. The present application is bonafide and unintentional?.
11. Thus, petitioner has filed the application on 23.8.2011 for recall of order dated 7.9.2010. It shows that application for recall of the order was filed, after more than ten months. No reason, whatsoever has been given as to why application for recall was filed after ten months. Hence, no ground is made out for condonation of delay in filing the present revision.
12. State Commission, vide impugned order has observed;
œIt is well settled principle of law that any relief can be claimed under the Consumer Protection Act, 1986(as amended upto date) within two years from the date on which the cause of action accrues.?
Section 24-A of the Act, 1986, deals with this situation which is reproduced as under ;
œ24-A. Limitation period :- (1) The District Forum, 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) a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, 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, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.?
13. The above provision is clearly peremptory in nature requiring the Consumer Fora to see at the time of entertaining the complaint, whether it has been filed within the stipulated period of two years from the date of cause of action.
14. In the instant case undisputedly the possession of the plot in question was delivered to the complainant on 28.06.1996. The conveyance deed in respect of the plot in question was executed in favour of the complainant and site plan was sanctioned from the opposite parties-HUDA for raising construction. The complainant did not stop here and he raised loan of Rs.11,67,000/- from Haryana Financial Corporation-opposite party No.4 and completed part of construction on the plot. Though the case of the complainant is agreed by the opposite parties for not removing the high tension wire which according to the complainant were passing through his industrial plot but the same have been removed by the opposite parties during the pendency of the complaint. It is further the case of the complainant that he had been pursing his matter with the opposite parties and till the filing of the complaint, the high tension wires were not removed. We are constrained to observe that mere entering into correspondence with the opposite parties, does not extend the period of limitation. If the complainant was aggrieved, he could have filed complaint within two years after obtaining the possession of the plot i.e. 28.06.1996 and as such the present complaint filed by the complainant was not entertainable.
15. Reference may be made to the observations made by the Honble Supreme Court in case of State Bank of India Versus M/s B.S. Agricultural Industries (1) 2009(2) CPC 1, wherein it has been held as under:-
œLimitation- Cause of action arose on 7.6.2004 when complainant did not receive demand draft or other documents from the bank “ Complaint was filed on 5.5.1997 clearly barred by limitation “ No application for condonation of delay filed nor cause of delay explained “Writing of letter to bank or any reply of bank cannot extend the limitation “ Aspect of limitation not considered though specific plea was taken in this regard “Orders of Fora below set aside “ Complaint dismissed as barred by time.?
16. The Honble Apex Court in case of Kandimalla Raghavaiah and Co. versus National Insurance Co. Ltd. and another, 2009 CTJ 951 (Supreme Court) (CP)took view of the observations made in case State Bank of India v. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) =JT 2009(4) SC 191, as under:-
œ8. It would be seen from the aforesaid provision that it 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 thereunder. 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 24A 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.?
17. In para No.13 it has been held by the Honble Supreme Court?
œThe term œcause 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 of right to sue. Generally, it is described s œbundle of facts?., which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, œcause of action? means the cause of action for which the suit is brought. œCause of action? is cause of action which gives occasion for and forms the foundation of the suit. In the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out.?
18. The observations made by the Honble Apex Court in the authoritative pronouncements discussed above, are fully attracted to the facts and circumstances of the present case. It is not the case of the complainant that he had moved an application for condonation of delay in filing of the complaint before the District Forum and thus the complainant could have sought any relief under the Act, 1986 by filing complaint within two years from 28.06.1996 when the possession of the plot was delivered to the complainant. The subsequent correspondence between the parties is not to be taken as a recurring cause of action to seek remedy of the Act, 1986.
19. On the point of recurring cause of action reference may be made to the observation made by the Honble Supreme Court in Raja Ram Maize Products etc. vs. Industrial Court of M.P. and other AIR 2001 Supreme Court 1676,wherein it has been held that:-
œ10. The concept of recurring cause of action arising in a matter of this nature is difficult to comprehend. In Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, AIR 1959 S.C. 798 it was noticed that a cause of action which is complete cannot be recurring cause of action as in the present case. When the workers demanded that they should be allowed to resume work and they were not allowed to resume work, the cause of action was complete. In such a case the workers going on demanding each day to resume work would not arise at all. The question of demanding to allow to do work even on refusal does not stand to reason.?
20. In view of the above it is clearly established that the complaint filed by the complainant before the District Forum was barred by limitation and in view of the law settled by the Honble Apex Court in State Bank of Indias case (Supra), the complaint was not entertainable. The District Consumer Forum has committed great error by not considering the objection raised on behalf of the opposite parties in the written statement with respect to the limitation and as such the impugned order dated 04.05.2004 is not sustainable in the eyes of law.
21. As a sequel to our aforesaid discussion appeal NO. 2569/2004 titled as œ HUDA versus Annu Enterprises? is accepted, the impugned order dated 4.5.2004 passed in complaint No. 2190/2004 is set aside and the complaint is dismissed. Consequently, appeal No. 2115/2004 titled as œAnnu Enterprises vs. HUDA? for enhancement compensation stands dismissed. Stimulatingly, appeal No. 247/2007 against the order dated 30.09.2005 passed in Execution Application No. 184/2004 titled as œ HUDA vs. Annu Enterprises? having arisen out of the main order dated 04.05.2004 is accepted and the order dated 30.09.2005 is set aside.
22. I do not find any reason to disagree with the above detailed and elaborate findings of the State Commission holding that complaint is barred by limitation.
23. Even on merits, petitioner has no case as possession of plot in question was delivered to him on 28.6.1996, whereas, complaint before the District Forum was filed on 29.3.2011, i.e., much beyond the period of limitation. Further more, as per State Commissions order, high tension wires have already been removed by the opposite parties, that is, respondents, during the pendency of the complaint.
24. Present revision petition is without any legal basis and same has been filed just to waste the valuable time of this Commission. Accordingly, the same is hereby dismissed with costs of Rs.10,000/- (Rupees Ten Thousand only).
25. Petitioner is directed to deposit the costs of Rs.10,000/- (Rupees Ten Thousand Only) by way of a cross cheque in the name of œConsumer Legal Aid Account? within four weeks from today.
26. In case, costs are not deposited within the prescribed period, then petitioner shall be liable to pay interest @ 9% p.a., till realization.
27. List on 30th March, 2012, for compliance.