This is a discussion on Pioneer Builders within the Judgments forums, part of the General Discussions category; CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI First Appeal no.1331/2008 Date of Filing: 10/10/2008 @M.A.No.1874/2008 Consumer Complaint No.132/2007 District Consumer ...
- 09-02-2009, 04:56 PM #1
CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA STATE, MUMBAI
First Appeal no.1331/2008 Date of Filing: 10/10/2008
Consumer Complaint No.132/2007
District Consumer Forum: Raigad Date of Order: 19/03/2009
Shri M.S.K.Mapara, Appellant
Proprietor- M/s. Pioneer Builders, (Org.Opp.Party
Office at Gatema Manzil, Plot No. 37 A,
Sector-5, New Panvel (E),
1. Shri Maqbool Alam Ansari, Respondents
2. Smt. Shahidunnissa Ansari, (Org.Complainant)
R/at- Kanjur Marg, Mumbai and
Pioneer Arcade, Plot No.37, Secor-5,
New Panvel (E),
Corum : Justice Mr.B.B.Vagyani, Hon'ble President
Mr.S.R.Khanzode, Hon’ble Judicial Member.
Smt.S.P.Lale, Hon’ble Member
Present: Adv.Shri D.M.Thakkar I/by Adv.Shri Kalpesh Parekh for appellant.
Adv.Shri U.B.Wavikar I/by Adv.Shri M.S.Naik for respondent.
:- ORDER :-
Per Justice Mr.B.B.Vagyani, Hon’ble President:
We heard Adv.Shri D.M.Thakkar I/by Adv.Shri Kalpesh Parekh for appellant and Adv.Shri U.B.Wavikar I/by Adv.Shri M.S.Naik for respondent.
There is delay of 32 days in filing the appeal. Therefore, application for condonation of delay is filed. Delay is of few days. Delay is not deliberate or intentional. The relative of the appellant, who is a senior citizen, was ill and therefore, appeal could not be filed in time. We are therefore, inclined to condone the delay. Delay is condonded. Misc.Application No. 1874/2008 stands allowed.
The respondents are flat purchasers. The appellant is a builder. The builder agreed to sale a flat admeasuring to 701 sq.ft. for consideration of Rs.6,30,900/- to the respondents. Registered agreement was executed on 26/05/2004. The purchasers paid entire consideration to the builder. The builder obtained occupation certificate and delivered possession of the flat to the respondents on 31/08/2004. The respondents noticed defects in construction. The respondent also noticed that area of the flat was less. The flat purchasers served the notice (dated 26/07/2007) on the builder. The builder sent reply notice dated 22/08/2007 and denied the allegations made against him. The flat purchasers thereafter filed consumer complaint in District Forum on 31/10/2007. Said complaint was resisted by the builder. The builder specifically raised point of limitation in para 5 of the written statement. The District Forum relying on the report of Court Commissioner came to the conclusion that the area of the flat admeasures to 595 sq.ft. District Forum therefore directed the builder to pay Rs. 3,18,000/- to the flat purchasers for less area admeasuring 106 sq.ft. the District Forum directed the flat purchasers to pay Rs.25,000/- to the builder for formation of Co-operative Society. District Forum awarded Rs.5,000/- to the flat purchases for mental harassment and Rs.2,000/- by way of costs. The builder challenged the correctness of this order.
We carefully perused the entire material placed on record. It is clearly seen from the record that possession of the flat was delivered to the flat purchasers on 31/08/2004. The consumer complaint is admittedly filed on 31/10/2007. As per Section 24 (A) of Consumer Protection Act, 1986, consumer complaint is required to be filed within two years from the date on which cause of action has arisen. Consumer complaint can be entertained even after the period specified in Section 24(A) sub-Section(2) if the complainant satisfies the Forum that he had sufficient cause for filing consumer complaint within such period. In the case in hand the complainants did not file application for condonation for delay. In the absence of prayer for condonation of delay, the delay in filing the consumer complaint cannot be condoned suo-moto. The point of limitation is raised in the written statement. District Forum however ignored the vital point of limitation and allowed the consumer complaint.
The District Forum also ignored the terms and conditions of the contract. Besides consideration of Rs.6,03,900/- the flat purchasers were required to pay the following charges:
“i) MSEB Deposits and Cable laying charges.
ii) Water Connection Deposits and meter charges.
ii) CIDCO service charges, maintenance charges including deposits.
iv) Development charges.
v) All charges towards Society formation and registration charges, etc.
vi) Stamp duty, registration charges and other miscellaneous charges on the lease deed to be executed in the name of Society/association.
vii) Other levies/charges/taxes, if any.
viii) Taxes and charges levied by Corporation/NMMC.
ix) Property charges and taxes already paid by the Builder”.
The flat purchasers have only paid Rs.40,000/- as development charges. There is nothing on record to show hat flat purchasers paid charges specified in I, II, III and V to IX. The District Forum did not consider this issue in proper prospective. The District Forum cannot substitute its view for written terms and conditions.
The flat purchasers brought the time barred stale claim before the District Forum. District Forum conveniently ignored serious challenge to the maintainability of the consumer complaint on the ground of limitation. The consumer complaint is hopelessly time barred. The complainants did not place on record application for condonation of delay. The point of limitation goes to the root of the matter. The District Forum should not have entertained the time barred stale claim in absence of prayer for condonation of delay. In the result, we pass the following order:-
1. Appeal is allowed.
2. Impugned order under challenge is quashed and set aside.
3. No order as to costs.
4. Copies of the order herein be furnished to the parties.
(S.P.Lale) (S.R.Khanzode) (B.B.Vagyani)
Member Judicial Member President