IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Thursday the 30th day of July, 2020
Filed on 4.08.2017
Present
1. Sri.S.Santhosh Kumar.BSc. LLB(President)
2. Smt. C.K.Lekhamma.BA.LLB(Member)
In
CC/No.207/2017
Between
Complainants:- Opposite party:-
1. Sri. Anil.S. Kurup Bineesh Kumar
S/o Ramakrishna Kurup S/o Thyagarajan
Lekshmipuram Veedu Sarasamma Vliasam
Pallarimangalam Kallumala, Umbarnadu
Mullikkurlangara Muri Mavelikara
Thekkekara Village (Adv.Reji.V.George)
Mavelikkara Taluk
Alappuzha.
2. Smt. Dhanya Lekshmi
W/o Anil.S Kurup
Lekshmipuram Veedu
Pallarimangalam
Mullikulangara, Thekkekara
Mavelikkara, Alappuzha.
(Adv.N.Ruby Raj)
O R D E R
SMT. C.K.LEKHAMMA (MEMBER)
Complainants unfold the following facts regarding the complaint:-
1. The complainants are NRI’s and the opposite party is the building contractor. In the year 2010 complainants entered in to a contract with the opposite party, for the construction of their residential building. As per the agreement, the opposite party has undertaken the construction at the rate of Rs.1400/- per sqft and has further agreed to complete the construction within one year. On the contrary the construction was finished by opposite party in the year 2012 only. After house warming complainants went back to their place of employment at gulf. Thereafter they returned from the foreign country, noticed the leakage in different parts of the house. It is leakage of roof, dampness and damages in the wall, damages in the wooden doors and has seen the termite attack on the wooden window. It was informed by the complainants to the opposite party. But he did not turn up to rectify the same. According to the complainants the damages were caused due to the use of sub standard materials for construction and inexperienced labours for work. Due to the negligence and deficiency in service by opposite party mental agony as well as loss of money has been affected to the complainant. Hence this complainants demanding compensation and litigation cost from the opposite party. According to the complainants the cause of action had arisen on 18/6/2017, when they noticed the alleged defects and thereafter, on 5/7/2017 sent advocate notice to that effect.
2. The contention of the opposite party is that the construction of the building is under the supervision of the 2nd complainant, who is a Civil Engineer by profession. Opposite party has countable experience and had constructed a number of buildings. The actual fact is that after the house warming the building was kept closed for a long period since the complainants left to gulf. During said period there was no cleaning and proper maintenance of the building that might be the cause of damage. The opposite party did not use any low quality materials for construction. The contractual obligation existed only up to the completion of work. Further the building was constructed in a reclaimed water logged area. The opposite party is not liable for any damages caused since the building was constructed a long period back. The counsel for opposite party raises the plea of limitation at the time of argument. Since during the cross examination PW1 deposed that she had knowledge about the alleged damages in 2012 itself. Therefore prays that the complaint is barred by limitation. The prayer in the complaint is totally misconceived since there is no cause of action; hence the complaint is liable to be disallowed.
3. The complainant and opposite party appeared through counsel. The 2nd complainant has been examined as PW1, Ext.A1 to A8 were marked on their side. Opposite party has been examined as RW1 and documents Ext.B1 to B4 were marked. Commissioner was examined as CW1 and Report marked as Ext.C1 series and Ext.X1 series also marked.
4. The points that arose for determination are as follows:-
1. Whether the complaint is barred by limitation?
2. Whether the opposite party has committed any deficiency
in service with regard to the construction of the building?
3. Whether complainant is entitled to get compensation and costs of the proceedings?
5. Point No.1
The case of the complainant is that the opposite party constructed his residential building in the year 2012 by using substandard materials causing damage to the building. The same was noticed by them only on 18/6/2017, since they were abroad for long period. The opposite party resisted all such contention that the construction work was done by opposite party under the supervision of complainant, who is a Civil Engineer by profession. Moreover the alleged damages are due to the want of proper maintenance since the building was kept locked for a long period. According to the opposite party even though the contention of limitation is not raised in version, but the complaint is barred by limitation as per the testimony of PW1, the 2nd complainant. The same is mentioned in his additional argument note
Ext.A1 is the agreement dated.28/8/2010 between the complainants and opposite party. Ext.A2 is the copy of Legal Notice dated 1/7/2017, Ext.A3 is the Postal receipt and Ext.A4 is the Acknowledgment card respectively , Ext.A5 is the copy of Reply Notice dated 12/7/2017, Ext.A6 is a Sale deed infavour of the complainants, Ext.A7 is the Owner ship certificate and Ext.A8 is the Tax receipt. CW1 is the commissioner and report marked as Ext.C1 series and Ext.X1 series also marked. Ext.B1 is the copy of Reply notice; Ext.B2 and Ext.B3 are the Postal receipt and Acknowledgment of the same. Dispute is with regard to the execution of the construction work. Before deciding the said aspect we have to consider the claim of limitation raised by the learned counsel for opposite party during the time of argument. There is no contention with regard to limitation in version but it is mentioned in opposite party’s Additional argument notes in accordance of the testimony of PW1, the 2nd complainant.
The question of limitation of time is crucial in this case because; only if it is found that the complaint is not vitiated by law of limitation, we need to proceed further to determine whether there is deficiency in service committed by the opposite party.
According to the complainant the opposite party handed over the building only in the year of 2012, but not mention the exact point of time. On the contrary opposite party contented that he transferred it in the year of 2011 itself. Any way both of them were not proved. According to the PW1, 2nd complainant they noticed the defect after the house warming. She deposed that house warming was “2012taS amk¯n Bbncp¶p.” Not point out exact date. Even if, it is assumed that, only for fixing the point of limitation, the house warming may be last week of April 2012. Therefore, the time for filing the complaint commenced to run from that date and accordingly the complaint ought to have been filed on or before April 2014. Here the complainant could file the complaint only on 15/7/2017, after the elapse of nearly 3 years from the dead line stipulated with regard to limitation in the Consumer Protection Act. 1986.
Sec.24 –A(1) deals with limitation period for the purpose of filing complaint before Consumer Fora. The said provision is extracted below:
“ 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” Obviously the complaint cannot find its way in to the Forum because it is blocked by limitation of time.
But the complainants have sought shelter under sub section 24 A(2) of said provision which provides an opportunity to the complainants, who happened to be late, to convince the Forum that there was justifiable reason for the delay. The learned counsel for opposite party has relied on the decision of the Hon’ble Supreme Court in support of their contention with regard to limitation in The State Bank of India Vs. B.S Agricultural Industries (I) [2009(5) Sec 121] the Hon’ble Apex Court referring to Sec.24 A has held “ 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 24 A 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 there under.” Unfortunately nothing was done by the complainant herein. Prima facie it is barred by limitation on account of considering the date of complaint and date of Ext.A2 notice. Now it is pertinent to note the oral testimony of PW1, the second complainant is that they have noticed some defects in the year 2012 onwards, that is after the house warming. What she deposed is that “]mev Im¨Â Ignªt¸mÄ Xs¶ sI«nS¯n\v defects Incp¶p.” She further deposes that “ apIfn \n¶pff tNmÀ¨ HgnsI _m¡nsbÃm defects Dw ]mepIm¨n\pw ]n¶oSv h¶t¸mgpw Incp¶p.” She also deposes that “ Bdpamkw Ignªv hntZi¯p \n¶v h¶t¸mgmWv \n§Ä Sn hoSn\v defects IXv. (F) AÃ. 2017  BWv tNmÀ¨ IXv.” It seems that the second complainant having admitted that they had been noticed the defect in the year 2012 itself, the same should have been taken in to consideration for the purpose of determining the issue of limitation even without pleading. In Gannmani Anasuya and others Vs. Parvatini Amarendra Chowdhary and others,(2007) 10 SCC 296, Hon’ble Supreme Court highlighted with reference to section 3 of the Limitation Act that it is for the court to determine the question as to whether the suit is barred by limitation or not irrespective of the fact that as to whether such a plea has been raised by the parties; such a jurisdictional fact need not be even pleaded.” Secondly, there is no continuing cause of action. If it is a continuing cause of action there should have been at least a scrap of paper or notice, intimating the opposite party that the building is damaged. In order to support the continuing cause of action she deposed that she had intimated the contractor telephonically and orally. First of all it is only on the interested version of the complainant. Secondly there is no evidence to support even such deposition of the complainant. Therefore, the notice issued in 2017 by the complainant can only be considered as a ruse to defend the question of limitation. But the truth is that complaint is hopelessly barred by limitation.
6. Points No. 2 and 3:-
In view of our finding in Point No.1 we need not open the issues underlying points 2 & 3 for examination.
In the result, the complaint stands dismissed. No cost
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 30 th day of July, 2020.
Sd/- Smt. C.K. Lekhamma (Member)
Sd/-Sri. S.Santhosh Kumar (President)
Appendix:-Evidence of the complainant:-
PW1 - Dhanya Lekshmi(Witness)
Ext.A1 - Agreement dtd.28/9/2010
Ext.A2 - Copy of Legal Notice dtd. 1/7/2017
Ext.A3 - Postal Receipt.
Ext.A4 - Acknowledgment Card
Ext.A5 - Copy of Reply Notice dtd. 12/7/2017
Ext.A6 - Sale Deed
Ext.A7 - Owner ship Certificate
Ext.A8 - Tax Receipt
Evidence of the opposite parties:-
RW1 - Vineesh Kumar(Witness)
CW1 - Lekshmi.S Chandran(Witness)
Ext.B1 - Copy of Reply Notice
Ext.B2 - Postal Receipt
Ext.B3 - Acknowledgment card.
Ext.C1 series - Commission report
Ext.X1 series - Tax receipts
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
