APPEARED AT THE TIME OF ARGUMENTS

PRONOUNCED ON:  5^th   April   2018

ORDER

PER DR. B.C. GUPTA, PRESIDING MEMBER

          The revision petitions, as detailed in the heading above, have been filed under section 21(b) of the Consumer Protection Act, 1986, against the impugned orders dated 28.02.2017, passed by the Gujarat State Consumer Disputes Redressal Commission, (hereinafter referred to as “the State Commission”) in appeals filed by the complainants/petitioners against the respondent/opposite party (OP) Shakti Builders, vide which, while dismissing all the appeals, the orders passed by the District Consumer Disputes Redressal Forum, Ahmedabad in consumer complaints filed by the petitioners before them, were dismissed and the orders passed by the District Forum, dismissing all the complaints on the ground of limitation under section 24(A) of the Consumer Protection Act were upheld.

2.      Briefly stated, the facts involved in these cases as reproduced from the consumer complaint CMA No. 68/2014 filed by Dipakkumar Parshottambhai Zala (petitioner in Revision Petition No. 1395/2017) are that the complainant purchased a row-house duplex in the residential scheme floated by the OP builder, and the possession of the said house was delivered to the complainant.  The sale deed for the said property was also executed and registered in favour of the complainant.  It was alleged in the consumer complaint that several defects were found in the quality of construction made by the OP builder in the house, which were not rectified, despite bringing the defects to the notice of the OP builder.  It was also stated that the OP builder had charged service tax from them without authorisation.  Moreover, a copy of the building-use-permission had not been provided to them.  Alleging deficiency of service against the OP builder, the complainant filed the consumer complaint in question, seeking directions to the OP builder to pay him a sum of Rs. 12.5 lakhs as the amount required for repairing the defective construction, alongwith interest @ 15% per annum.  It was also stated that the amount of Rs. 60,000/- paid as service tax should also be refunded to him and a further amount of Rs. 80,000/- paid as maintenance amount should also be refunded alongwith interest @ 15%.  A compensation of Rs. 2 lakhs against mental harassment was also asked for besides Rs. 20,000/- as litigation cost.  Similar allegations were levelled in the other complaints as well.

3.      Alongwith the consumer complaints, applications for condonation of delay were also filed by the complainants.  A perusal of the same reveals that there is delay of 206 to 729 days in filing the complaints mentioned above.

4.      The consumer complaints were resisted by the OP builder by filing their written reply to the applications for condonation of delay, in which they stated that there was no justification for the condonation of huge delay in filing the said complaints and the same deserved to be dismissed on grounds of limitation as provided in section 24(A) of the Consumer Protection Act.

5.      The District Forum, after considering the averments made by the parties, rejected the applications for condonation of delay, as they did not find any sufficient reasons for condoning the same.  Being aggrieved against the orders of the District Forum, the complainants challenged the same by way of appeals before the State Commission.  However, the said appeals were also dismissed vide impugned orders and the orders passed by the District Forum were upheld.  Being aggrieved against the orders of the State Commission, the complainants are before this Commission by way of the present revision petitions.

6.      During arguments before us, the learned counsel for the petitioners/complainants stated that although the possession of the properties in question had been given by the OP builder, but there were many defects in the construction of the said houses, which were not removed, despite making requests to them from time to time.  They had filed the consumer complaints alongwith applications for condonation of delay in each case, but the consumer fora below had simply decided the applications for condonation of delay only, and had not considered the merits of each case.  The learned counsel pointed out that the complainants had contacted the OP builder several times for solution of their problems, but despite giving assurances, they had not taken any steps to cure the defects.  The delay in filing the complaints occurred only, because the complainants were under the impression that the OP builder shall remove the defects in question.  The learned counsel further stated that the building-use-permission was received by the OP builder in the year 2013, but they had not provided copies of the same to the complainants and hence, the cause of action against the OP builder had survived.  Moreover, the complainants had sent legal notices to the OP builder before filing the consumer complaints in question.  The learned counsel further stated that the OP builders was asking the complainants to pay them certain arrears of the consideration involved and keeping in view the said factor, the cause of action was still alive.  Moreover, the possession and management of the main building in question was in the hands of the OP builder only.  The learned counsel has drawn attention in support of his arguments to the order passed by the Hon’ble Supreme Court in National Insurance Co. Ltd. vs. Hindustan Safety Glass Works Ltd. and allied cases, in Civil Appeal No. 3883/2007, decided on 07.04.2017, in which it had been stated that the provisions concerning the limitation issue in the Consumer Protection Act, 1986 could not be strictly construed to the disadvantage of a  consumer in cases, where the supplier of goods or services itself was instrumental in causing delay in the settlement of consumer complaints.

7.      Per contra, the learned counsel for the OP builder  stated that there had been huge delay, ranging from 206 to 729 days involved in filing the consumer complaints listed above and no sufficient reasons had been advanced by the complainants for condonation of such delay.  The reasons given in the application for condonation of delay were not at all sufficient to take decision in favour of the complainants, as per the material placed on record.  No specific date had been given, from which the cause of action had accrued to the complainants.  The complainants had been enjoying the possession of the property in question since long.  In case of any grievance, they should have immediately come forward to lodge the complaints against the builder for rectification of defects etc.  The learned counsel has drawn attention to an order passed by the Hon’ble Supreme Court in Ruby (Chandra) Dutta vs. United India Insurance Co. Ltd., (2011) 11 SCC 269, saying that the revisional jurisdiction could be exercised only, if there was any material defect or jurisdictional error in the orders passed by the State Commission.

8.      In reply, the learned counsel for the petitioners/complainants stated that they had engaged the services of a Civil Engineer, Sarjan Construction, who had given report indicating that there were many defects in the construction made by the OP builders.

9.      We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

10.    The main issue for consideration in these revision petitions is whether there is any justification for the condonation of huge delay in filing the consumer complaints in question.  In the application for condonation of delay, para 4.1 states as follows:-

          “4.1   The present applicant contacted opponent several times for solution of problems, opponent assured that within short time problems would be solved, by giving such type of assurance opponent was passing time so the delay is caused.”

11.    In Revision Petition No. 1395/2017, it is observed from the documents filed by the petitioner/complainant himself that the possession of the property was received by the complainant on 10.11.2011.  The sale deed of the said property was also executed in his favour on 13.09.2010.  However, the legal notice issued on behalf of the complainant to the OP builder is dated 25.07.2014.  There is a report made by a Civil Engineer, Sarjan Construction about the alleged defects in the property, but the same is dated 05.12.2014.  The facts as given in Revision Petition No. 1395/2017 are all the more similar in the other consumer complaints as well.  It is clear from these facts that the complainants started proceedings against the OP builder, much after the date of obtaining possession from them.  The version given by the complainants in the applications for condonation of delay that they had contacted the OP builder several times for solution of their problems and the OP builder had assured them to remove the defects, is not substantiated from any documentary evidence on record.  The complainants have miserably failed to provide the details of any interaction including correspondence with the OP builder, which could lead to any justification on their part for the delay in filing the consumer complaints. 

12.    In the light of the discussion above, there does not seem to be any justification for taking a view contrary to the conclusion arrived at in the concurrent findings of both the consumer fora below.  Moreover, it is a settled legal proposition that interference in the exercise of the revisional jurisdiction should be made only, if there is a material defect or jurisdictional error in the orders passed by the consumer fora below.  We are in agreement on that account with the arguments led by the learned counsel for the OP builder, for relying upon the decision of the Hon’ble Supreme Court in Ruby (Chandra) Dutta vs. United India Insurance Co. Ltd. (supra).

13.    In the light of the discussion above, it is held that there is no illegality, irregularity or jurisdictional error in the orders passed by the consumer fora below.  There is no merit in these revision petitions, therefore, and the same are ordered to be dismissed and the orders passed by the consumer fora below are upheld.