Date of Hearing the 9th Day of November, 2015
Date of Judgment Friday, the 20th Day of November, 2015
JUDGMENT
The instant Revisional Application under Section 17(1)(b) of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) is at the behest of the Opposite Party No.1 to 5 to impeach Order No.07 dated 07.08.2014 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (For short, Ld. District Forum) in Consumer Complaint No.106 of 2014.
The Opposite Party No.1 herein Sri Sanjay Chakraborty being intending Purchaser initiated the Complaint Case under Section 12 of the Act against Revisionist (Developers) and Land Owners on the allegation that on 15.02.2008 he entered into an Agreement for sale with the Opposite Parties i.e. Developers and Land Owners to purchase of a shop room on the ground floor of premises No.5, Shaheed Sunil Sen Sarani, P.S. Dum Dum, Kolkata 700028, District North 24 Parganas at a consideration amount of Rs.1,05,000/-. The Complainant had paid Rs.77,000/- as part consideration amount. It has been stated by the Complainant that the possession of the shop room has been handed over to him but no Completion Certificate has been handed over to him and further, the Opposite Parties are threatening not to execute any Deed of Conveyance. Accordingly, the Opposite Party No.1 herein being Complainant has prayed for certain relief including a direction upon the Opposite Parties to execute and register the Deed of Conveyance in favour of him.
The Opposite Party Nos.1 to 5 i.e. Revisionists herein by filing an application challenged the maintainability of the proceeding on two grounds - (a) the case is hopelessly time barred and (b) the shop room intended to purchase by the Complainant for commercial purpose which will be excluded from the purview of the Act.
Upon hearing the Ld. Advocates appearing for the respective Parties and on going through the materials on record Ld. District Forum disposed of the Application with an observation that the maintainability point cannot be adjudicated without examining evidence of the Parties and in this regard Opposite Parties have given liberty to re-agitate the issue time to time of final hearing of the case, which prompted the Opposite Party Nos.1 to 5 to prefer the instant Revisional Application.
Now, the point arises for consideration as to whether the Ld. District Forum has acted in exercise of its jurisdiction illegally or with material irregularity.
We have considered the submissions advanced by the Ld. Advocates appearing for the Parties.
The Opposite Party Nos.1 to 5 by filing an application challenged the maintainability on the basic two points, including point of limitation as envisaged under Section 24A of the Act. Therefore, a duty cast upon the Consumer Forum to decide the maintainability point as admission of Consumer Complaint has to be considered from the object of legislature as contained in the provisions of Section 24A of the Act. In a decision reported in (1999) 6 SCC 632 (T.K. Lathika v. Karsamdas Jamnadas) the Hon’ble Supreme Court of India has observed that until and unless the maintainability point is decided first, there is hardly any scope to enter into the merit of the case.
In paragraph 13 of the Petition of Complaint the Complainant has spelt out that the cause of action has firstly been arisen on 01.12.2008 when the Opposite Parties delivered the physical possession of the shop to the Complainant and lastly on 29.11.2013 when the Complainant requested the Opposite Parties to execute the Deed of Conveyance and to complete the registration work of the shop of the Complainant by way of issuing legal notice. The instant Complaint has been filed on 06.03.2014. The Opposite Parties/Revisionist, however, has clearly denied the factum of handing over the possession.
Be that as it may, the Complainant has failed to complete the transaction within three years from the date of Agreement and he has paid last payment on 11.11.2008. It further comes to surface that on 29.11.2013 the Complainant issued a legal notice upon the Opposite Parties with a request to execute and register the Deed of Conveyance after accepting the balance consideration amount. However, the Opposite Parties refused to accept the said legal notice.
In that perspective, in order to ascertain the actual proposition of law it would be profitable to refer the decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi reported in 2014 (4) CPR 255 (NC) (The Assistant General Manager, Reserve Bank of India v. Karumu Subba Reddy).
Paragraph 18 of the said Judgment is reproduced below, - ‘It is well settled that by serving the legal notice or by making representation, the period of limitation cannot be extended by the respondent. In this context, reference can be made to Kandimalla Raghavaiah & Co. (supra), in which it has been held:
‘By no stretch of imagination, it can be said that Insurance Company’s reply dated 21st March, 1996 to the legal notice dated 4th January, 1996, declining to issue the forms for preferring a claim after a lapse of more than four years of the date of fire, resulted in extending the period of limitation for the purpose of Section 24A of the Act. We have no hesitation in holding that the complaint filed on 24th October, 1997 and that too without an application for condonation of delay was manifestly barred by limitation and the Commission was justified in dismissing it on that short ground.’
Therefore, by serving legal notice or by making representations the period of limitation cannot be extended. The situation would have been otherwise, had there been any reply against such legal notice dated 29.11.2013. In that event the cause of action would have been considered as continuous one but when the Opposite Parties refused to accept the notice certainly the cause of action cannot be considered from the date of issuance of legal notice on 29.11.2013. In such a situation even if we assume alleged date of possession on 01.12.2008 or alleged date of last payment i.e. 11.11.2008 is the date of cause of action, the Consumer Complaint having been filed on 06.03.2014, the Complainant was under obligation to file an application under Section 24A of Act for condonation of delay. The language of Section 24A(1) of the Act emphasis the words of ‘shall not admit the Complaint’ indicate legislative mandate to the Consumer Court to examine on its own whether the Complaint has been filed within the prescribed period of limitation and if it is not filed within 2 years from the date of accrual of cause of action sufficient cause has to be shown for condonation of such delay. Admittedly, the Complainant did not take any pain to file an application under Section 24A(2) of the Act for condonation of delay. Therefore, we have no doubt to hold that that the instant Consumer Complaint is hopelessly barred by limitation.
The next question arises as to whether the shop room was intended to purchase for commercial purpose. In paragraph 4 of the Petition of Complaint the Complainant has averred, - ‘ with the objective in the year 2008 was desirous to purchase one shop for commercial purpose for his own as well as for his family members’. The materials on record indicate that the Complainant had earlier purchased one another shop in said premises for the purpose of carrying the business of medicine shop. The Complainant did not mention in his application that he intended to purchase the shop in question for the purpose of earning his livelihood by means of self-employment. Needless to mention, if the goods purchased for commercial purpose then such Consumer would be excluded from coverage of the Act.
There cannot be any doubt that the Complainant intended to purchase the shop for the purpose of business with an intention to generate profit which is the main aim of commercial purpose. Therefore, without hesitation it can also be said that the Complainant intended to purchase the shop for commercial purpose and as such, it would be excluded from the jurisdiction of a Consumer Court.
Ld. District Forum did not assign any reason whatsoever why they admit the Consumer Complaint after lapse of two years without any application under Section 24A(2) of the Act and further, why in accordance with the averment made by the Complainant in paragraph 4 of his Petition of Complaint shop room cannot be considered to be commercial purpose. Ld. District Forum passed the Order without assertaining real controversy which has been highlighted before it. Therefore, we have no hesitation to say that the Ld. District Forum has acted illegally and with material irregularity in passing the Order impugned. As a result, we are constrained to interfere with the Order impugned.
Consequently, the instant Revisional Application is allowed on contest against Opposite Party No.1 and ex-parte against the rests without any order as to costs.
The Order No.7 dated 07.08.2014 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat in Consumer Complaint No.106 of 2014 is hereby set aside.
In consequence thereof, the Petition filed on behalf of the Opposite Party Nos.1 to 5 challenging the point of maintainability is allowed on contest and disposed of. As a natural corollary, the Consumer Complaint No.106 of 2014 pending before the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat stands dismissed.
