Date of Filing:29.09.2022

Date of Disposal:16.03.2023

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

ORDER

Smt.Nandini.H.Kumbhar,

Member

1. The complainant is filed by the complainant under section 35 of C.P.Act, 2019 against the OPs alleging deficiency in service.

2.   Brief facts is as follows: 

The complainant submits that the complainant is a member in the OP-1 society since 1987 by paying described fee as per law and OP-1 had issued a provisional letter as allotment of site measuring 1200 Sq.ft,in thisregard the complainant had paid a sum of Rs.20,000/- as per OP-1 demand and there was demand of per further of Rs.6,000/- for allotment of above mentioned property and OP -1 issued a letter stating that the government have entrusted to allot sites to the members of the societies. After the executing the affidavit, the society was satisfied in regard with compliance the complainant paid amount of Rs.10,000/- as demanded by OP-1 with regard to allotment of site. The complainant submits that after paying an amount of Rs.30,000/- to the OP-1 and repeatedly touch with OP-1 & 2 for allotment process as site no.3788. However, no interest was shown to allot the site in favour of the complainant when the complainant approached the OP in the year 2007 & 2009. The OPs were postponing to allot the site in favour of the complainant and postponing the issue one or the other reasons.

3. The complainant further submits that the complainant approached the OPs in 2014, she learnt that there was a huge problem between the OPs and land owners and the case was pending in Supreme Court and no final decision has been disposed. In this regard , when the complainant enquired the same with other members of the OPs society. She was informed that the OPs case was pending in the Apex court as on this day and when the complainant approached OPs in 2019 and there was no communication was made to the complainant’s address stating that the society’s location has been shifted to a new premises. When the complainant approached OPs in the year 2020 to 2021 due to drastic situation of Covid-19 even the complainant affected to such pandemic disease and enquired to allot the site or revert the money paid with interest at 24% p.a., but no settlement has been made in this regard. The complainant issued legal notice to OPs on 13.05.2022, after  receipt of the legal notice the OPs not considered any request. Aggrieved by the act of the OPs, the complainant preferred to file the present complaint seeking relief as prayed in the complaint.

4. Notice to the OPs duly served, OP-1 to 3 remained absent and were placed exparte.

5.  The complainant has filed chief-examination affidavit by reiterating the complaint allegations and also filed documents in support of his plea.  

6. Heard arguments and matter is reserved for orders.

7.   The points that arise for our consideration are;

1. Whether the Complainant prove that there is deficiency of service on the part of the OPs as alleged in the complaint and thereby prove that he is entitle for the relief sought?

2. What order?

8. The findings on the above points are as under:

Point No.1               :       Negative

Point No.2               :       As per final order

REASONS

9. POINT NO.1:- The complainant submits that the complainant is a member in the OP-1 society since 1987 by paying described fee as per law and OP-1 had issued a provisional letter as allotment of site measuring 1200 Sq.ft, in this  regard the complainant had paid a sum of Rs.20,000/- as per OP-1 demand and there was demand of per further of Rs.6,000/- for allotment of above mentioned property. And as the executing the affidavit, the society was satisfied in regard with compliance the complainant paid amount of Rs.10,000/- as demanded by OP-1. The complainant submits that after paying an amount of Rs.30,000/- to the OP-1 and repeatedly touch with OP-1 & 2 for allotment process as site no.3788. However, no interest was shown to allot the site in favour of the complainant when the complainant approached the OP in the year 2007 & 2009. The OPs were postponing to allot the site in favour of the complainant.

10. The complainant further submits that the complainant approached the OPs in 2014, she learnt that there was a huge problem between the OPs and land owners and the case was pending in Supreme Court and no final decision has been disposed. In this regard, she was informed that the OPs case was pending in the Apex court as on this day and when the complainant approached OPs in 2019 and there was no communication was made to the complainant’s address stating that the society’s location has been shifted to a new premises. When the complainant approached OPs in the year 2020 to 2021 due to drastic situation of Covid-19 even the complainant affected to such pandemic disease and enquired to allot the site or revert the money paid with interest at 24% p.a., but no settlement has been made in this regard. The complainant issued legal notice to OPs on 13.05.2022. But the OPs not considered any request. Aggrieved by the act of the OPs, the complainant preferred to file the present complaint seeking relief as prayed in the complaint.

11. Despite service of notice, OP remained absent and has been placed exparte.

12.  The complainant filed chief examination affidavit along with documents in support of his contentions and documents produced. The commission observed that, the complainant has produced provisional letter of allotment of site dt.18.11.1987 with condition as payment of Rs.30,000/- paid by the complainant on 27.12.1993. But as the full payment received by the OPs, the OPs society has not allot the site in the name of the complainant. From the perusal of the complaint averments and allegations as against OPs, the commission opined that the complainant is a member in the OPs society since 1987 as a member in the society,  OP-1 had issued a provisional letter as allotment of site measuring 1200 Sq.ft. dt.18.11.1987 and as per agreement of the letter the complainant had paid a sum of Rs.30,000/- on 27.12.1993, as per the entire complaint averments has raised the issue of allotment site in the name of complainant in the year 2022. In our opinion, the present complaint is filed by the complainant after lapse of limitation period of two years. The facts of the complaint reveals that the cause of action to file the complaint should have been as the date as provisional letter of allotment of site i.e.1987. If we consider the date of payment made by the complainant the complainant should have to maintain the complaint well within 02 years from the issuance of provisional letter for allotment of site. It is to be noticed that the complaint is filed in the year 2022 an inordinate delay and there has been no explanation for the delay. It is evident that the provisional letter was issued in the year 1987 and as per the issuance of said letter the complainant has not made any attempt to release the site from the OPs even after the payment  made in the year 1993, but the complainant had filed this complaint in the year 2022, by alleging deficiency is pertaining to the year 1987. When such being the case the cause of action arose in the year 1987. Even if we consider the year of payment1993 but the complaint is lodged after lapse of limitation period of more than 25 years which is highly barred by limitation and an inordinate delayed complaint cannot be maintained and there is no scope to consider time barred complaint. And in the absence of any reasonable cause for delay as the present complaint is filed beyond the limitation period of two years it is liable to be dismissed. Under section 69 of Consumer Protection Act, 2019, clearly states that

“Sec.69: Limitation Period: (1) The District Commission, 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) Not withstanding anything considered is in sec.(1), a compliant may be entertained after the period of specified in sub-section(1), if the complaint satisfies the District Commission, State Commission, the National commission as the case may be, that he had sufficient cause for not filing the complaint within such period.

(3) Provided that no such complaint shall be entertained unless the District Commission or State Commission or National Commission as the case may be recorded its reasons for condone such delay.

13.  The present complaint is hit by section 69 of C.P.Act 2019 after failure to attempt to put law into motion with delay of more than 25 years from the date of allotment letter. The commission ought to be considered and citation filed by the complainant is not applicable to the present complaint, because there is no explanation nor filed any application for condonation of delay.

14. On view of the above the commission also observed that, the complainant have pleaded in her complaint at para-17 that a case was pending before the Hon’ble Supreme Court and no final order is passed and other members of the society was also informed the complainant that as the case was pending before the Apex court as on that day. And the complainant knows the case is pending before the Hon’ble Apex court and it is also pertinent to note that this complaint is filed against the same OPs subsequent to the filing of the above pending case, when the present complaint is filed and the said writ petition is already filed and pending before the Hon’ble Supreme Court. When such being the case, the commission observed that when the filing pendency of the case before the Hon’ble Supreme court is well within the  knowledge of the complainant and has made and admitted in his own pleadings.

15.    In view of the above, the commission is of the opinion that the complainant has not approached this commission with clean hands and she has not put forth the real and true facts of the parties  when the dispute pertaining to the above properties pending before the Supreme Court of India. When the complainant know about OPs society case was pending in the Apex court, the question of entertaining the present complaint does not arise. And the present complaint against the same OPs and seeking relief against same OPs is nothing but abusing process of law. When such being the case the present complaint deserves to be dismissed as not maintainable. Accordingly, the Point No.1 we answer Partly in Negative.

16. POINT NO.2:-  In view of the above, we are of the opinion that the complaint filed by the complainant has no right to proceed with complaint. On the above observation the present complaint deserves to be dismissed for the  above reasons. In the result, we passed the following:

                             ORDER

1. The complaint filed by the Complainant U/s.35 of the Consumer Protection Act, 2019 is dismissed. No costs.

2. Furnish free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 16^th March 2023)

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)             (CHANDRASHEKAR S.NOOLA)       

         MEMBER                                        MEMBER

Witness examined on behalf of the complainant by way of affidavit:

Smt.Susheela Murthy -who being the complainant

Documents produced by the complainant:

Witness examined on behalf of the OP-1,2 & 3 by way of affidavit: Nil

Documents produced by the OP- 1,2 & 3:Nil

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)

         MEMBER                                     MEMBER

SKA*