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CASE NO.: Appeal (civil)  6572 of 2005

PETITIONER: Haryana Urban Development Authority      

RESPONDENT: B.K. Sood                                                

DATE OF JUDGMENT: 26/10/2005

BENCH: Ruma Pal & Dr. AR Lakshmanan

JUDGMENT: J U D G M E N T (Arising out of SLP(C) No. 9076 of 2004)

RUMA PAL, J

       Leave granted. In this appeal an order passed by the National Consumer  Disputes Redressal Commission (hereinafter referred to as the  "National Commission") is challenged to the extent that the  National Commission had awarded two lacs compensation  which was to be paid by the appellant to the respondent.   The appellant held an auction of booth sites plots/building  at No.90, Sector 9 at Panchkula on free hold basis in 1986.   The respondent bid for one booth/ site plot which was accepted  by the appellant.  An allotment letter was issued on 12th  January, 1987 to the respondent in which it was mentioned that  the allotted area of the booth/ site was 45.37 sq. meters  including the side verandah at a price of Rs.2,53,000/- which  could be paid in instalments.  After adjusting the earnest money  deposited, the respondent was required to pay the balance of  25% of the price of the plot within 30 days upon which the  possession of the booth site would be given. The balance  amount of the purchase price of Rs.1,89,750.00 was payable in  ten half yearly instalments, the first of which was payable after  the expiry of six months. In terms of the allotment letter the last  instalment was payable on 12th December, 1991. The allotment  letter also mentioned that each instalment would be  recoverable together with interest on the balance price at 10%  interest on the remaining amount which would start to accrue  from the date of offer of possession of the said booth.           The respondent admittedly did not pay all the instalments.  The total amount paid was Rs.1,45,790/-,  leaving outstanding  a sum of Rs.2,03,580/- inclusive of interest calculated upto     12th November, 1991.  The appellant issued several notices of  demand to the respondent.  According to the appellant,  pursuant to one of the notices, the respondent had appeared on  18th December, 1991 and promised to pay the outstanding dues  by 31st December, 1992.  However,  no payment was made.   Ultimately the appellant issued a notice on 31st May, 1996 to  the respondent demanding payment.         On 6th April, 1997 the respondent filed a complaint before  the State Consumer Redressal Commission (hereinafter  referred to as the "State Commission")  in which the respondent  claimed an order directing the setting aside of the notice of  demand dated 31st May, 1996.  They also asked for removal of  the "deficiencies" in the booth and for compensation on account  of damage to the extent of Rs.10 lacs for the appellant’s alleged  gross failure in discharging their legal duties which had

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allegedly "caused extensive losses in terms of business, health,  mental peace, family up-bringing, education of children etc." of  the respondent and for an amount on account of "extreme  deficiency of service" on the appellant’s part.           The deficiencies alleged in the  complaint were as follows: a)      the booth of which possession was given by the  appellant measured only 2.75 x 8.25 sq. mts. as  against the advertised area of 5.5 x 8.25 sq. mts.

b)      unauthorized bhatties had been kept in the  verandah of the neighbouring shop which had  seriously affected the health and business of the  respondent.   c)      The appellant had unauthorisedly sanctioned a  STD/PCO in front of the respondent’s booth due to  which the respondent had lost the advantage of  having purchased a corner booth. The appellant filed an affidavit before the State  Commission countering the submissions in the respondent’s  complaint and stating that the complaint was barred by time.   On the merits it was said that the respondent had been given  possession of 5.5 sq.mts. x 8.25 sq.mts. after which the  respondent had constructed the booth at the corner site.  As far  as the bhatties were concerned, it was stated that they had  already been removed. In connection with the allegations  regarding the  sanction  of STD/PCO booth, it was stated that  the same had been constructed far away from the booth of the  respondent.   It was submitted that there was no deficiency in  the services and the respondent had not suffered any damage  at all.  On the contrary, the respondent had defaulted in making  the payment of the instalments of the purchase price and the  appellant was entitled to recover the same together with  interest at 18% p.a.         The State Commission accepted the claim of the  respondent and directed the appellant: "i)  to remove the Bhatties belonging to the  neighbouring shop-keepers at present lying in  front of site of the booth of the complainant;

ii)      include the side verandah within the total  area allotted to the complainant for the booth  site; iii)    to refund to the complainant the proportionate  price of the area covered by the verandah by  the HUDA authorities;

iv)     to submit (sic) the complainant exclusive use  of the verandah for the complainants use;

v)      to remove the STD/PCO booth from the site of  the complainants booth;

vi)     to pay a sum of Rs.2,00,000/- by way of  compensation for the monetary loss and the  mental agony, harassment suffered by him on  accept of deficiency in service on the part of  HUDA;

vii)    to revise the accounts by adjusting the  payments made by the complainants so far  and re-schedule the instalments, if any still  found payable by them; and

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viii)   not to raise any demand for further payment  till the compliance of the aforesaid direction is  made".

        On the appeal of the appellant, the National Commission  negatived  directions (ii), (iii), (iv), (v), (vii) and (viii) of the State  Commission.  It was found that there was no deficiency in the  service rendered by the appellant as far as the area allotted  and the construction of the STD/PCO were concerned.  It was  found that the side verandah had been included in the total  area sold to the respondent and that the PCO booth had been  constructed 21 feet away from the booth of the respondent.  It  was held that the respondent was liable to pay the outstanding  instalments of the price to the appellant together with interest  as per the HUDA policy @ 14% p.a.   However, it noted that the  bhatties had been removed during the pendency of the appeal  before the National Commission and to that extent it confirmed  the State Commission’s finding that there was deficiency on the  part of the appellant.  As such it directed the payment of Rs.2  lacs  as compensation to the  respondent for "causing agony  and hardship and health hazard to the complainant as also their  failure to keep the passage clear which they were obliged to  do". The appellant was directed to rework  the amount payable  by the respondent and communicate  the same to the  respondent which was directed to pay the same within a time  frame  to the appellant after adjusting the Rs. 2 lacs awarded  as compensation.  Both the appellant and the respondent filed two separate  special leave petitions from the order of the National  Commission.  The special leave petition filed by the respondent  was dismissed.  Therefore, as far as the findings of the National  Commission against the respondent are concerned, they are  concluded against the respondent. This appeal, on the other  hand deserves to be allowed.  Section 24-A of the Consumer Protection Act, 1986  (referred to as the Act hereafter) expressly cast a duty on the  Commission admitting a complaint, to dismiss a complaint  unless the complainant satisfies the District Forum, the State  Commission or the National Commission, as the case may be,  that the complainant had  sufficient cause for not filing the  complaint within the period of two years from the date on which  the cause of action had arisen.  The Section debars  any  fora  set  up under Act,   admitting a complaint unless the complaint is filed within two  years from the date of which the cause of action has arisen.   Neither the National Commission nor  the State Commission  had considered the preliminary objections raised by the  appellant that the claim of the respondent was barred by time.  According to the complaint filed by the respondent, the cause of  action arose when, according to the respondent, possession  was received of the booth site and it was allegedly found that  an area less than the area advertised had been given.  This  happened in January, 1987.    Furthermore, the bhatties  which  were alleged to have caused loss and damage to the  respondent, as stated in the complaint, had been installed  before 1989 and removed in 1994. The complaint               before the State Commission was filed by the respondent  in  1997, ten years after the taking of possession, eight years after  the cause of alleged damage commenced and three years after  that cause ceased. There was not even any prayer by the  respondent in his complaint for condoning the delay.         Therefore, the claim of the respondent on the basis of the  allegations contained in the complaint, was clearly barred by  limitation as the two year period prescribed by Section 24A of  the Act had expired much before the complaint was admitted by

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the State Commission.  This finding is sufficient for allowing the  appeal.                 Moreover, the National Commission proceeded on the  incorrect factual basis that the bhatties had been removed  during the pendency of the appeal before it.  The finding was  contrary to the records.  As we have said, according to the  complaint itself, the offending bhatties had already been  removed in 1994 three years before the complaint was filed by  the respondent. Apart from this there was no basis for the  Commission to have awarded to Rs. 2 lacs to the respondent  by way of compensation.            In the circumstances of the case the appeal is allowed   and the decision of the National Commission in so far as it  directed the appellant to pay compensation to the respondent is  set aside. No order as to costs.