M. Ganesh Kumar and Another Vs. S.S.P. Thirukumaran

(The Appellants as the complainants filed a complaint before the District Forum against the opposite party praying for a direction to the opposite party to pay Rs.19,550/- with 18% interest, to pay Rs.1,75,000/- towards damage to the building and repairing works and to Rs.5000/- for mental agony and to pay costs. The District Forum dismissed the complaint. Against the said order, this appeal is preferred by the complainants 2 and 3 praying to set aside the order of the District forum in CC.21/2007 dated 18.02.2010.

This appeal coming before us for hearing finally on 28.11.2012. Upon hearing the arguments of the counsel for both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order.)

A.K.ANNAMALAI, PRESIDING JUDICIAL MEMBER

The unsuccessful complaints are the appellants.

2. The deceased complainant Marimuthu entered into oral agreement for the construction of house in which due to certain defects and incompletion of work within the prescribed time as agreed and receiving excess payment from the complainants aggrieved by the same, the deceased complainant filed a complaint against the opposite party claiming direction for repayment of Rs.19,500/- and to Rs.1,75,000/- for causing damage to the building and for repairing works and to pay Rs.5,000/- for mental agony and for costs. Pending enquiry since the complainant Marimuthu died, the 2^nd and 3^rd complainants / present appellants impleaded as LRS and continued the process.

3. The District Forum after having an enquiry come to the conclusion that the complaint was time barred and dismissed the complaint on that ground.

4. The impugned order is being challenged in this appeal by contended that the complainant entered into an oral agreement with the opposite party on 4.6.2003 and as per the same the work to be completed within one year on or before 23.05.2004 and having received last payment on 24.01.2004 since failure to fulfill the work, the complaint was filed after giving necessary legal notice on 14.3.2006 well within the time of two years. The District Forum by taking into consideration of the last payment dated on 24.01.2004 as the date of cause of action came to the conclusion that the complaint was filed beyond 2 years and thereby the complaint was dismissed as time barred which is erroneous and prayed for allowing the appeal.

5. The opposite party contended that there is no written or oral agreement for the construction of work by contract and only for the labour charges quoted during the construction work receipts were signed by the opposite party and the building was already completed in December 2003 and occupied by the complainant and after 2 years the complaint filed by the complainant with false allegations and thereby the order of the District Forum to be sustained.

6. We have carefully considered both sides arguments and gone through the materials placed before us as per the complainant notice was issued to the opposite party for the alleged defects and payment of excess amount under Ex.A1 in page2 in para 5 of the notice it is stated that “ The agreement date 4.6.2003 may be read as part and parcel of the notice” for which in the reply under Ex.A2 the opposite party stated in para 4 it is stated that “ My client never entered any written agreement with your client for construction and taking advantage of the same your client did not paid the balance labour charges to my client. Your notice referred an agreement and my clients signature contained papers. But no Xerox copies were adduced along with your notice. My client suspects the validity of those documents. He never issued any signed papers except receipts for payments of labor charges.” From these details it is clear that the opposite party not entered into any written agreement and the complainant also failed to produce the written agreement dated 4.2.2010 as alleged in the notice. As per his oral arguments he agreed to complete the work on or 23.5.2004 in view of oral agreement. But no supporting documents are evidenced adduced by the complainant. Whereas the opposite party contended that they had not entered any written agreement or signed papers etc except the receipt was signed for receiving labour charges under Ex.A3 for received the labour charges by the opposite party on 22.1.2004 for Rs.15,000/- and the work has to be completed on or before 23.5.2004 as alleged by the complainant to be the last date for handing over after completion of work for which no document filed and thereby and in the absence of other materials the District Forum taking into the consideration of last transaction on 22.1.2004 determined the period of limitation from that date and the opposite party contended that the constructed building was completed in December 2003 and the complainant also occupied the house and kept silence till 2006 and no reason was given for keeping silence more than 2 years.

7. In the circumstances we are of the view that the District Forum has rightly taken into consideration to determine the period of limitation from 22.1.2004 and since the complaint was filed only on 18.5.2006 without any application for taking the appeal under Section 21 (A) (2) of the Consumer Protection Act by condoning the delay. The learned counsel for the appellant relied upon the ruling in the Supreme Court of India reported in Vol-10 page 271 in the case of Registrar of Companies –vs- Rajshree Sugar and Chemicals Ltd and others” in which it is observed “ Offences and Prosecution- Offences under Companies Act-“Per Aggrieved” Meaning of-Failure to deliver share certificates in prescribed time- Registrar is person aggrieved and competent of complaint-Limitation-Date of knowledge of Registrar is point of Limitation-Companies Act, 1956.” The above ruling relates to the Companies case and Criminal procedure code which is not applicable to this case and thereby the complaint was dismissed rightly. Hence, we are of the view that this appeal deserves to be dismissed as devoid of merits. Accordingly.

In the result, the appeal is dismissed by confirming the order of the District Forum in CC.No.21/2007 dated 18.02.2010.

There is no order as to costs in this appeal.