Judgment:
(Sri K. 0Satyanand,Honble Member)
This is an appeal filed by the unsuccessful complainant assailing the order of the District Forum that dismissed its complaint.
The brief facts as set out in the case are as follows:
The complainant is a flat owners association calling itself M/s.Ganesh Apartments Residents Association. According to the association, it is representative of all the 18 flat owners and therefore entitled to prosecute the complaint on their behalf for the redressal of their grievances. The respondents were the builders and land owners. As a matter of fact, the flat owners were the members of the first opposite party, a Co-operative Housing Society Ltd., The complainant association stated that each of the flat owners was entitled to an undivided share of 47 sq. yds. in the open land but the opposite parties executed sale deeds in respect of the undivided shares for a lesser extent variously in each case and the maximum short fall went up to 4.5. sq. yds. This according to the complainants was violative of the terms of the agreements initially executed in favour of the individual purchasers of the flats entered into way back in 1989 and thereafter. In terms thereof, the opposite parties executed sale deeds also but for extents lesser than what was provided for in the sale agreement. Aggrieved by the said short fall, one of the flat owners moved the District Forum and successfully got a rectification deed recouping the short fall in the extent. Now the association obviously inspired by that filed the present complaint long after their sale deeds and not to speak of the agreements in their favour. In this background, the complainant association, prayed for execution of the sale deeds in favour of all the remaining flat owners in respect of the short fall of 4.5 sq. yds. reimburse a total amount of Rs.3,40,000/- as representing the hike in the registration expenditure as also compensation at the rate of Rs.25,000/- to each of the members besides a total costs in a sum of Rs.5,000/-.
This claim came to be resisted principally on the ground that it is awfully barred by limitation and other grounds presumably centering round the principle of a sale deed superseding the agreement or the agreement merging with the sale deed. It gave full details as to how the common areas and common places came to be protected for the use of the flat owners and how the stilt area was utilized for free parking as also for parking lots specifically sold without doing harm to anybodys right and within the frame work of the entire project.
In support of its case, the complainant association got filed an affidavit obviously of its secretary and relied upon documents marked as Exs.A1 to A19. On the other hand, the opposite parties 1 and 3 also got filed the affidavit of opposite party No.3 and relied upon documents marked as Exs.B1 to B15.
On a consideration of the evidence adduced by both parties, the District Forum came to the conclusion that the claim is barred by limitation and the case of the complainant lacked any evidence whatsoever to make out a case of deficiency in service.
Aggrieved by the said order, the complainant filed the present appeal contending that the District Forum was wrong in holding that the claim was barred by limitation and the District Forum failed to properly construe the provisions of A.P. Apartments (Promotion of constructions and Ownerships) Act, 1987 and other case law and it erred in giving a finding that the complaint was not maintainable by the Association as the relief sought was for the individual members and there was no common cause.
Heard both sides who also filed written arguments.
The points that arise for consideration are:
1) Whether the claim is barred by limitation?
2) Whether the complaint filed by the Association is maintainable?
3) Whether the members of the complainant association are entitled to supplementary sale deeds in respect of the so called short fall in the extent of the undivided share of the plot.
4) Whether the members of the complainant are entitled to get reimbursement of Rs.20,000/- each towards the excess expenditure due to hike of registration charges.
5) Whether the members of the complainant association are entitled to any compensation on account of mental agony and harassment?
6) Whether the complainant association could successfully prove deficiency of service?
7) Whether there are any good grounds to interfere with the order of the District Forum?
In a recent judgement the Honble Supreme court exhorted the courts and tribunals that the point of limitation had to be considered seriously and it cannot be ignored on the ground that the stage for such consideration had gone by. In para 8 and 9 of 2002-AIR (SC)0-1210, 2002-SCC-3-165, 2002 (TLS)36010 in KERALA AGRO MACHINERY CORPORATION LIMITED v. BIJOY KUMAR ROY, the supreme court held as follows:
8.We find that the question of limitation has not been considered seriously at any stage. There is no dispute that the claim petition was barred by limitation. The National Commission has only observed that the delay was due to the assurances given by the dealer to get the defects rectified, but surprisingly no letter has been particularly indicated in the order much less within limitation, by which liability may have been acknowledged by the appellant. The Commission further observed that âat this stageâ, there could not be any question of interference in the order of the State Commission on the point of limitation. There seems to be no justification for negating the plea of limitation with such cursory and passing observations. The question of stage of the proceeding has no relevance so far as question of limitation is concerned. The claim has been filed beyond the period of limitation say more than four years after defects were pointed out.
9. Learned counsel appearing for respondent No.1 also could not indicate anything or produce document to show that the complaint was filed within time. We agree with the submissions made on behalf of the appellant t that the claim of respondent No.1 was not entertainable by the District Consumer Forum being barred by limitation.
In view of the above position of law, it is incumbent upon this Commission to meticulously scrutinize the aspect of limitation which had come to be considered in a good amount of detail by the District Forum ultimately to hold that the claim suffered from the infirmity of the limitation. It is a settled principle of law that the statutory period of limitation is not capable of being elongated by the very plaintiff who seeks to avoid the limitation. In fact, the circumstances that were sought to be relied upon by this Association to get over the limitation which is writ large on the face of it is to the effect that one of the members had successfully obtained relief for rectification very recently and therefore the rest of the members similarly situated should also get such a relief and in order to facilitate such dispensation, the limitation has to be reckoned from the date when she successfully got relief on 23-3-2007 which was confirmed by this Commission in FA.No.706/2007 as per Ex.A4. This line of argument is totally unacceptable for the reason that the relief of each individual and the corresponding remedy do not depend upon the success that was scored by vigilant litigants similarly situated. The other circumstance is the execution of the rectification deed executed by the opposite parties in favour of one of the members on 5-12-2007. This also is sought to be taken as the starting point for the limitation invoking analogy of being similarly situated which again is untenable. More funnily the association relied upon its own notice dated 25-2-2008 as marking yet another starting point of limitation. This is all the more incompetent to enlarge the limitation period. As the District Forum rightly pointed out that the dates when the members obtained sale deeds should be the starting point for clamoring against the shortfall as that clearly shows their knowledge of the deficiency if any, they might feel aggrieved of. It is abundantly clear from the exhibits both âA series and âB series that all the sale deeds have been executed by the end of 2004. This C.D. came to be filed in the year 2008. Thus the claim is clearly barred by limitation as the Consumer Protection Act, 1986 prescribes two years as period of limitation. It is not the case of the complainant that any petition to condone the delay was ever filed. Thus the complaint could have been dismissed on this ground alone.
The next question is as regards maintainability. Strictly speaking the complainant association is not one such association designated as eligible complainant as per the definition of the complainant set out in Section 2(1)(b) in as much as no where the complainant association professed nor proved to be a voluntary consumer association which makes all the difference in an association pure and simple measuring up to the status of the complainant within the meaning of Consumer Protection Act, 1986. Moreover, as rightly pointed out by the District Forum, the relief though bundled up into one item is comprised of several reliefs when correlated to each of the members of the complainant. When such is the case, each member has to come on record, tender his own documents separately and give evidence of the basic facts. That thing was rendered impossible by this packing up all the claims. Thus the maintainability of this complaint by the complainant in the present frame is clearly infirm.
The main relief sought in this complaint is to get a supplementary sale deed in favour of each of the member so far not given such benefit. In the first place their long silence after getting sale deed obviously as a sequel to the agreement has to be construed as a kind of waiver of all those terms that were not projected into the sale deeds. As a matter of fact, when a sale deed is executed in the wake of or as a sequel to the agreement, the agreement merges with the sale deed and totally yields place to the sale deed and thence forward the agreement ceases to have any independent existence. No doubt, some of the provisions of A.P. Apartments (Promotion of constructions and Ownerships) Act, 1987, which are accorded universal application unlike its chapter III contemplates, among other things an execution of sale deed in terms of the agreement. But at the same time, it does not preclude the promisee from abandoning some of the benefits contemplated by the agreement either expressly or implicitly. By accepting a sale deed which according to them embodied varied terms as compared to the terms of the agreement, the promisees by their own conduct contacted themselves out from rest of the terms not projected in the sale deed. In any view of the matter, this is a very belated claim beyond the period of limitation.
The relief referred in this point makes rather a funny reading. By virtue of this relief, the association demands the return of a part of the registration charges ascribable to the hike in the charges. In fact the enhancement in the registration charges cannot but be actuated only by a statute. So nobody can be compensated on account of the incidents of the advent of statutory changes. This kind of claim cannot be countenanced as it makes an attempt to shift the liability accrued on account of change of law on the opposite party though the Act always contemplates, the charges of registration being borne by the purchaser of the property.
The complainant craved compensation also on the ground of mental agony and harassment. It goes without saying that the association has neither mind nor faculty to feel harassment. There are pleas of mental tensions are available if only the litigant is a human being. On the face of it, it is an association and in the absence of the participation of the so called aggrieved, this head of claim has to be rejected as absurd.
The various findings amount to saying in clear terms that the complainant association failed to establish the charge of deficiency in service as against the opposite parties. This takes us to the next point which depends upon the finding as to the deficiency which we found as the District Forum did, in the negative. Thus in the absence of any proved deficiency of service, there is no occasion to find fault with the findings of the District Forum which are in conformity with the findings of this Commission as well. In other words, we do not see any merits in the appeal.
Accordingly the appeal is dismissed but without costs in the circumstances of the case.