Judgment:
HONBLE M. THANIKACHALAM J, PRESIDENT.
1. The opposite party unable to succeed in opposing the claim of the respondent as complainant before the District Forum, has come to this commission as appellant.
2. The respondent/ complainants case briefly as follows:
The complainant, attracted by the advertisement made by the opposite party, approached them to purchase an area of five grounds, with 15 coconut trees, 10 fruit trees and 5 teak trees, for a consideration payable for one unit at Rs.1 lakh, thereby paid an advance of Rs.10000/- also, agreeing to pay the balance at Rs.2500/- per month, within 36 months, for which an agreement was also entered into between the parties on 21.1.94. In all, as per the agreement, the complainant paid the entire consideration, within the time stipulated, whereas the opposite party, failed and neglected to carryout the services as promised by them. Further, the opposite party also, failed and neglected to plant the trees, and to provide amenities, as detailed in the agreement. Thus the opposite party had committed deficiency in service, as defined under the Consumer Protection Act.
3. The opposite party, without the knowledge of the complainant and consent, had sold the property to some third party, for a sum of Rs.1,50,000/- and appropriated the money also, as if that amount was adjusted for the money payable by the husband of the complainant, which is arbitrary. The opposite party has no right at all either to sell the property purchased by her or appropriate the entire sale consideration for the alleged due, by the husband. The complainant came to know about the sale only from the letter received by the husband dt.26.7.2001. Since the opposite part has failed and neglected to execute the registered sale deed in favour of the complainant, inspite of repeated reminders, the complainant has left with no option, but to approach the Forum for redressal. Hence the complaint.
4. Appellant opposed the claim on the following grounds:
The complaint is not maintainable and her claim that she is a consumer as defined in the Consumer Protection Act, is not justified. The claim is barred by limitation. There was an agreement between the parties on 21.1.1994, under which it is agreed that instalments should be paid covering the total consideration of Rs.1 lakh, which was also paid. Te complainants husband, has entered into a builders agreement with M/s.Green Peace Constructions (P) Ltd., which is a sister concern of the opposite party, for constructions of a flat in 3rd floor, north side of No.8, Nehru Nagar, Adyar. There was balance due for the sale of undivided share of land. The complainants husband urged that they need the flat in connection with the religious function and obtained possession also, giving consent to sell the plot No.25, and apportion the sale proceeds towards balance outstanding, and accordingly, on said consent, property sold and adjusted for the amount payable by the husband of the complainant, which is known to the complainant also. Suppressing the above facts, the case filed is untenable. In view of above narrated facts, there are only claims and counter claims, which has to be decided in the arbitration proceedings as per the clause available in the agreement and in this view the complaint is not maintainable.
5. The District Forum, Chennai (South), scanning the above pleadings and analyzing the documents, viz. Ex.A1 to A38 and B1 to B5, derived a conclusion as if the claim is not barred by limitation, the opposite party is not entitled to sell the plot, for which there is an agreement between the complainant and the opposite party, without the consent of the complainant, and this being the position question of appropriation of the sale proceeds does not arise, that as such the opposite parties are liable to refund the amount. Thus deducing, an order came to be passed on 29.6.2006, directing the refund of Rs.1 lakh, alongwith interest @6% p.a., from 9.4.97, till realization, in addition to a compensation of Rs.10000/-, which caused grievance to the opposite party, resulting this appeal.
6. Heard the learned counsel for appellant as well as the respondents, perused the written submission in addition to the documents filed by them and the lower court order.
7. It is the forceable submission of the learned counsel for appellant, that the opposite party/ appellant is entitled to succeed on four grounds, viz.
(1) The complainant is not a consumer
(2) The claim is bad for non-joinder of necessary parties viz. the
husband of the complainant
(3) The claim filed before the Consumer Forum, invoking arbitration clause is not maintainable.
(4) The claim is barred by limitation.
8. Opposing the above grounds, it is the submission of the learned counsel for respondent / complainant, that the opposite party had practiced unfair trade practice, in not providing the facilities promised, as per the advertisement, as well as undertaken by them in the agreement, that the agreement between the parties is only a development agreement, thereby the complainant will come within the meaning of the consumer and that the question of limitation also will not come into play because of the fact that there was continuous cause of action.
9. We have given our anxious thought and meticulously perused the records, as well pleadings including written submissions. Whatever may be the other defense raised by the appellant, we are of the view that the appellant is entitled to succeed on the ground of limitation.
10 It is the mandate of Sec.24 (A) of Consumer Protection Act, that neither the District Forum, nor the State Commission nor the National Commision, shall admit a complaint, unless it is filed within two years from the date on which the cause of action had arisen. Though the period is sharp, exception also given under Sec.24 (A) (ii), including proviso that the delay could be condoned, recording reasons to condone the delay. In our case , admittedly aid of that provision is not invoked, and therefore we have to depend upon only Sec.24 (A) (i).
11. It is an admitted fact that the last instalment was paid on 9.4.1997, and this date is also shown as the date of cause of action, based upon the payment, as seen from paragraph 13 of the complaint. No where it is said, that the cause of action, is a continuous one, and therefore despite the fact that the last payment was made on 9.4.97, there is another date of cause of action, from which date, the period of calculation to ascertain the limitation, has to be taken. The letter issued on 26.7.2001, after four years, or calling upon the opposite party for compliance of demanding the amount as the case may, may not renew the cause of action, or give life to the time barred claim, if it had exceeded two years, as said under the provisions of the Consumer Protection Act. Therefore, the date of cause of action in this case must be 9.4.97. In this contest, we have to see the reliefs claimed in the prayer also.
12. The first relief sought for on the basis of the deficiency in service is directing the opposite party, forthwith registering the property bearing Plot No.25, measuring 25 grounds, or in the alternative, to refund the amount of Rs.1 lakh. The main relief claimed is the one for specific performance. The period contemplated for enforcing specific performance is three years, from the date fixed for the performance of if no such date is fixed, when the complainant has noticed that performance is refused. In this case, as per the agreement, a period is fixed, not enforced within the said period. This being the position, when the remedy to file even a civil suit is barred, that cannot be revived by coming to the Consumer Forum, further here also it is not within the time contemplated, as discussed above. In this case, after the final payment viz. 9.4.97, within three years alone, a suit for specific performance could be enforced, since no case of denial is pleaded and proved. If that is taken, the claim should have been filed within three years i.e., on or before 9.4.2000, where as this case came to be filed only in the year 2002. All the amounts were paid prior to 9.4.97, admittedly, which is sought to be refunded, seeking a direction, thereby showing the date of cause of action is only 9.4.97, and if at all, for the previous instaments alone, there should have been continuous cause of action, in view of the agreement provided instalment payment, thereby giving life for each instalments, till 9.4.97. Thereafter, there is no money transaction admittedly. This being the position, within two years from 9.4.97, the claim should have been filed, but unfortunately, in this case the complaint came to be filed on 4.10.2002, and therefore it is to be positively held, that the claim is bared by limitation. Unfortunately, the District Forum, has not at all considered the question of limitation in detail, whereas curiously an observation is made, which reads âin any event, as the possession certificate and sale deed was not executed, the cause of action is continuous and the question of limitation does not ariseâ, and this observation has been made, without understanding the scope of limitation, as well as the date of cause of action or how to calculate the period of limitation etc. In this case, no deficiency is complained, after the execution of the sale deed or after the completion of the agreement between the parties. The agreement has not ripen into sale deed, and there is no hire of service for consideration, whereas all the payments are made only towards the purchase money, i.e., towards sale consideration, and this being the position, there is no question of continuous cause of action and on that basis, we are unable to bring the claim within the limitation. It is also not the case of the complainant, that is, it is a continuous cause of action, in the pleadings.
12. The learned counsel for appellant submitted that when a remedy by way of civil suit was barred by limitation, complaint also barred by limitation, before the Consumer Forum, placing reliance upon the decision reported in 1992 (1) CPR 121, and this is the dictum of National Commission also, as seen from III 2003 CPJ 10 NC. As rightly submitted by the learned counsel for appellant, and as ruled by National Commission in III (2003) CPJ 18 (NC), once limitation started running, one could not make it to rerun, thereby saving the limitation, and the cause of action cannot be assumed to continue till date of denial of claim. Thus based upon the facts, as well as on law also, as pointed out by the learned counsel for appellant, we are of the considered opinion that the claim is barred by limitation and in this view appeal deserves acceptance.
13. It is the submission of the learned counsel for appellant, that the agreement between the parties relate to immovable property, and therefore the transaction of bills with sale of immovable property and therefore according to him transaction bills with sale of immovable property cannot be a subject matter of the complainant probably placing reliance upon a decision of the National Commission in II (1993) CPJ 166 (NC), wherein it is observed that the transaction also deals with the sales/transfer of immovable property, on the basis of it, it cannot be a subject matter of a complaint, under Consumer Protection Actâ. If the complaint is purely subject mater of immovable property, not related to service, then the submission may be acceptable to some extent, whereas, as per the averments in the complaint, which we are entitled to see at the first instance, that it relates to service also, and therefore, the jurisdiction of the consumer forum, cannot be ousted, eventhough it was service since it related to immovable property. In this context, we have to see agreement between the parties, though much said about the service, said to have been undertaken by the complainant, no material is produced to accept the same as service, as defined under the Consumer Protection Act, whereas the agreement appears to be simplicitor relating to schedule B immovable property, which says premises, premises being a cottage garden, with an area of about 5 grounds, situated within the âA schedule property. As seen from the clause 11 of the agreement, the promoter has undertaken to divide the A schedule property into plots, having the entire âA schedule property, providing childrens park, etc., and that is not related to âB schedule property. If we analyse the case so strictly, the service alleged may not be independently applicable to âB schedule, since relief sought in this case is only in respect of âb schedule property, i.e., for execution of the sale deed as the case may be, which was also not accepted by the lower forum, whereas alternatively , relief alone has been granted.
14. It is the further submission of the learned counsel for appellant, that commission has no power to enforce the contract between two parties, placing reliance upon a decision in M/s. Sakthi Sugars Ltd., Vs. Sridhar Sahoo and Ors., reported in II (1999) CPJ 4 (NC), wherein we find the observation âBe that as it may, the question of not deposing the margin money in time is a matter o f contract between the twoparties and cannot be a subject of a consumer dispute as it of Shri Sahu, the respondent No,1 before us is that of a seller and as has been held in the cited case, aseller cannot claim the status of a consumerâ. In view of the above decision, since no contra decision is brought to our notice, since it appears to be in this case, the matter between the parties is based upon a simple contract relating to immovable property, no connection with service, then the consumer court may not have jurisdiction, and in this view also it should be held, the claim is not maintainable.
15. Other submissions of the learned counsel for appellant, that the case is bad for non-joinder of the husband of the complainant, and not invoking arbitration clause, is bad, appears to be unacceptable, since the remedy available before this Forum, is in addition to the remedy available elsewhere. Further, though some adjustment is pleaded by he opposite party, if at all the opposite party alone should have taken steps, to implead the husband, which they failed to do so, and therefore prima-facie it cannot be said that the complaint is not maintainable, because of non-joinder of necessary parties, whereas it could be said, the case is bad for non-joinder of the purchase of this property by third party, in view of the 1st prayer.
16. Admittedly the plot agreed to be conveyed to the complainant has been sold and the amount was apportioned by the opposite party, for the amount said to have been payable by the husband of the complainant, in someother transaction. It is the case of the opposite party also that only with the consent of the complainant, the property was sold and amount was apportioned. Admittedly, the property was sold, but the complainant questioned the same at the earliest point of time though last instalment was paid on 9.4.97. Correspondence between the opposite partys sister concern and the complainants husband would indicate that there must have been an understanding between the parties, the sale of property which was the subject matter of the sale agreement and to adjust the amount, payable by the husband of the complainant, towards the flat, purchased from the opposite partys sister concern, which is also an admitted fact, i.e., the purchase of flat. Because of this reason alone, we are compelled to infer that the complaint was silent from 1997, not taking any action, and when there was some dispute, belatedly a claim has been lodged, which is also time barred, as concluded by us supra. Thus it is to be held the amount paid on behalf of the complainant was adjusted for the flat, purchased by her husband, and therefore the question of refunding of the amount may not arise for decision.
17. The submission of the learned counsel for complainant/respondent, placing reliance upon Ex.A1, that the promoter or developer/ opposite party, had agreed to develop the property, as stated therein, should be construed as service, appears to be unacceptable to us, since it is no where stated that they will develop so, after the purchase or during the agreement etc., where as it is said, the property is ideally located with a garden of 15 coconut trees etc., and might have been available also, and for the non-availability of those trees, we do not have any material except the bare allegations. In this view also we are of the considered opinion that the opposite party has not agreed to do any service, for the amount collected by way of instalments, whereas the easy instalments collected were only towards the sale consideration, which cannot be termed as the amount collected for rendering service, or the opposite party will come within the meaning of a person, who had agreed to serve by developing the property for consideration. The District Forum, instead of analyzing the case, based upon the materials, in our opinion has committed grave error, even not giving a finding whether the complainant is a consumer, whereas negativing the plea of the adjustment, taking into consideration the admitted sale agreement, not giving any finding how the case comes within the definition of the continuous cause of action, thereby not barred by limitation, rendered finding, which requires to be set aside.
18. In the result, the appeal is allowed, and the order of the District Forum, Chennai (South) in OP.No.129/2003, is set aside, and the complaint is dismissed. There will be no order as to cost throughout.
Registry is directed to handover the Fixed Deposit Receipt, to the appellant/ opposite party, made by way of mandatory deposit, duly discharged.