Shri Satish Dattatray Vadke, Dist. Raigad Vs. Smt. Vanita Sitaram Kadam - Court Judgment

Oral Order:-

Per Justice Mr. B.B. Vagyani, Honble President

We heard Mr. R.K. Naik, Advocate for the appellant and Mr. Nitin Gangal, Advocate for the respondent.

Since, identical law point is involved in these two appeals and builder is common, therefore, we propose to dispose of these two appeals by common order.

Smt. Vanita Sitaram Kadam/respondent in Appeal No.1175/2008 had filed consumer complaint No.146/2007 against builder/Shri Satish Dattatray Vadake. Shri Sadanand Narayan Thakur/respondent in Appeal No.1177/2008 had filed consumer complaint No.147/2007 in the District Consumer Forum Raigad. Builder-Shri Satish Vadake opposed the consumer complaints of Smt.Vanita Kadam and Shri Sadanand Thakur mainly on the ground of limitation. A specific contention was raised in the written statement that both the consumer complaints were time-barred. District Consumer Forum negatived the defence raised by the builder. District Consumer Forum allowed both the consumer complaints and granted certain reliefs in favour of complainants. District Consumer Forum issued certain directions to the builder and asked him to rectify the defects. Feeling aggrieved, the builder has filed Appeal No.1175/2008 and 1177/2008.

We examined the point of limitation, which goes to the root of the matter. District Consumer Forum without digesting the point of limitation thoroughly, took a perfunctory view and allowed both the consumer complaints filed by Smt.Vanita Kadam and Shri Sadanand Thakur, which are in fact hopelessly time-barred. District Consumer Forum has taken into consideration the issuance of notice by the flat purchasers and having taken into account the date of issuance of notice, jumped to a conclusion that the consumer complaints filed by Smt.Vanita Kadam and Shri Sadanand Thakur are well within limitation. District Consumer Forum has dealt with serious issue of limitation cursorily on internal page-9 of the judgement. Admitting status of builder does not mean that builder has acknowledged his time-barred liabilities. Saying something irrelevant, District Consumer Forum has given complete go-bye to the issue of limitation. Reasons assigned by the District Consumer Forum do not appeal to reasons.

In case of Smt.Vanita Kadam, agreement was executed on 01/03/2005. She admits on oath to have received possession of the flat on 28/05/2005. She has made grievance with regard to defective construction. She however filed consumer complaint on 01/12/2007. As per Section 24-A of Consumer Protection Act, 1986, consumer complaint is required to be filed within period of two years from the date of accrual of cause of action. Smt.Vanita Kadam occupied flat at the fag end of May 2005. She had therefore an opportunity to see leakage and other defects in construction. However, she kept quiet for more than two years. The consumer complaint should have been filed on or before 28/05/2007. Consumer complaint was however filed on 01/12/2007. Application for condonation of delay was not placed on record by Smt.Vanita Kadam. In absence of prayer for condonation of delay, Consumer Forum cannot invoke its jurisdiction to condone the delay on its own. For condonation of delay, prayer for condonation of delay is must. District Consumer Forum did not at all consider this vital issue. In fact issue of limitation is not dealt with properly. The award passed by the District Consumer Forum therefore suffers from illegality. We therefore hold that the consumer complaint filed by Smt.Vanita Kadam is hopelessly time-barred and therefore it liable to be dismissed.

In the case of Shri Sadanand Thakur/complainant in consumer complaint No.147/2007, agreement took place on 28/04/2005. He received possession of the flat in June 2005. He filed consumer complaint on 28/11/2007. Shri Sadanand Thakur received possession of the flat in June 2005. He therefore had full opportunity to witness and experience the defects in the construction work including leakage. However, he did nothing for period of two years. Having regard to the date of possession, consumer complaint should have been filed on or before June 2007. In fact consumer complaint was filed on 28/11/2007, which is hopelessly time-barred. Shri Sadanand Thakur had not filed application for condonation of delay. There was no prayer on his behalf in the matter of condonation of delay. In absence of prayer, delay cannot be condoned. The Consumer Forum cannot invoke its jurisdiction suo-moto for the purpose of condonation of delay. Issue of limitation is thus side-tracked by the District Consumer Forum. Reasons given by District Consumer Forum do not at all convey any meaning. We therefore hold that consumer complaint filed by Shri Sadanand Thakur is hopelessly time-barred. The award passed by the District Consumer Forum therefore, suffers from illegality. We therefore hold that the consumer complaint filed by Shri Sadanand Thakur is liable to be dismissed. In the result, we pass the following order :-

Order:

1. Appeal No.1175/2008 and 1177/2008 are allowed with cost of Rs.1,000/- in each appeal.

2. Impugned order passed by District Consumer Forum in favour of Smt.Vanita Kadam and Shri Sadanand Thakur stand quashed and set aside.

3. Consumer complaint No.146/2007 and 147/2007 stand dismissed.

4. Misc. Appl. Nos.1637 and 1639/2008, which are for stay stand disposed of.

5. Copies of the order be furnished to the parties.