National consumer disputes redressal commission

FIRST APPEAL NO. 196 OF 2011

Shri Ashok Kumar Sharma Plot No.73,Sector 17, Koper Khairane, Navi Mumbai 400 709 Through Power of Attorney Holder of Shri Sanjiv H. Sharma, Plot No. 73, Sector 17, Koper Khairane, Navi Mumbai 400709

                                         …         Complainant/Appellant

         Versus

M/s. Megha Properties Developers Pvt. Ltd. C/335, Big Splash Turbhe Road, Vashi Sector 17, Navi Mumbai 400 705, Mahartashtra

                                               …    Opp. Parties/Respondents

BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

HON’BLE MR. SURESH CHANDRA, MEMBER

          For the Appellant   : Mr. Sunil K. Kalra & Mr. Vikram Gola, Advocates

O R D E R

2.       Brief facts of the case are that the complainant booked Shop No. 2 with the opposite party and made payment of Rs.7,46,182/- from time to time, but still possession has not been handed over to the complainant, hence, filed complaint for directions to the opposite party to hand over peaceful and vacant possession of Shop No. 2 or in the alternative another shop of the same size along with prayer for awarding interest, compensation, cost, etc.  Learned State Commission vide impugned order dismissed the complaint on the ground that after termination of contract there exists no relationship between the parties as the ‘consumer’ and ‘service provider’ and complaint is also time barred. 

 4.       Learned Counsel for the appellant argued that as occupancy certificate has been issued in 2005, cause of action continued upto 2005 and complaint filed in 2003 is well within limitation and learned State Commission has committed error in dismissing complaint on the ground of limitation, hence, appeal may be accepted and order of State Commission may be set aside.  On the other hand, learned Counsel for the respondent argued that contract stood cancelled vide letter dated 11.12.1998 and further vide letter dated 14.12.1998 complainant asked for refund of deposited amount along with interest, hence, complaint filed in 2003 is clearly time barred and learned State Commission has not committed any error in dismissing complaint on the ground of limitation.

4.       Perusal of record reveals that complainant booked Shop No. 2 with the opposite party and made some payment. Ex.‘A’ reveals that complainant always made payments with delay and Rs.5,68,822/- remained outstanding against him upto 10.11.1998.  It is admitted case of the parties that opposite party issued last and final reminder in December, 1998 and asked complainant to deposit outstanding amount before 5.12.1998. It was also mentioned in reminder that in case he fails to deposit the outstanding amount, the allotment shall stand cancelled without any further notice. Complainant vide letter dated 14.12.1998 requested the opposite party to refund Rs.7,46,182/- with 24% p.a. interest within 15 days failing which the complainant shall take appropriate proceedings.  This notice was again replied by the opposite party vide letter dated 9.1.1999 in which complainant was directed to make all outstanding payments within 10 days failing which shop will finally stand cancelled without any further reference.  In reply to this letter again the complainant vide letter dated 19.2.1999 asked opposite party to comply with the directions mentioned in letter dated 14.12.1998. These documents reveal that complainant failed to make payment as agreed between the parties and opposite party failed to construct and give possession of shop to the complainants, allotment stood cancelled in December, 1998 which was reaffirmed in January, 1999 and as the complaint was filed in 2003, it is clearly time barred and learned State Commission has not committed any error in dismissing complaint being time barred.

5.       Learned Counsel for the appellant placed reliance on (2008) 7 SCC 585 – DLF Universal Ltd. Vs. Ekta Seth and Anr. in which allotment was cancelled due to non-payment of money but the Apex Court in exercise of powers under Article 142 directed the builder to return 50% of the forfeited amount to the allottee and further observed that this direction may not be treated as precedent.  This citation does not help to the complainant at all on the ground of limitation.  He also placed reliance on JT 2008 (10) SC 34 – V.N. Bharat Vs. D.D.A. & Anr. in which allotment was restored as show cause notice was never received by the allottee and DDA cancelled the allotment. This citation also does not help to the complainant because in the case in hand complainant admits receipt of notice given by opposite party and has prayed for refund of money with interest but has not taken appropriate steps within time and in such circumstances complaint being clearly barred by limitation has rightly been dismissed by the learned State Commission.

6.       Consequently, appeal filed by the appellant against the respondent is dismissed with no order as to costs.

PRESIDING MEMBER

                                                                                                                        Sd/-

MEMBER

(From the order dated 5.10.2011 in First Appeal No.102/2010 of the

Andhra Pradesh State Consumer Disputes Redressal Commission, Circuit Bench at Tirupathi)
 

Mudivarthi Radha Krishna S/o Raghavender Rao D.No. 27-2-56, Balaji Nagar, Nellore

…  Petitioner
Versus
The Branch Manager, Andhra Bank Plot No.15, Ward No.21, Balajinagar, Nellore Distt. Nellore

                               …  Respondent

 

BEFORE:                                                       

HON’BLE MR. K.S. CHAUDHARI, PRESIDING MEMBER

HON’BLE MR. SURESH CHANDRA, MEMBER

For the Petitioner                  :   Mr. C.P. Suresh, Advocate

This revision petition has been filed by the petitioner, who is the original complainant, against the order dated 5.10.2011 passed by the Andhra Pradesh State Consumer Disputes Redressal Commission, Circuit Bench Tirupathi (‘State Commission’ for short) by which the State Commission allowed the appeal filed by the respondent/opposite party challenging the order dated 20.11.2009 passed by the District Consumer Disputes Redressal Forum, Nellore by which the District Forum had partly allowed the complaint of the petitioner and directed the respondent to pay Rs.50,000/- to the complainant alongwith interest @ 9% p.a. from the date of filing of the complaint. Vide its impugned order the State Commission the State Commission set aside the order of the District Forum and dismissed the complaint with cost computed at Rs.2,000/- payable by the petitioner. It is in these circumstances, that the present revision petition has been filed.

2.       We have heard Mr. C.P. Suresh, Advocate appearing for the petitioner and perused the record.

3.       The only point for consideration before us in this case is as to whether the respondent Bank committed any deficiency in service in the collection of the cheque deposited by the petitioner with it. It is not under dispute that the petitioner presented the cheque in question dated 20.6.2007 for Rs.50,000/- with the respondent Bank on 17.12.2007. The cheque was valid upto 20.12.2007 and it was an outstation cheque drawn on Allahabad Bank, Hyderabad. The State Commission while reversing the finding of the District Forum held that if there was any delay, it was the complainant who was guilty of delay in presentation of cheque just three days prior to the expiry of the cheque. More so, when it was an outstation cheque, he ought to have presented the same well in advance to enable the OP Bank to collect the amount. The complainant cannot present the cheque at the 11^th hour and then complain that there was delay which would constitute deficiency in service. In addition to this, the State Commission has also recorded the following reason in support of the impugned order: -

“We may also state that the complaint for the reasons not known did not implead Allahabad Bank, Himayatnagar, Hyderabad as a party which had returned the cheque on the ground that it was stale.  Appellant could prove by irrefutable documentary evidence on the day when the complainant had presented the cheque it has sent on the very same day for collection of amount to Hyderabad.  Subsequent events were not in the hands of appellant bank in order to find out nor any deficiency in service attributable to Allahabad Bank at Hyderabad.  Importantly, he has suppressed the document which viz. , cheque return memo, obviously he was afraid that entire case falls two ground.  Considering the circumstances, we are unable to fix liability on the appellant bank nor we can say that there was deficiency in service on its part.  The complainant is guilty of his own acts by presenting the chequejust three days before expiry.  We do not subscribe to the view expressed by the Distt. Forum in this regard.”

4.       We agree with the view taken by the State Commission. Admittedly only three days’ time was left before the expiry of the cheque which was an outstation cheque, when it was presented by the petitioner before the respondent Bank. The petitioner should have known that he himself was to be blamed for such extraordinary delay in presentation of thischeque and as such he had subjected himself to grave risk and if the validity period expired before the cheque could reach the payee bank which was at Hyderabad, the petitioner himself is to be blamed for this delay. The respondent Bank could not be held responsible for the same since it had dispatched the cheque well on time after its presentation for collection. Regarding the non-joinder of the payee Allahabad Bank, Hyderabad with a view to prove the allegation regarding the delay on the part of the respondent Bank, learned counsel submitted that only an oral request was made to this effect before the District Forum and as such it was not possible to produce any formal order of the District Forum regarding refusal to accept such request. We are not convinced with the explanation. The District Forum apparently did not appreciate the factual position properly while holding the respondent Bank deficient in service. In the circumstances, we do not find any reason to interfere with the impugned order which is based on the undisputed facts and the correct legal position.

…………………………..

                  MEMBER

Raj/