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2005 DIGILAW 996 (BOM)

Sumati Keshav Joshi v. Techna Essesa Engineers

2005-08-08

B.B.VAGYANI, S.G.NAGARALE

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Justice B. B. VAGYANI, Hon'ble President:- The revision application is filed by the unsuccessful claimant. District Consumer Forum, Mumbai Suburban, dismissed the consumer complaint mainly and solely on the ground that the complainant is not a Consumer. The facts giving rise to this to this revision application are as under:- One Mr. Keshav Padmakar Joshi is in occupation of flat no.9 of Building no.3 of Jeevan Nagar Co-op. Housing Society, Mulund(E), Mumbai. Ms. Sumati Keshav Joshi is daughter of occupant Shri. Keshav Padmakar Joshi. The work of external repairs of building no.3 was given to the O.P. Mr. Keshav Padmakar Joshi. occupant of Block no.9 paid Rs.37,000/- through Repairing Committee of Jeevan Nagar Co-op. Housing Society to the O.P. Mr. Keshav Padmakar Joshi paid Rs.10,000/- by cheque directly to the O.P. for carrying out the internal repairs of Block no.9. The complainant has serious grievance about the manner in which the repairs are carried out. Therefore complainant filed consumer complaint before the District Consumer Forum Mumbai Suburban. Said complaint was resisted by the Builder. The District Consumer Forum came to the conclusion that complainant who is daughter of Mr. Keshav Padmakar Joshi is not a Consumer within the definition of Section 2(l)(d) of Consumer Protection Act, 1986 and consequently, dismissed the complaint as not maintainable. Feeling aggrieved by the said order, the original complainant has filed this revision. We heard the Ld. Advocate Mr. Shirish Deshpande for the applicant and Mr. Milan Bhise-Advocate for the Respondent/org. O.P. Ld. Advocate Mr. Milan Bhise raised serious objection with regard to maintainability of the revision on the ground of limitation. According to him revision is hopelessly time barred. Ld. Advocate Mr. Shirish Deshpande argued that no period of limitation for filing revision was prescribed in Consumer Protection Act. 1986 and therefore. revision application is perfectly maintainable-in-law. The specific time limit is now provided in the Regulations of 2005. In exercise of powers conferred by Section 30(a) of Consumer Protection Act, 1986, the National Consumer Disputes Redressal Commission with the previous approval of Central Government have framed regulations called Consumer Protection Regulations 2005. Regulations' came into force on the date of their publication in the official Gazettee. The notification is issued on 31-5-2005. Regulation 14 is with regard to limitation. For revision petition, limitation of 90 days from the date of order or from the date of receipt of the order is provided. Regulations' came into force on the date of their publication in the official Gazettee. The notification is issued on 31-5-2005. Regulation 14 is with regard to limitation. For revision petition, limitation of 90 days from the date of order or from the date of receipt of the order is provided. Before 31-305, specific time limit for filing revision application was not provided. In the case of France B. Martins and another Vs. Mrs. Mafaida Maria Teresa Rodrigues, 1986-99 Consumer 5089 (NS), Supreme Court has held that when the Legislature, in its wisdom, thought it appropriate not to prescribe the period of limitation for proceedings under the Act, the courts cannot apply the provisions by implication. Position therefore boils to this that before introduction of Consumer Protection Regulations of 2005, no specific time limit for filing revision application was provided. Therefore, the objection raised to the maintainability of the revision of the ground of limitation must fail. The tenor of the rejection order would clearly indicate that because of lack of ownership, the status of consumer is denied to the complainant. Section 2(1)(b) of the Consumer Protection Act, 1986 defines 'Complainant'. Complainant means the 'Consumer'. Section 2(l)(c) defines complaint, which means any allegation in writing made by a complainant. Section 2(1)(d)(i) defines 'Consumer'. Consumer means any person who buys any goods for a consideration, which has been paid or promised or partly paid and pm1ly promise, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promise, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose. 2. Section 2(1)(d)(ii): A Consumer means any person who hires or avails of any services for a consideration which has been paid or promised or pal1ly paid and pat1ly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised. 3. Under the Act, the ownership is no where contemplated or even remotely suggested. 3. Under the Act, the ownership is no where contemplated or even remotely suggested. Acceptance of Rs.37,000/- through Repairing Committee and Rs.10,000/- directly from the complainant would dearly go to show that the consideration for repairing was paid to the O.P./ Builder. It is true that flat belongs to one Mr. Yasudeo Narayan Dabke. However, flat is in occupation of Mr. Keshav Padmakar Joshi. Mr. Keshav Padmakar Joshi has given authority to his daughter to file a consumer complaint. A person in possession of block can file a consumer complaint, if consideration is flown from such an occupant to the Builder. The consideration was paid to the builder by the complainant for carrying out external as well as internal repairs of Block no.9, which is in possession of Mr. Keshav Padmakar Joshi. Possession of Complainant is not denied. Mr. Yasudeo Dabke has not raised any objection for filing of consumer complaint by Mr. Keshav Padmakar Joshi. Mr. Keshav Padmakar Joshi is not satisfied with regard to quality of work. According to him, bui1der has left several defects in the work. When Law does not contemplate the element of ownership as a pre-requisite condition for filing consumer complaint before the Consumer Forum, the concept of ownership cannot be imp0l1ed in the Act without any justification. Under the circumstances, we are of the clear view that impugned order passed by the Forum below suffers from illegality. In the result we pass following order :- ORDER 1. Revision application is allowed. 2. Impugned order passed by the Forum below is quashed and set aside. 3. Matter is remanded to the Forum below for decision afresh. 4. Forum below is directed to dispose of the main complaint as early as possible within a period of 3 months from the receipt of the order herein. 5. Pronounced and dictated in the open court. 6. Copies of the order herein to be furnished to the parties. Revision allowed.