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2010 DIGILAW 794 (ORI)

Seven Hills Estates Ltd. , Gandhi Nagar, Berhampur, Ganjam v. Purnima Pattnaik

2010-11-23

A.K.SAMANTARAY, SHRIMATI SMARITA MOHANTY, SUBASH MAHTAB

body2010
ORDER JUSTICE A.K. SAMANTARAY, PRESIDENT : By means of this First Appeal, the appellant, who was opposite party No.1 before the District Forum, Khurda at Bhubaneswar has assailed the judgment and order of the said District Forum dated 28.1.2009 passed in C.D. Case No.477 of 2007. 2.Before the District Forum, complaint was filed by the respondent - Smt. Purnima Pattnaik with a prayer for direction to the opposite party - Company to refund the deposited amount of Rs.72,000/- along with 18% interest thereon from the year 2002 till the date of actual refund. There was also a prayer for direction to the said opposite party-Company to pay Rs.50,000/- towards compensation for mental agony and harassment and to pay a further sum of Rs.15,000/- towards cost of litigation. 3.The facts as described in the complaint petition are that the opposite party - Real Estate Company had floated a plotted scheme at Matiapara, Phase - I near SIFA, Puri Road, Bhubaneswar in the year 1999 and accordingly, the complainant had booked three number of plots each comprising an area of Rs.2,000/- sqft., the cost of each plot being Rs.24,000/- payable in 30 monthly instalments at the rate of Rs.800/- per month. On 15.7.1999, the complainant paid the first instalment and necessary agreement was executed. The complainant went on making payment of monthly instalment in the name of the Company through Bank Draft through the agent of the Company and the last instalment was paid on 08.1.2002. The complainant was allotted three plots bearing Nos.64, 65 and 66 and she was informed by letter dated 25.10.2002 by the Company to deposit a sum of Rs.5,000/- for registration fee for execution of Sale Deeds. It is the case of the complainant that she visited the site and she came to know that the plots were not at all developed, there was no demarcation of the plots, no approach road to the project site and the project site was quite different from the site mentioned in the brochure. After knowing the said fact, she wrote a letter to opposite party No.1 (appellant) on 20.10.2003 to supply her the detailed information so as to enable her to complete the registration formalities. After knowing the said fact, she wrote a letter to opposite party No.1 (appellant) on 20.10.2003 to supply her the detailed information so as to enable her to complete the registration formalities. Thereafter, since no reply was received from the opposite parties by the complainant, the complainant sent a letter dated 13.7.2007 and Advocate notice on 05.9.2007 to opposite party No.1- Company for refund of the money and since no money was refunded by the opposite parties to the complainant, she filed the C.D. Case before the District Forum, Khurda at Bhubaneswar on 05.10.2007. 4.The opposite party/appellant-Company filed written version inter-alia stating that the complaint is barred by limitation, the complainant is not a consumer as there is neither purchasing of goods nor hiring any service, there is no deficiency in service on the part of the opposite party-Company, there is no breach of contract, the prayer made in the complaint petition involving money claim is not maintainable and the complainant has sought to be redressed by approaching the Consumer Fora as a belated money claim cannot be entertained in the Common Law Court. 5.During hearing of the complaint by the learned District Forum, the question of territorial jurisdiction of the Forum was raised by the opposite parties stating that the Forum had no territorial jurisdiction to entertain and hear the complaint. Since the matter was not decided conclusively by the District Forum stating that the same was mixed question of law and fact, the present appellant preferred a Revision Petition before this Commission bearing No.80 of 2008 and by order dated 30.12.2008, this Commission held that the District Forum had jurisdiction to adjudicate the dispute and thereafter the District Forum proceeded with the hearing and passed the impugned judgment and order, allowed the complaint ex parte and directed opposite party No.1/appellant to refund the amount of Rs.72,000/- to the complainant along with interest at the rate of 12 per cent per annum thereon from the date of deposit till the date of actual refund. The District Forum also directed payment of litigation cost of Rs.1,000/- to the complainant and further directed for compliance of the order within one month from the date of communication of the order. 6.We have heard Mr. N. Patra, learned counsel appearing for the appellant and the authorized agent of the respondent Mr. Surendra Pattnaik. During hearing of the appeal, Mr. 6.We have heard Mr. N. Patra, learned counsel appearing for the appellant and the authorized agent of the respondent Mr. Surendra Pattnaik. During hearing of the appeal, Mr. Patra, learned counsel for the appellant took us through the impugned judgment and order as well as the complaint petition of the complainant- Smt. Purnima Pattnaik and the written version filed by the opposite parties. With reference to the written version, Mr. Patra, learned counsel for the appellant vehemently submitted that though the question of limitation to entertain the complaint was very much raised in the written version, the learned District Forum has not touched the said point at all in the impugned judgment and order and the same being a question of law should have been dealt with and the complaint should have been dismissed. In this connection, he submitted that in the complaint petition at para - 6 and 7, the complainant has stated that she had received letter dated 25.10.2002 from opposite party No.1 to deposit Rs.5,000/- in favour of the Company towards cost of Sale Deeds, its registration and other expenses. She has stated further in para - 7 that after receipt of the letter dated 25.10.2002, she visited the project site of the plotted scheme and came to know that the plots were not developed, there was no demarcation and the project site was quite different from the site mentioned in the brochure. Though she tried to ascertain about the fact and the actual truth from the Company people, she could neither get any satisfactory reply nor were the documents supplied to her. Ultimately, on 20.10.2003, she made a representation to opposite party No.1/appellant requesting to supply detailed information/documents enabling her to complete the registration formalities. 7.Mr. Patra, learned counsel for the appellant argued that after sending the representation dated 20.10.2003, which according to the complainant was not responded to, she remained silent and again on 13.7.2007, she made another representation to the present appellant asking for refund of an amount of Rs.72,000/- along with interest in case the appellant failed to make registration of the plots by 16.8.2007. 8.We have perused the copy of the said letter dated 13.7.2007 so also the Advocates notice dated 05.09.2007. 8.We have perused the copy of the said letter dated 13.7.2007 so also the Advocates notice dated 05.09.2007. In the said letter sent by the Advocate for the complainant to opposite party No.1/appellant, opposite party No.1/appellant was asked to refund the amount of Rs.72,000/- along with interest at the rate of 18 per cent per annum within a period of 15 days of receipt of notice failing which the complainant might be advised for filing Criminal as well as Civil suit against him in the proper Court of law for realization of the amount. Ultimately, this complaint as we find was filed on 05.10.2007. 9.Mr. Patra, learned counsel for the appellant submitted that since the limitation period for filing of the Civil suit had already expired long back, the complainant filed this consumer complaint before the District Forum. Although no petition for condonation of delay was filed along with the consumer complaint, without looking to as to whether the complaint was within the period of limitation or not, it was admitted by the learned District Forum. Mr. Patra, learned counsel for the appellant further argued that in view of the clear and categorical mention by the complainant in paragraph-6 and 7 of her complaint petition that after receipt of the letter dated 25.10.2002, she herself visited the site and found that the site was not developed nor plotted, there was no approach road and the site was quite different from the site given in the brochure, the cause of action for the complainant arose soon after 25.10.2002 and no complaint or any other legal proceeding was initiated for refund of the deposited amount. Even if it is accepted that the complainant wrote a letter on 20.10.2003 more than a year thereafter and did not get any reply from the opposite party within a reasonable time, she could have filed the consumer complaint thereafter. Without doing that and after realizing that no Civil suit could be filed for realization/refund of the amount deposited as the same was barred by limitation, she sent letter herself and through her advocate in the month of July and September, 2007 and one month thereafter, the C.D. Case was filed. Without doing that and after realizing that no Civil suit could be filed for realization/refund of the amount deposited as the same was barred by limitation, she sent letter herself and through her advocate in the month of July and September, 2007 and one month thereafter, the C.D. Case was filed. 10.By the date the C.D. Case was filed, i.e., on 05.10.2007, the complaint had already become belated and barred by limitation as the cause of action arose in 2002 when the complainant herself visited the site and found the site to be quite different given in the brochure. Law is well settled that making of correspondence does not enlarge the period of limitation and writing of letter in the month of July, 2007 and sending Advocate’s notice in the month of September, 2007 cannot extend the period of limitation and in any view of the matter, the C.D. case filed by the complainant/respondent was hopelessly time barred and the learned District Forum without hearing on the question of limitation when the complaint was filed had committed an error in entertaining the same. 11.When on the question of limitation, the C.D. Case of the complainant/respondent is found to be not maintainable, we allow the appeal preferred by opposite party No.1/appellant, set aside the impugned judgment and order of the District Forum, Khurda at Bhubaneswar dated 28.1.2009 passed in C.D. Case No.477 of 2007 and direct dismissal of the said C.D. Case. Records received from the District Forum, Khurda at Bhubaneswar be sent back forthwith. SHRIMATI SMARITA MOHANTY, MEMBER SHRI SUBASH MAHTAB, MEMBER. Appeal allowed.