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Mohan Umarye & Others v/s Madhavi Investment & Trading Pvt. Ltd. & Another

    Complaint No. 6 of 2000

    Decided On, 22 September 2000

    At, Goa State Consumer Disputes Redressal Commission Panaji

    By, THE HONOURABLE MR. J.N. PRABHUDESSAI & THE HONOURABLE MR. SANDRA VAZ E CORREIA
    By, MEMBERS

    For the Complainants: N. Bodke, Advocate. For the Opposite Parties: U. Shetye, Advocate.



Judgment Text

Sandra Vaz e Correia, Member

1. By this order, we shall dispose off an application for condonation of delay dated 9.2.2000 moved by the complainants.

2. The issues requiring determination in this application are, (a) whether the complainants prove that the cause of action of their complaint arose on 10.2.1998, and (b) whether the complainants have show sufficient cause for condonation for delay.

3. Both parties advanced lengthy arguments. Counsel for the complainants argued before us that the cause of action for filing of the complaint arose on 10.2.1998 when the opposite party No. 1 refused to rectify the deficiencies pointed out in complainant’s letter dated 2.2.1998. He relied on 2000 (1) CPR 154. He further contended that the complainants did not file the complaint earlier for the reason that they were advised by their Advocate that it could be filed only after the entire project was complete, and that the present application was filed by way of abundant caution. On the other hand, Counsel for the opposite party No. 1 vehemently opposed the application and submitted that the same was not maintainable under the Consumer Protection Act. He pointed out the contradictions in the averments made in para 22 of the complaint and the present application for condonation of delay and submitted that the complainants were attempting to confuse the Commission about the date on which the cause of action arose.

4. It is well settled that in case of housing construction, the cause of action starts from the date of delivery of possession of the tenement to the consumer. Admittedly, possession of the respective tenements was delivered by the opposite party No. 1 to the complainant No. 1 on 25.1.1996, to the complainant No. 2 on 19.10.1995, to the complainant No. 3 on 16.2.1996, to the complainant No. 4 on 2.1.1996 and to the complainant No. 5 on 17.10.1995. Any complaint under the C.P. Act should have been brought within two years from the above dates. The reliefs prayed for by the complainants at sub-paras (i), (v), (xii), (xiii) and (xv) of para 23 of the complaint all pertain to defects/deficiencies of individual tenements, and the cause of action with regard to these defects/deficiencies arose on the dates when possession of the tenements was delivered to the respective complainants.

5. The complainants have relied upon a pamphlet dated 24.1.1995 purportedly published by the opposite party No. 1 and marked as ‘Exh. A (colly)’. We are unable to accept the genuineness of this pamphlet as it bears no signature of the opposite party No. 1 and has been disowned by the opposite party No. 1 as fabricated. We are not inclined to consider the reliefs prayed by the complainants based on the amenities promised in the said pamphlet at sub-paras (ii), (iii), (iv), (vi), (viii), (x) and (xi) of para 23 of the complaint.

6. Coming to the issue of provision of 'large playground' mentioned in the brochure relied by the complainants at `Exh. A (colly)’, this relief is also barred by limitation. Amenities advertised in a brochure have to be provided by the Developer at the time of delivery of possession of the tenement to the purchaser and the consumers cause of action also arises on the date of possession. This Commission, in Henry A. D’Souza v. Mac Enterprises, Complaint No. 14/1998. While dealing with the question, held that all amenities and features advertised by the Builder in the brochure have to be provided to each and every flat owner at the time of delivery of possession.

7. The only relief that survives is that prayed at sub-para (xiv) of para 23 regarding direction to the opposite party No. 1 to refund the deposits made by the complainants and other occupants of blocks ‘G’ and ‘H’ towards outgoing, in favour of the opposite party No. 2. The opposite party No. 1, in their written version, have claimed that almost the entire amount collected by them had been utilized for maintenance of the building, sweepers, security, PWD water tankers, etc., and the balance has been paid to the opposite party No. 2. Opposite party No. 1 has neither produced nor relied upon any account statements or receipts showing payment to opposite party No. 2 to substantiate their claim. It appears that the opposite party No. 1 were to look after the maintenance of the building until the formation of the Society. However, there is no mention of this issue in the complainants letter dated 2.2.1998 to the opposite party No. 1. Since the amount involved is about Rs. 1.90 lakhs, it does not come within the jurisdiction of this Commission to be entertained. The complainants shall, however, be at liberty to agitate this issue before the appropriate Forum within 30 days, if so advised.

8. It has been laid down that any application for condonation of delay must be supported by sufficient cause. Sufficient cause must be a cause which is beyond the control of the party invoking the section. A cause for delay which the party could have avoided by exercise of due care and attention cannot be a sufficient cause. In the present case, the complainants have put forth the reason of advice given by their Advocate as the cause for the delay. We are unable to accept this as sufficient cause for condonation. I

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n any case, ignorance of the law, either on the part of the party or his Advocate, is no excuse for seeking condonation of delay. In this view of the matter, we opine, in the facts and circumstances of the case, that the present complaint is hopelessly barred by law of limitation, and the complainants have not shown sufficient cause for delay in filing of the complaint. Hence, we pass the following order : (a) Application for condonation of delay is dismissed. (b) Complaint is dismissed. (c) No costs. Complaint dismissed.
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