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Southern Apartment Owners Association West Bengal & Another v/s Housing Consultancy Pvt. Ltd.

    First Appeal No. 91 of 2015

    Decided On, 19 February 2016

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. K.S. CHAUDHARI
    By, PRESIDING MEMBER

    For the Appellants: Avijit Bhattacharjee, Ajay Ghosh, Upma Shrivastava, Advocates For the Respondents: Surajit Gangopadhyay, Advocate.



Judgment Text

1. This appeal has been filed by the appellant against the order dated 14.08.2014 passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (in short, ‘the State Commission’) inSC Case No. CC/239/2014, Southern Apartment Owners Association v. Housing Consultancy Pvt. Ltd.by which, complaint was not admitted for want of pecuniary jurisdiction.

2. Brief facts of the case are that complainant/appellant Association is comprising of members of flat owners of Southern Apartment, who purchased flats from OP/respondent. Complainant filed complaint regarding deficiency in the flats and prayed as under:

'a) an order for recasting of damaged roof & through repairs of vertical wall of entire Southern Apartment, in default to pay the complainants amounting to Rs.25 lakhs to the complainants without further delay.

b) an order against the Opposite party directing them to insure the whole apartment for five years with any Nationalized Insurance Company for Flats, provide Fire Licence and to set up Buffer under the Generator and to supply the Lift Load Test Certificate, in default a direction be given upon the opposite party to pay a sum of Rs.5 lakhs to the complainant.

c) an order against the opposite parties directing them to provide ⅓rd share of Community Hall and also to provide free egress and ingress through common passage and also be directed to set up an Apex Committee in default to pay Rs.15 lakhs to the complainants.

d) an order against the opposite party directing them to complete the proceedings of Registration of Association for Flat Owner before the authority concerned Govt. of West Bengal in default to pay Rs.20,000/- to the complainants.

e) an order against the opposite party directing them to pay sum of Rs.50,000/- towards cost of litigation'.

Learned State Commission observed that if cost of value of flats and amount of compensation in relief clause is taken together, it would exceed Rs.1 crore beyond jurisdiction of learned State Commission; hence, complaint was not maintainable against which, this appeal has been filed along with application for condonation of delay.

3. Heard learned Counsel for the parties finally at admission stage and perused record.

4. As far condonation of delay is concerned, as per application, there is delay of 142 days in filing appeal whereas, as per office report, there is delay of only 8 days in filing appeal. Respondent has also filed reply to application for condonation of delay. Appellant has filed replica to the application for condonation of delay. Perusal of application for condonation of delay reveals that certified copy of impugned order was applied on 23.12.2014 which was delivered on 26.12.2014 and appeal has been filed on 2.2.2015. office has wrongly calculated period of delay in filing appeal and in fact, there is delay of 142 days in filing appeal, as appellant moved application for certified copy after 4 months 10 days and received certified copy within 3 days; so, only period of obtaining certified copy is to be excluded from period allowed for filing appeal whereas, office has calculated period of delay from the receipt of certified copy which is apparently wrong. No doubt, there is delay of 142 days in filing appeal, but looking to the legal question involved, I deem it appropriate to condone delay of 142 days in filing appeal subject to payment of Rs.5,000/- as cost with Consumer Legal Aid Account of this Commission in the light of latest judgments of Hon'ble Apex Court inCivil Appeal Nos. 10120-10121 of 2014, Jeevanti Devi v. Commercial Motors & AnrCivil Appeal No. 10289 of 2014, A.T.S. Govindarajane v. Chief Manager, State Bank of IndiaandCivil Appeal No. 5071 of 2014, Taipen Traders Ltd. & Anr. v. M/s. Bhawani Cold Storage & Orsby which delay of 135 days, 149 days and 218 days, respectively in filing revision petition was condoned.

5. Learned Counsel for the appellant submitted that learned State Commission has committed error in adding value of flats with relief(s) claimed in the complaint whereas, value of flats has no concern with the relief(s) claimed in the complaint; hence, appeal be allowed and impugned order be set aside and matter may be remanded back to the learned State Commission for deciding complaint on merits. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, appeal be dismissed.

6. Perusal of complaint reveals that complainant has claimed relief(s) only regarding some deficiencies in the flats and some general deficiencies regarding not providing licence egress and ingress through common passage and registration of Association, etc. and has claimed total relief in the alternate to the tune of Rs.45,70,000/. As relief has been claimed only regarding deficiency in service, value of flats cannot be added in the reliefs claimed and learned State commission has committed error in observing that value of flats is to be added in the amount of compensation claimed in the complaint. Value of compensation claimed in the alternate regarding deficiency in service, learned State Commission has pecuniary jurisdiction to entertain the complaint and impugned order is liable to set aside and matter is to be remanded back to the learned State Commission to admit complaint and decide it on merits.

7. Consequently, appeal filed by the appellant

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is allowed and impugned orderdated 14.08.2014 passed by the learned State Commission in SC Case No. CC/239/2014, Southern Apartment Owners Association v. Housing Consultancy Pvt. Ltd.is set aside and matter is remanded back to the learned State Commission to admit complaint and proceed with in accordance with law subject to depositing Rs.5,000/- with Consumer Legal Aid Account of this Commission within 4 weeks’, failing which, appeal shall stand dismissed as barred by limitation. 8. Parties are directed to appear before the learned State Commission on 31.3.2016. Appeal allowed.
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