Arvind Pundlik Dhamne vs Raghuvir Wamnrao Joshi

THIS revision petition has been filed by the petitioner against the order dated 19.08.2013 passed by the Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench at Aurangabad (in short, ''the State Commission '') in Appeal No. 1250 of 2008 - Arvind Vs. Ravhuvir by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

BRIEF facts of the case are that complainant/respondent purchased two plots nos. 6 & 7 measuring 341 sq. ft. and 345 sq. ft., respectively on 4.7.1985 from OP/petitioner @ Rs.2/ - per sq. ft. Complainant paid Rs. 8,000/ - on that day and on 21.1.1986, complainant paid Rs.1,000/ - for each plot. OP failed to give registered sale deed; so, complainant filed Consumer Complaint No. 160/2003 for directions to the OP to give sale deed executed in his favour. District Forum by the order dated 31.5.2005, disposed of the complaint, as parties remained absent with liberty to the complainant to file fresh complaint. Complainant filed fresh complaint for direction to execute sale deed. OP resisted complaint and denied that he agreed to sell two plots to the complainant and also denied receipt of amount. It was further submitted that as earlier complaint was dismissed, second complaint was not maintainable. It was further submitted that complaint was barred by limitation and complainant did not fall within the purview of consumer and matter could have been tried before the Civil Court and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to execute sale deed of the plots in favour of complainant and further awarded Rs.100/ - per day as penal charges and further awarded Rs.25,000/ - as compensation and Rs.3,000/ - as litigation cost. Appeal filed by the OP was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed. Heard learned Counsel for the parties finally at admission stage and perused record.

LEARNED Counsel for the petitioner submitted that complaint was not maintainable for specific performance of the contract and; even though, complaint was hopelessly barred by limitation, learned District forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

PERUSAL of record clearly reveals that part consideration for purchase of plots was given on 4.7.1985 and 21.1.1986, but complainant filed first complaint in 2003 and second complaint in 2005 meaning thereby, complaints were filed almost after 17 years and 19 years. At the time of contract for purchase of plots, Consumer Protection Act was not in force and in such circumstances; complaint was not maintainable under Consumer Protection Act. Not only this, as complaints were filed after 17 years and 19 years without any application for condonation of delay under Section 24 -A of the Consumer Protection Act, the complaints were not entertainable by District Forum and learned State Commission committed error in dismissing appeal. Learned Counsel for the petitioner submitted that as contract was purely for sale of plots, only suit for specific purpose in the Civil Court could have been filed. In support of his contention, he has placed reliance on judgment of the Apex Court in Civil Appeal No. 331 of 2007 - Ganeshlal Vs. Shyam decided on 26.9.2013 in which it was held that where there is a sale of plot of land simpliciter, complaint is not covered under Consumer Protection Act. Learned Counsel for respondent could not bring any citation in support of his contention that complaint for sale simpliciter of plots was maintainable before Consumer Forum that too in respect of the contract which was entertained before coming into force of Consumer Protection Act. This Commission in R.P. No. 1728/2010 - VasantDigamber Joshi Vs. Suryakalabai decided on 26.11.2010 in which while following judgment of this Commission referred in OP No. 12 of 1991 - E. Aboo & Anr. Vs. Tata Engineering & Locomotive Co. Ltd. & Ors. decided on 12.09.1991 observed that Consumer Protection Act does not have retrospective effect and it was further observed that as the cause of action had arisen in the year 1979 to 1981, and the Consumer Protection Act came into force in the year 1986, Consumer Protection Act was not applicable and complaint was also barred by limitation.

IN the light of aforesaid discussion, it becomes clear that both the complaints were time barred and complaint was not maintainable before the Consumer Protection Act for sale of land simpliciter, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision Petition is to be allowed.

CONSEQUENTLY , Revision Petition filed by the petitioner is allowed and impugned order dated 19.8.2013 passed by learned State Commission in Appeal No. 1250/08 - Arvind Vs. Raghuvir and order of District Forum dated 28.7.2008 passed in Complaint No. 180/2007 - Raghuvir Wamnrao Joshi Vs. Arvind Dhamne is set aside and Complaint stands dismissed with liberty to the complainant to have recourse to the Civil Court for redressal of his grievance.