Shanti Devi Rathi vs Vijay Nagar Corporation

SMT .Shanti Devi Rathi has filed this Consumer Complaint against (M/s. Vijay Nagar Corporation (OP No.1) and Ms. Amina Bi Syed Fayaz Ali (OP - No.2). Para 4 of the Complaint clarifies that no relief has been claimed against OP -2, who is impleaded as a pro -forma party. All relief is sought against OP -1, who was the promoter, developer and seller of apartments in what is referred to as ''Yogi Tower Society''. The Complaint petition also carries a detailed factual backdrop to it.

THE Complainant is owner of a flat in Yogi Tower Society, Borivali West, Mumbai. The flat is situated in a layout for which the building plan was approved on 14.8.1982 and the occupancy certificate was issued by the Municipal Corporation of Greater Mumbai on 20.7.1999. The flat in question had been sold by OP -1 to OP -2 on 11.2.1984 and was later sold by OP -2 to the husband of the Complainant on 23.12.1992. Consequent upon death of her husband, the Complainant became the owner of this flat (No.1008 in Yogi Tower Society) in 2000.

IN the agreement for the first sale of the above flat, the plot area of the Yogi Tower Society was allegedly declared as 4700 sq.yd, while as per the approved building plan it was 10,753.50 sq.yd. On 10.8.2013, Complainant''s son wrote to OP -1 to find out how the plot size was mentioned as 4700 sq. yd. in the agreement of sale with OP -2 had become 10,753.50 sq. yd in the approved plan. He also asked to be informed what was the exact FSI consumed in constructions of the building belonging to Yogi Tower Society and whether any floating FSI had been loaded on to it. In reply, OP -1 informed that "the entire Yogi Nagar project has been developed as a layout project since the very beginning. The said property is not subdivided and therefore the FSI available in respect of the entire layout property was/has been used in the construction of the various buildings, including your building". In the above background, the case of the Complainant as clearly brought out in paras 10, 15 and 20 of the consumer complaint is: " 10. That because of the over exploitation of the plot no.57/58 by O.P. NO. -1, the land belonging to Yogi Tower Society cannot be subdivided and alienated from the remaining scheme and conveyance of said land cannot be accorded in favour of Yogi Tower Society because the development on this piece of land is beyond permissible limit even under the Development Plan guidelines of 1991 -2011 and also under the proposed 2014 -2033 Development Plan because of the FSI limitation permitted as on date." 15. That because of the over exploitation on plot no.57/58 belonging to Yogi Tower Society by O.P. No. -1 and because of unavailability of conveyance of property, it has become impossible to redevelop Yogi Tower Society which has resulted in huge financial loss for the purchasers of the said flat and particularly the Complainant in the present matter as the Complainant has been made to suffer for the losses for which she cannot be held responsible by any stretch of imagination. 20. That the Complainant''s family size has increased with marriage of her son, daughters and grandchildren. Meanwhile, because redevelopment is impossible, the Complainant is compelled to sell her existing flat at Yogi Tower Society and buy a new larger property. The compensation demanded by the Complainant includes all the cost which has to be incurred for selling present flat 1008 and buying a new flat."

PERUSAL of subsequent paras in the Consumer Complaint also brings out that the subject of redevelopment of the Yogi Tower Society also came up for discussion in the Annual General Meeting of 2013. It also refers to initial discussion between OP -1 and another housing society in the same layout for redevelopment. The Prayer in the Complaint is for award of Rs.266.87 Lakh as damages for over exploitation of FAR and Rs.219.20 Lakh on account of overpricing. Clearly, these claims are base on his perception of the eventual appreciation of flats in the other society, in the event of redevelopment. This would explain the following claim in para 35 of the Complaint, as filed in this Commission: - "That the cause of action for filing the present complaint case arose in favour of the Complainant and against the O.P. No. -1 on 21st October 2013 when the O.P. No.1 (Annexure F) in their reply admitted that "property is not subdivided and therefore the FSI available in respect of the entire layout property was/has been used in the construction of the various building, including your building. On said date, Complainant for the first time became aware of the overloaded FSI. Therefore, present complaint is well within the limitation period prescribed under Section 24A of the Consumer Protection Act, 1986. In the present case, the right of the Complainant to have redevelopment of her flat and inter -alia her building got first damaged when the O.P. No.1 in their reply dated 21st October, 2013 accepted that "FSI available in respect of the entire layout property was/ has been used in the construction of the various buildings, including your building."

IN view of the above claim, we first need to look at the import of the term ''cause of action.'' What constitute a cause of action, is a question that came up for detailed consideration in Kandimalla Raghavaiah and Co. Vs. National Insurance Co. Ltd. and Anr., 2009 3 CPJ 75 . Hon''ble Supreme Court has explained it in the following terms: "13. The term "cause of action" is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of wide import. It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described as "bundle of facts", which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, "cause of action" means the cause of action for which the suit is brought. "Cause of action" is cause of action which gives occasion for and forms the foundation of the suit see: Sidramappa v. Rajashettly & Ors., 1970 1 SCC 186. In the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out."

IN the case before us, the cause of action as perceived in the Complaint would have arisen with alleged over utilisation of FSI. Admittedly, the Occupancy Certificate for the project was issued by the competent authority on 20.7.1999. As construction (which would include utilisation of FSI) must precede occupancy, the ''cause of action'' would have arisen prior to the date of issue of the occupancy certificate. Averments in para 6 of the Complaint also bring that out. The complainant acquired title over the flat in 2000, consequent upon death of her husband. But, the Complaint has been filed on 12.3.2014. Thus, the complaint is delayed by over eleven years. There is no explanation of this delay. Instead, the claim put forth in para 35 of the Complaint, as cited above, is that the cause of action itself arose on 12.10.2013 with the reply received from OP -1.

THE claim of 12.10.2013 being the relevant date, as seen from the material placed on record by the Complainant, is linked to the application under Right to Information Act (RTI) for a copy of the approved building plan, which was made to the competent authority on 4.9.2013. Thereafter on 10.8.2013 a letter was addressed on behalf of Complainant to OP -1 seeking details of the FSI consumed in these constructions. The necessary information was supplied by OP -1 in its letter of 21.10.2013. It is therefore claimed that the cause of action arose on 21.10.2013 and that the Complaint filed on 12.3.2014 is within the permissible period of two years.

LEARNED counsel for the Complainant would argue that in this case the cause of action would arise when the complainant ''discovered'' that permissible FAR had been utilised to the detriment of the interest of the Complainant and others in the Yogi Tower Society. The question is whether the ''Discovery Rule'' would be applicable to the facts of the case before us. In Dr V N Srikhande Vs. Anita Sena Fernandes, 2011 1 SCC 53, this Rule has been examined in depth by Hon''ble Supreme Court of India. The facts in very brief, were that the respondent had complaint of abdominal pain. Investigations revealed that she had stones in her gall bladder. On 26.11.1993, the appellant performed cholecystectomy on her and she was discharge on 30.11.1993.

FOR the next about 9 years the respondent neither contacted the appellant nor consulted any other doctor, though she had continued to have abdominal pain, off and on. The CT scan done on 23.9.2002, revealed a well defined rounded mass in her abdomen. On 25.10.2002 she was operated upon the mass was excised. Histopathology report of 8.11.2002 revealed that it comprised several pieces of gauze, aggregating to 5.5 cm x 5.2 cm. Respondent filed a consumer complaint against the appellant for negligence and claimed compensation of Rs.50 lakhs.

THE State Commission dismissed the complaint on the ground of limitation. The National Commission held that the cause of action had continued as pain had continued till the surgery of 15.10.2002. Hon''ble Supreme Court observed that the Discovery Rule, on which counsel for the respondent had relied, was evolved by courts in the United States in cases involving medical negligence. In the instant case, Supreme Court held that the long and unexplained silence on the part of the respondent for almost nine years, militated against the bonafides of her claim. Therefore, the appeal was allowed and the complaint was dismissed. While doing so, Hon''ble Apex Court observed "The policy of insulating defendants from the burden of defending stale claims brought by a party who, with reasonable diligence, could have instituted the action more expeditiously is not a convincing justification for the harsh consequences resulting from applying the same concept of accrual in foreign object cases as is applied in medical treatment cases. A clamp, though immersed within the patient''s body and undiscovered for a long period of time, retains its identity so that a defendant''s ability to defend a ''stale'' claim is not unduly impaired." Therefore, where a foreign object has negligently been left in the patient''s body, the Statute of Limitation will not begin to run until the patient could have reasonably discovered the malpractice."

THUS in the case before us, the question to ask is whether the Complainant, Shanti Devi Rathi could have, with reasonable diligence, filed the Complaint earlier than 12.3.2014. In our view, the answer is clearly in the affirmative. The building plan itself had been approved by the authority on 14.8.1982. The Complainant could have applied for a copy of the same, at any time after acquiring title to her flat in the year 2000. In such a situation, the cause of action cannot wait for choice of a date for correspondence in the hands of the Complainant. For the same reason, the Discovery Rule would not apply to the facts of this case. We therefore hold that the consumer complaint is filed long after the permissible period of two years, from the date on which the cause of action had arisen.

THE provision of law, dealing with the resultant situation is contained in Section 24A of the Consumer protection Act, 1986. It reads Section 24 A Limitation period - The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. (2) Notwithstanding anything contained in sub -section (1), a complaint may be entertained after the period specified in sub -section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period: Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may by, records its reasons for condoning such delay."

THE import of this provision was examined by Hon''ble Supreme Court in State Bank of India v. B. S. Agricultural Industries (I), 2009 1 CPJ 29. This was a case in which the Complaint had been filed with delay of nearly one year. But, the question of limitation had not been considered by any of the Consumer Fora. Therefore, Hon''ble Supreme Court dismissed the Complaint on the ground of limitation with the following observations: - "8. It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ''shall not admit a complaint'' occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside."

THE Complainant has not filed any application explaining this inordinate delay of over eleven years. It is therefore not possible for this Commission to hold that the Complainant had sufficient cause for not filing the Complaint within the period from 2000 to 2013. Consequently, the Consumer Complaint is dismissed on account of delay, in terms of the provision in Section 24 A of the Consumer Protection Act, 1986.