Case: BHARATI BHATTACHARJEE Vs. QUAZI MD. MAKSUDUZZAMAN &amp; ORS

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 be, records its reasons for condoning such delay. 13.3. This Court, in the case of V.N. Shrikhande v. Anita Sena Fernandes:(2011) 1 SCC 53 has pointed out that the term cause of action has not been defined in the Act of 1986 and the same has to be interpreted keeping in view the context in which it has been used in Section 24A(1) and the object of the legislation. In that case, relating to the question of medical negligence, this Court held that no strait-jacket formula could be applied for determining as to when the cause of action had accrued to the consumer and each case has to be decided on its own facts. Applying the principles with necessary modulations in relation to the subject-matter before us, in the case of the dispute relating to the agreement for sale, where the appellant is standing in the capacity of a seller qua the complainants who stand in the capacity of consumer, the term consumer dispute shall have to be understood in terms of the definition provided by Section 2(e) of Act of 1986 that reads as under: - 2(e)consumer dispute means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint; 13.4. In the case at hand, relating to Complaint Case No. 111 of 2013, the relevant facts had been pleaded by the complainant in the following terms: - 11. That thereafter the Complainant made several representations to the Opposite Party and asked her to perform her duties and obligations as stipulated in the said Agreement however the Opposite Parties always gave assurance that the flat will be completed by shortly but neither the same was completed nor the Deed of Conveyance in respect of the said flat was executed in his favour and the Complainant had also sent a Registered Letter with A/D dated 9th November, 2012 requesting the Opposite Party to execute the Deed of Conveyance in respect of the flat in their favour. 13.5. In the matters relating to the sale of immovable property where the appellant had received a substantial part of sale consideration and had failed to perform her duties and obligations, even for the relief of specific performance, the period of limitation would have begun, if the complainants were to file a suit for specific performance of contract, only from the period of expiry of notice dated 09.11.2012, when they would have had the notice that the performance was being refused. In any case, so far the consumer dispute is concerned, when the appellant failed to execute the Deed of Conveyance despite receiving notice from the complainant, it could safely be taken that the cause of action accrued for the purpose of the complaint only after the expiry of period of notice dated 09.11.2012. Thus, the complaints as filed on 21.03.2013 had been well within limitation. 14. As regards other submissions about the proof of readiness and willingness for performing the part of contract by the complainants, the averments taken by the parties and totality of the facts and circumstances of the case leave nothing to doubt that nothing substantial was to be performed on the part of the complainants. Rather, the essential part of performance was only the burden of the appellant which the appellant failed to discharge. Noteworthy it is that as against the agreements in question, the appellant had received major part of the sale consideration inasmuch as in Complaint Case No. 111 of 2013, the appellant had received a sum of Rs. 5,79,000/- as against the sale consideration of Rs. 9,00,000/-; whereas in Complaint Case No. 112 of 2013, the appellant had received a sum of Rs. 4,92,000/- against the sale consideration of Rs. 7,00,000/-. The payments made to the appellant included substantial amount of loan taken by the respective complainants. It has been pointed out that after obtaining such loan, the complainants had been regularly making payment of EMIs to the lender institutions. There does not appear any personal bar operating against the complainants even in terms of the Specific Relief Act, 1963. 15. The submission as regards drawing adverse inference remains totally baseless because it has not been shown if the complainants withheld any material evidence that was in their power or possession. The vague question put in the questionnaire to the effect as to whether the complainant would call for the record from his office and Bank and its answer in the affirmative, do not lead to any adverse inference because, the record in question is not shown to be in power or possession of the complainant. Rather, we have reservations, if such a question was at all permissible by way of a questionnaire on the principles of Order XI of the Code of Civil Procedure, 1908. Be that as it may, no case of drawing any adverse inference is made out. 16. The other submission in the alternative for allowing interest starting from 90 days from the date of agreement is also of no substance. Contrary to this suggestion, when we notice that the appellant had received a substantial part of sale consideration in both the cases and had yet not executed the requisite deed and had not carried out performance of other parts of the contract due on her part, even the interest as allowed by the National Commission appears to be excessive. Having said so, we would leave the matter at that because the complainants have not questioned that part of the order of the National Commission allowing interest to the appellant at the rate of 10% per annum from the date of filing of complaint.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]10. Having given thoughtful consideration to the rival submissions and having examined the material placed on record with reference to the law applicable, we are satisfied that these appeals remain totally bereft of substance and deserve to be dismissed; and the appellant, for having dragged the matters with pretentious propositions, deserves to be saddled with costs.11. The suggestion on behalf of the appellant about existence of two agreements is required to be rejected in relation to Complaint Case No. 111 of 2013 altogether for want of any such second agreement on record. The sale price shown by the complainant in the Bank for the purpose of loan or in the Government department does not lead to any inference about existence of any other agreement.11.1. Moreover, when we look at the agreement between the parties disclosing total sale consideration of Rs. 9,00,000/-, the material terms are found in the following form and expression: -3. That the consideration price shall be payable by the Purchasers to the Vendor as consideration of the said complete flat be Rs.9,00,000/- (Rupees Nine lacs) only and the mode of such payment is to be as follows:-a) At the time of booking/agreement Rs.50,000/- (Rupees Fifty thousand) only.b) At the time of Rs.6,50,000/- (Rupees Six Lakh fifty thousand) only will be payable by the Purchasers to the Vendor at the time of Registration i.e. within 90 (Ninety) days from the date of execution of this agreement.c) Rs.2,00,000/- (Rupees two lacs) only will be payable within 60 months (sic) from the date of registration of the conveyance.11.2. Obviously, the third component of the sale consideration of Rs. 2,00,000/- was payable only after registration of the Deed of Conveyance. Hence, while applying for loan, the complainant could have only stated the consideration payable for registration of the sale consideration until then. In any case, the difference in sale consideration, as stated before the Bank vis-à-vis that stated in agreement does not lead to even a remote inference that there were two separate agreements.12. As regards Complaint Case No. 112 of 2013, though there are shown to be existing two documents of the same date but, they do not appear to be separate agreements for different properties or for different parts of the same property or for segregating the total amount of sale consideration. They could only be read as one being a copy or draft of the other. In any case, it would be rather preposterous to assume that because of the alleged two documents of the same date, the sale consideration would be arrived at by adding up the consideration amount stated therein. The State Commission seems to have approached the entire case from an altogether wrong angle and has acted illegally in accepting the baseless propositions of the appellant. Thus, we are satisfied that the National Commission has rightly disapproved the orders so passed by the State Commission.13. The other submissions as made for the first time before this Court also do not make out any case for interference.13.1. There is no, and there cannot be any, quarrel with the proposition stated in the case of State Bank of India (supra) that if the complaint is barred by time and yet the Consumer Forum decides the same on merits, it would be a case of illegality on the part of the Forum. However, the question is as to whether the bar of limitation was at all operating in relation to the present complainants? In our view, the answer is in the negative.13.3. This Court, in the case of V.N. Shrikhande v. Anita Sena Fernandes:(2011) 1 SCC 53  has pointed out that the term cause of action has not been defined in the Act of 1986 and the same has to be interpreted keeping in view the context in which it has been used in Section 24A(1) and the object of the legislation. In that case, relating to the question of medical negligence, this Court held that no strait-jacket formula could be applied for determining as to when the cause of action had accrued to the consumer and each case has to be decided on its own facts. Applying the principles with necessary modulations in relation to the subject-matter before us, in the case of the dispute relating to the agreement for sale, where the appellant is standing in the capacity of a seller qua the complainants who stand in the capacity of consumer, the term consumer dispute shall have to be understood in terms of the definition provided by Section 2(e) of Act of 1986 that reads as under: -2(e)consumer dispute means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint;13.5. In the matters relating to the sale of immovable property where the appellant had received a substantial part of sale consideration and had failed to perform her duties and obligations, even for the relief of specific performance, the period of limitation would have begun, if the complainants were to file a suit for specific performance of contract, only from the period of expiry of notice dated 09.11.2012, when they would have had the notice that the performance was being refused. In any case, so far the consumer dispute is concerned, when the appellant failed to execute the Deed of Conveyance despite receiving notice from the complainant, it could safely be taken that the cause of action accrued for the purpose of the complaint only after the expiry of period of notice dated 09.11.2012. Thus, the complaints as filed on 21.03.2013 had been well within limitation.14. As regards other submissions about the proof of readiness and willingness for performing the part of contract by the complainants, the averments taken by the parties and totality of the facts and circumstances of the case leave nothing to doubt that nothing substantial was to be performed on the part of the complainants. Rather, the essential part of performance was only the burden of the appellant which the appellant failed to discharge. Noteworthy it is that as against the agreements in question, the appellant had received major part of the sale consideration inasmuch as in Complaint Case No. 111 of 2013, the appellant had received a sum of Rs. 5,79,000/- as against the sale consideration of Rs. 9,00,000/-; whereas in Complaint Case No. 112 of 2013, the appellant had received a sum of Rs. 4,92,000/- against the sale consideration of Rs. 7,00,000/-. The payments made to the appellant included substantial amount of loan taken by the respective complainants. It has been pointed out that after obtaining such loan, the complainants had been regularly making payment of EMIs to the lender institutions. There does not appear any personal bar operating against the complainants even in terms of the Specific Relief Act, 1963.15. The submission as regards drawing adverse inference remains totally baseless because it has not been shown if the complainants withheld any material evidence that was in their power or possession. The vague question put in the questionnaire to the effect as to whether the complainant would call for the record from his office and Bank and its answer in the affirmative, do not lead to any adverse inference because, the record in question is not shown to be in power or possession of the complainant. Rather, we have reservations, if such a question was at all permissible by way of a questionnaire on the principles of Order XI of the Code of Civil Procedure, 1908. Be that as it may, no case of drawing any adverse inference is made out.16. The other submission in the alternative for allowing interest starting from 90 days from the date of agreement is also of no substance. Contrary to this suggestion, when we notice that the appellant had received a substantial part of sale consideration in both the cases and had yet not executed the requisite deed and had not carried out performance of other parts of the contract due on her part, even the interest as allowed by the National Commission appears to be excessive. Having said so, we would leave the matter at that because the complainants have not questioned that part of the order of the National Commission allowing interest to the appellant at the rate of 10% per annum from the date of filing of complaint.