Chandigarh

StateCommission

CC/185/2015

Gursharan Jit Singh Rosha - Complainant(s)

Versus

Emaar MGF Land Limited - Opp.Party(s)

Rajnish K. Jindal, Adv.

18 Jul 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Miscellaneous Application       in Complaint case No.	:	185 of 2015
Date of Institution	:	24.08.2015
Date of Decision	:	18.07.2016

 

1. Gursharan Jit Singh Rosha S/o Late Sh. Pirthi Pal Singh Rosha;

2.      Iqbal Kaur Rosha W/o Gursharan Jit Singh Rosha;

Both residents of #2414, Phase-X, Mohali

 

…… Applicants/Complainants

V e r s u s

 

Emaar MGF Land Limited, ECE House, 1st Floor, 28 Kasturba Gandhi Marg,  New Delhi – 110001.

2nd Address :-

Emaar MGF Land Ltd., SCO No.120-122, Sector 17-C, Chandigarh.

              ....Opposite Party

BEFORE:      JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

            MR. DEV RAJ, MEMBER.

            MRS. PADMA PANDEY, MEMBER

 

Argued by:-    Sh.Rajiv Kataria, Advocate for the        applicants/complainants     alongwith Sh.        Gursharan Jit   Singh Rosha, complainant   No.1 in person.

Sh. Ashim Aggarwal, Advocate for the Opposite Party.

 

PER PADMA PANDEY, MEMBER.

              The brief facts of the case are that the complainants booked a Villa, in the project of the Opposite Party in Sector 106 at Mohali Hills and the same was allotted vide allotment letter dated 03.04.2008 (Annexure C-8). An Agreement in respect of the Villa, was also executed between the parties on 12.06.2008 (Annexure C-9).  The Opposite Party assured to hand over possession within a period of 2 years from the date of Agreement. The total sale consideration of the said Villa was Rs.1,55,58,300/-, out of which, the complainants paid an amount of Rs.95,25,065/-. Thereafter, the Opposite Party changed the payment plan from ‘Time Linked’ to ‘Construction Linked’. It was further stated that the complainants made regular payments, due to which, the Opposite Party offered a discount of 5% from the overall cost of the unit. The complainants approached the office of the Opposite Party, in March 2011 and enquired regarding the status of construction and the Opposite Party assured that Villa was almost complete and the same should be allotted to them in June, 2011. Thereafter, the complainants visited the site and was shocked to see that there was no construction and they immediately sent an email to the Opposite Party on 15.04.2011 (Annexure C-15) to know the ground reality followed by a reminder dated 23.04.2011 (Annexure C-16), but it did not respond. It was further stated that the Opposite Party offered an alternate Villa vide its email dated 19.05.2011 (Annexure C-18) without explaining any reason for delay in commencement of construction. It was further stated that no compromise was ever effected between the parties, at any stage, as is evident from email dated 12.08.2012 (Annexure C-19) sent to the Opposite Party  in response to its offer of refund alongwith interest @12% made by the Opposite Party vide email dated 08.08.2012. Ultimately, the complainants served a legal notice dated 13.08.2012 (Annexure C-20), upon the Opposite Party, wherein, the offer of the Opposite Party was reiterated for out of court settlement in terms of allotment of equivalent sized plot (300 Sq. Yards) at old rates but the Opposite Party preferred to refund deposited amount with simple rate of interest @12%, without mentioning any logical reason for non-commencement of work at the site, vide letter dated 04.09.2012 (Annexure C-21). The complainants also filed a complaint against the Opposite Party, before the Chandigarh Police (EOW) on 14.09.2012 (Annexure C-22) but the Police, under the impression that the dispute was of civil/consumer nature, failed to take any action on the same. Another complaint was also filed before the Police Complaint Authority, Chandigarh (PCA), which was disposed of on the basis of similar observation that the complainants could move the Civil Court or Consumer Court for redressal of their grievances (Annexure C-23). It was further stated that the Opposite Party refunded an amount of Rs.1,34,99,976/- inclusive of 12% simple interest, which was contrary to any of the contract provisions nor was agreed upon at any stage. The aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, and also indulgence into unfair trade practice.

2.           It is pertinent to note that during the pendency of the complaint, this Commission passed the following zimini order dated 05.11.2015 :-

“For proper adjudication of this case, we deem it appropriate to ask the Managing Director/Authorised Signatory of Emaar MGF Land Ltd. (Opposite Party) to file an affidavit stating (i) whether in the first layout plan, site allotted to the complainant was carved out in land, which was ownership of the Company (ii) what was the khasra number, in which, original plot was carved out (iii) when the position of the said plot was shifted from one place to another place as per demarcation made and (iv) intimate the date of demarcation and date of starting construction qua other Villas in the project in dispute.

                   Let affidavit be filed before the next date of hearing with advance copy to the complainants.

                   On request, adjourned to 27.11.2015 for arguments.”

3.                Aggrieved against the order, aforesaid, passed by this Commission, the Opposite Party filed First Appeal No.934 of 2015 before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi. As such, this Commission vide order dated 28.01.2016 sine-die vide Consumer Complaint No.185 of 2016 stated that after disposal of the said appeal pending in the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, either of the parties may move an application to get this complaint revived.           

4.           Thereafter, the Hon'ble National Commission disposed of the appeal bearing No.934 of 2015, filed by the Opposite Party, vide order dated 29.02.2016 with a direction to this Commission to decide application for condonation of delay firstly, after giving an opportunity of being heard to the parties.

5.           In view of the aforesaid order passed by the Hon'ble National Commission, the complaint was revived by this Commission vide order dated 04.04.2016 and, according to the order passed by the Hon’ble National Commission, we are deciding firstly application for condonation of delay.

6.           Alongwith the complaint, an application for condonation of delay of 352 days, in filing the same (complaint) was filed by the complainants on 24.08.2015, vide which, it was stated that the complainants earlier filed Consumer Complaint No.106 of 2014 before this Commission on 04.09.2014 and the said complaint was disposed of by this Commission vide order dated 11.09.2014, with a direction to the complainants to present the complaint before the appropriate Fora having the pecuniary jurisdiction to entertain and decide the same, as the claimed amount was more than Rs.1 crore. It was further stated that as per the direction of this Commission, the complainants filed Consumer Complaint No.407 of 2014 before the Hon'ble National Commission on 09.10.2014 for seeking the same relief/compensation as was sought before this Commission and the said complaint was rejected by the Hon'ble National Commission, vide order dated 13.08.2015 on the ground of pecuniary jurisdiction to entertain the complaint, the compensation being of value less than Rs.1 crore, while affording the liberty to the complainants to approach the State Commission by way of a fresh complaint for seeking only the monitory relief.  It was further stated  that after receipt of the orders from this Commission on 23.09.2014, the complainants took only 16 days to file a complaint before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi. It was further stated that the complainants got a certified copy of the order of the Hon'ble National Commission on 22.08.2014. It was further stated that the cause of action to file the complaint arose in favour of the complainants on 12.06.2008 i.e. the date of signing of Agreement between the parties and then on 13.08.2012, when legal notice was served upon the Opposite Party and then on 08.09.2012 when the deposited amount was returned to the complainants through letter dated 04.09.2012, without payment of any compensation, then on 23.09.2014 when the certified copy of the orders passed by this Commission was made available to the complainants and then on 22.08.2015 when the complainants got the certified copy of the orders of the Hon'ble National Commission. It was further stated that the delay when counted from the date when the complainants got their money back i.e. on 08.09.2012 to the date of filing the present application before this Commission, tantamounts to 352 days. It was further stated that the said delay of 352 days, which occurred inadvertently, and was neither intentional nor willful and was due to the reasons explained above.

7.           Reply to the application for condonation of delay was filed by the non-applicant/Opposite Party, in which, it was stated that the complainants have failed to disclose the material fact that they had duly encashed the cheque No.350211 and 350212 both dated 24.08.2012 for Rs.67,49,988 each, totaling a sum of Rs.1,34,99,976/-, which were sent to the complainants vide letter/reply dated 04.09.2012 (Annexure C-21), which as per the complainant’s own version was received by them on 08.09.2012 and no protest was lodged in this regard by the complainants. It was further stated that the fact regarding encashing of cheques was confirmed to the Opposite Party by Hongkong Shanghai Banking Corporation Limited by letter dated 28.10.2014. It was further stated that the complainants unconditionally accepted refund of amount towards the villa, therefore, the Agreement dated 12.06.2008 (Annexure C-9) stood terminated and there is no privity of contract between the parties w.e.f. September, 2012. It was further stated that the complainants unconditionally accepted refund of amount together with interest @12% p.a. on 04.09.2012 and, thus, ceased to be consumers and they have no right to approach this Commission. It was further stated that after encashing the cheques , which were refunded without protest, the complainants filed a criminal case with sole intention to harass the Opposite Party. It was further stated that once the complainants had rejected offer of relocation and, thereafter, accepted refund, there was no cause for them to file a complaint seeking compensation plus allotment of a plot. It was further stated that the time spent by the complainants pursuing exaggerated and wrongful claims before Forum not having jurisdiction was willful and intentional and the period so spent before a wrong Forum claiming exaggerated reliefs cannot be excluded for purposes of limitation.

8.         We have heard the Counsel for the parties, on the application for condonation of delay, and have gone through the record of the case, carefully. 

9.           The core question, that falls for consideration, is, as to whether, there is sufficient cause for condonation of delay of 352 days, as per the applicants/complainants, in filing the complaint or not. It is, no doubt, true that earlier the complainants filed Consumer Complaint No.106 of 2014 on 04.09.2014 before this Commission, which was decided by this Commission  vide   order   dated   11.09.2014,    which reads thus :-

“For the reasons recorded above, the complaint, in original, is ordered to be returned to the complainants, alongwith the documents, attached therewith, after retaining the attested to be true photocopies of the same, for presentation, before the appropriate Fora, having the pecuniary Jurisdiction, to entertain and decide the same.”

10.         As per the aforesaid order passed by this Commission, the complainants filed Consumer Complaint No.407 of 2014 before the Hon’ble National Commission, which was decided vide order dated 13.08.2015, which reads thus :-

   “The complainants had booked a villa with the opposite party in Mohali, and a Buyers Agreement dated 12.6.2008 was executed between the parties.  The villa allotted to the complainants, however, was not constructed by the opposite party.  Eventually the amount, which the complainants had paid to the opposite party, was refunded by way of two cheques in September, 2012, along with interest @ 12% per annum.  The aforesaid cheques were encashed by the complainants.  After encashing the said cheques, they are before this Commission, seeking the following reliefs:

1. Payment of difference of interest calculated @ 18% per annum compounded on quarterly basis instead of 12% interest upto the period 04.09.2012, which works out to be Rs.55,45,394/- as per details appended at Annexure –(C-17)
2. Payment of 6% penal interest on Rs.32,05,580/- for the period 25.11.2009 to 04.09.2012 (that is for a period of two years 10 months) on the withheld amount in excess of Rs.63,19,485/- retained illegally by the Ops on account of changes in the payment plan form ‘Time linked Plan’ to ‘Construction Linked Plan’ which works out to around Rs.5,89,216/- as per details appended at Annexure-(C-18)
3. One equivalent sized plot (300 sq. yards) on the old rates of Rs.11,000/- per sq. yard prevalent at that time in 2008 to enable the complainants to construct a house of their own, suiting their stature.
4. Compensation amounting to Rs.13,50,000/- worked out @ Rs.50,000/- per month on partly on account of losses suffered by the complainant in terms of monthly rentals borne by the complainant for hiring rental accommodation after his retirement, payable from the date of committed possession that is June 11,2010 (Two years form the date of agreement i.e. June 12, 2008) till the date of refund of the deposit made by the Ops in September, 2012 and partly on account of revenue losses suffered in the process because of delay in the completion of the project/handing over of possession.  Thus the compensation payable @ Rs.50,000/- per month for two years and three months works out to Rs.13,50,000/-.
5. Compensation of Rs.20,00,000/- may be allowed on account of the trauma suffered by the complainants through physical and mental sufferings, wastage of valuable time and opportunity costs, substantial escalation in building costs that have gone up by 66% since 2007 and also as a penalty to the opposite party for fraudulently extracting the money and then retaining it illegally for a period of four and a half years without the consent and knowledge of the complainants and without disclosing the facts on ground to the complainants.
6. Rs.2,00,000/- as litigation costs.

 2.      The complaint has been resisted by the opposite party, inter-alia on the ground that this Commission lacks pecuniary jurisdiction to entertain, the complaint, the pecuniary value being less than Rs. one crore.  We find that, in addition to the pecuniary compensation aggregating at Rs.96,84,610/-, inclusive of Rs.2,00,000/- as cost of litigation, which in fact, cannot be included as a part of compensation,  the complainants have sought a plot measuring 300 sq. yards @ Rs.11,000/- per  sq. yard, which according to them was the price prevailing in 2008 in order to enable them to construct a house of their choice.  In our opinion, having accepted the refund of the amount paid by them, the complainants cannot seek allotment of an alternative plot and even if all their allegations are taken to be correct, they are at best entitled to a monetary compensation. Since the monetary compensation claimed by them is less than Rupees one crore, this Commission lacks pecuniary jurisdiction to entertain the complaint.  We therefore, reject this complaint with liberty to the complainants to approach the State Commission by way of a fresh complaint, seeking only the monetary relief.  If a fresh complaint is filed before the State Commission, it shall be open to the opposite party to take all such  plea as are available to them in law, including that the complaint is barred by limitation.”

11.              According to the complainants, after receipt of the order of this Commission on 23.09.2014, they took only 16 days to file a complaint before the Hon’ble National Commission, which was filed on 09.10.2014. The complainants got the copy of the order passed by the Hon’ble National Commission on 22.08.2015.

12.         It is true that the complainants booked the villa in the project of the Opposite Party and the total consideration of the said Villa was Rs.1,55,58,300/-, out of which, they paid an amount of Rs.95,25,065/-. When the Opposite Party failed to give possession of the said Villa, it offered an alternate Villa vide its email dated 19.05.2011. It is also true that before filing the earlier Consumer Complaint No.106 of 2014 on 04.09.2014, the Opposite Party refunded the total amount of Rs.1,34,99,976/-, which is inclusive of 12% simple interest on 04.09.2012, which was received by the complainants on 08.09.2012, vide two cheques, both dated 24.08.2012, for Rs.67,49,988/- each, totaling a sum of Rs.1,34,99,976/-. This fact was confirmed to the Opposite Party by the Hongkong Shanghai Banking Corporation Limited by letter dated 28.10.2014 (Exhibit OP/2 colly.).   So, it is clearly proved that an amount of Rs.39,74,911/- i.e. (Rs.1,34,99,976/- minus Rs.95,25,065/- (deposited amount)) more had been paid by the Opposite Party to the complainants.  However, the complainants want more interest, compensation alongwith other reliefs from the Opposite Party, to which, we are of the view that the same are not genuine, at all, because the complainants had already received their deposited amount alongwith more than Rs.39 lacs from the Opposite Party, before filing the earlier complaint, in this Commission. The said amount was duly encashed by the complainants unconditionally on 12.09.2012 and 11.09.2012 respectively. Even the Opposite Party, in its written statement, stated that the complainants visited the Chandigarh Office on 20.04.2011 to enquire about construction status of their Villa and they were told that the construction of the same did not start and was also conveyed that the Opposite Party had intimated them about the delay in construction of their Villa but they were not willing to shift to any other location as the Villa, in question, was a corner Villa.  It was also denied by the Opposite Party that the offer made by it was not acceptable to the complainants, particularly since the cheques towards refund of amount deposited by the complainants and interest @12% were duly encashed by them. If that was the case, the complainants would not have accepted the refund of the amount @12% simple interest on 04.09.2012. The very fact that they accepted the offer dated 08.08.2012 on 04.09.2012 without raising any grievance to the Opposite Party upon receipt of the same clearly goes to show that the complainants intended on accepting the offer of the Opposite Party, without any protest. It was also denied by the Opposite Party that the protest of the complainants dated 12.08.2012 is indicative of the fact that the offer was not acceptable to the complainants because if that was the case, the complainants would either have accepted the refunded amount alongwith @12% simple interest with protest or not accepted the amount, at all. So, after satisfaction from the receipt of the said payment, the complainants cannot now raise a grievance of insufficiency of the said amount. It is clear that the complainants are only seeking unjust enrichment by abusing the process of law. Moreover, the complainants having unconditionally accepted refund of amount together with interest @12% p.a. on 04.09.2012 and, thus, ceased to be consumers. The Counsel for the Opposite Party relying upon the judgment passed by the Hon’ble National Commission on 10.07.2012 in Revision Petition No.1911 of 2012 with I.A. No.1 of 2012 titled as Parveen Kumar Arora Vs. The Estate Officer, Haryana Urban Development Authority, Sector 12, Faridabad & Ors., wherein, it has been stated in para No.9 & 10, which read thus :-

“9. Once, petitioner has received the entire deposited amount unconditionally and has also got the cheque encased, under these circumstances petitioner ceased to be a ‘consumer’ as per Consumer Protection Act, 1986. The privity of contract or relationship of consumer and service provider between the parties if any, came to an end the moment petitioner accepted the refund unconditionally and also got the cheque encased. Under these circumstances, District Forum ought to have dismissed the consumer complaint of the petitioner.

10.    Petitioner having got the refund amount of Rs.2,63,199/- as far back as in the year 2004, is enjoying with that money and now he wants to have the plot in question for free. Petitioner cannot have the cake and eat it too. Hence, the present petition is most bogus and frivolous one as well as is merit less, which is required to be dismissed with punitive costs for wasting the time of this Commission.”

13.         Moreover, it was held in Smt. Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the  Punjab and  Haryana High Court,  that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In  New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court,  it was held as under:-

“No doubt the words “sufficient cause” should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all “sufficient cause” is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether, the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.”

14.                    In  Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it was held as under:-

 

“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one is not to be swayed by sympathy or benevolence.

 

15.               In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 566, the Supreme Court observed as under:-

 

“We hold that in each and every case the Court has to examine whether delay in filing the Special Leave Petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition”.

 

16.              In Balwant Singh Vs. Jagdish Singh and Ors, V (2010) SLT 790=III (2010) CLT 201 (SC), it was held as under:-

“The party should show that besides acting bona fide, it had taken all possible steps within its  power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]”

 

17.         In Mahant Bikram Dass Chela Vs. Financial Commissioner and others, AIR 1977, S.C. 2221, it was held as under:-

 “Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigation who is not vigilant about his rights must explain every days delay”

 

18.              In Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) it was held as under:-

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”

 

19.         Recently, the National Consumer Disputes Redressal Commission, New Delhi in Regional Provident Commissioner, Guntur Vs. S. Siva Sankar Rao, Revision Petition No.1617 of 2014, decided on 01.05.2014, whereby five other similar Revision Petitions bearing No.1618, 1619, 1620, 1645 and 1796 all of 2014, were decided, while dealing with the issue as regards condonation of delay of 61, 62 and 78 days in filing the said Revision Petitions, placed reliance on Office of Chief Post Master General & Ors. Vs. Living Media India Ltd. & Anr., 2012 STPL (Web) 132 (SC), wherein the Hon’ble Apex Court held as under:-

“13. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.

 

Accordingly, the appeals are liable to be dismissed on the  ground of delay.”

 

20.         The National Commission, in Para 8 of the order, held that “…in these cases, day to day delay was not explained. The cases are barred by limitation”.

21.         Further, in Paras 9 to 13, the National Commission held as under:-

9.  This view neatly dovetails with the following authorities. In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), R. B. Ramlingam v. R. B. Bhavaneshwari, I (2009) CLT 188 (SC)= I (2009) SLT 701=2009 (2) Scale 108, Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, and Bikram Dass vs. Financial Commissioner and Ors. AIR 1977 SC 1221.

10.    The latest view taken by the Supreme Court is in Civil Appeal No. 19896 of 2013 in the case “M/s Ambadi Enterprise Ltd. Vs. Smt. Rajalakshmi Subramanian”, decided on 12th July 2013 wherein SLP was dismissed upholding the judgment of this Commission, where the delay of 78 days was not condoned.

11.    Again the Apex Court while dismissing the Special Leave to Appeal (Civil) No. 33792 of 2013 in Chief Officer, Nagpur Housing & Area Development Board &Anr. V. Gopinath Kawadu Bhagat, decided on 19.11.2013, upholding the order of this Commission where 77 days delay was not condoned.

12.    Above all, in Sanjay Sidgonda Patl Vs. National Insurance Co. Ltd. & Ors., decided by the Apex Court while dismissing the Special Leave to Appeal  (Civil) No. 37183 of 2013, decided on 17.12.2013, upholding the order of this Commission wherein delay of 13 days was not condoned. 

13.    Consequently, we find that the case is barred by time.  However, we refrain from giving the view on the merits of this case.”

 

22.         In view of the afore-extracted citations, we are of the view that the principle of law laid down is fully applicable to the facts of the present case. In the instant case, once the complainants accepted the deposited amount with simple interest @12%, without any protest and encashed the same, as such, they ceased to be a ‘consumer’ as per the Consumer Protection Act, 1986. The privity of contract or relationship of consumer and service provider between the parties if any, came to an end the moment the complainants accepted the refund unconditionally and also got the cheque encashed. The complainants having got the refund amount of Rs.1,34,99,976/- i.e. Rs.39 lacs more as far back as in the year 2012 and filed earlier Consumer Complaint No.106 of 2014 before this Commission on 04.09.2014 i.e. approx. two years after receipt of the huge amount from the Opposite Party. Moreover, if the complainants did not want that amount of Rs.1,34,99,976/-, it was the duty of the complainants to send back the said cheques to the Opposite Party or received the said amount under protest, but the complainants did not do so. Even the cause of action arose in the present case in the year 2011 when the complainants were fully aware that the said Villa, for which, they made the payment, does not exist and they also lodged a complaint against the Opposite Party with the police. Since the complainants were well aware of the fact that such Villa does not exist with the Opposite Party in the year 2011 and also received the money without any protest and eacashed the same in September, 2012, so we do not find any justification for allowing the delay of 352 days in filing the complaint. After going through the application for condonation of delay, we are of the view that the cause, set up by the applicants/complainants, in the application, for condonation of delay, could not be said to be plausible.  Since, no sufficient cause is constituted, from the averments, contained in the application, coupled with the facts available on record, the delay of 352 days,  cannot be condoned. Therefore, the application for condonation of delay is, thus, liable to be dismissed.

23.         For the reasons, recorded above, the application for condonation of delay of 352 days, in filing the complaint, being devoid of merit, must fail, and accordingly the same is dismissed. Consequently, the complaint also fails and is dismissed.  

24.         Certified copies of this order, be sent to the parties, free of charge.

25.         The file be consigned to Record Room, after completion.

Pronounced.

July 18, 2016.                                               Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

rb