Chandigarh

StateCommission

CC/63/2015

Ashutosh Gopal - Complainant(s)

Versus

Emaar MGF land Pvt.Limited - Opp.Party(s)

Sh.Pankaj Chandgothia, Adv.

11 Jun 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                UNION TERRITORY, CHANDIGARH

 

                                   

Consumer Complaint No.	63 of 2015
Date of Institution	06.04.2015
Date of Decision	11/06/2015

 

Ashutosh Gopal r/o H.No.139, Sector 10, Panchkula.

 

….…Complainant

 

V E R S U S

 

Emaar MGF Land Pvt. Ltd. through its Branch Head, SCO No.120-122, First Floor, Sector 17-C, Chandigarh.

 

.….. Opposite Party

 

 

BEFORE: SH.DEV RAJ, PRESIDING MEMBER

                SMT.PADMA PANDEY, MEMBER      

                                                                       

Argued by:   

 

Sh.Pankaj Chandgothia, Advocate for the complainant.

Sh.Sanjeev Sharma, Advocate for the Opposite Party.

 

PER PADMA PANDEY, MEMBER

 

                In brief, the facts of the case are that the complainant had approached the Opposite Party for the purchase of plot, being allured by its advertisement in the leading newspapers/brochures for the sale of plot. The complainant applied the plot vide application No.2016/2007 and he was allotted a 300 sq. yds. plot in Sector 108, Pinewood Park, Mohali Hills vide letter dated 11.04.2007 (Annexure C-1) for a sum of Rs.34,50,000/-. It was stated that apart from the abovesaid total consideration of Rs.34,50,000/-, the complainant was also to deposit External Development Charges amounting to Rs.1,47,249/-. It was further stated that the amount was paid in full vide account statement (Annexure C-2). Thereafter, Plot Buyer’s Agreement was executed between the parties, at Chandigarh, on 04.07.2007 (Annexure C-3).  It was further stated that the complainant had obtained a loan from financial institution and was paying heavy interest to it. It was further stated that after payment of 70% of the principle amount, the complainant inquired about the status of amenities being made available on 24.09.2008 and he came to know after visiting the site that amenities like water, sewerage, road, electricity and other civil amenities had not been completed. The complainant could not even see his demarcated plot at that time and he informed the Opposite Party through email (Annexure C-4) that without seeing his plot and development, he would not be able to pay any more money to the Opposite Party and they should not charge any penal interest, as it was fault on its part. On the query of the complainant, the Opposite Party mentioned some stereo type reply (Annexure C-5) but insisted for the remaining installments to be cleared stating payment was not linked with possession.

2.             It was further stated that in the year 2009, the complainant decided to construct his house on the allotted plot, for which, he asked the Opposite Party to give legal possession, so that he could apply for loan from his bankers and start construction but to no avail. It was further stated that instead of coming forward to settle the queries of the complainant and showing some actual development, the Opposite Party further imposed penalty of Rs.1,56,391/- on 09.11.2009 for delayed payment and the same was raised to Rs.2,22,000/- in April, 2010 (Annexure C-7 and C-8). It was further stated that on representation of the complainant, the delayed payment interest penalty was waived off fully on 10.04.2010 but later on, the Opposite Party intentionally re-imposed the same just to harass him. In fact, the basic amenities were still not completely provided and the delayed payment interest amount was further raised to Rs.2,35,704/- vide communication dated 11.07.2014, Rs.2,35,817/- vide another communication of the same date and then on 29^th July the same amount was increased to Rs.2,37,319/-. Thereafter, the Opposite Party threatened to cancel the allotment and intentionally declared the complainant as a defaulter. Copies of the communications are Annexure C-9 and C-10. It was further stated that to avoid the recovery of interest claimed by the complainant from the Opposite Party due to actual legal possession, it had sent a letter of possession dated 30.01.2010 (Annexure C-11), despite the fact that position with regard to developmental works had not improved in the month of January, 2010. On receipt of the afroresaid letter, the complainant visited the actual plot/site but there was no development and, as such, he went to the office of the Opposite Party and told that the offer of possession could not be accepted at that time, as there was no development at the site and the basic amenities for the construction were also not available. It was further stated that the offer of possession was only a paper possession.

3.             It was further stated that the Opposite Party asked to pay the club charges but he did not wish to avail the same and also informed it (Opposite Party) in writing but it tried to forcefully bind the customers in a legal mess by asking them to sign an indemnity on a stamp paper. Copy of the indemnity bond/undertaking has been annexed as Annexure C-13. It was further stated that on 17.04.2014 the Opposite Party sent an offer of possession and registration for the complainant’s plot but added huge unreasonable amounts due and fictitious outstanding. It was further stated that a couple of such mails and statement of account of the complainant with such fictitious and inflated outstanding amount was again sent on 29.07.2014 and 13.08.2014. Moreover, the Opposite Party also demanded a penalty of Rs.50/- per sq. yard per month for not taking possession. Copies of the letters sent by the Opposite Party are Annexure C-14 and C-15. On 22.05.2014 the complainant demanded interest from the Opposite Party as it failed to deliver possession of the plot inspite of the payment of full amount of Rs.34,50,000/- and as per Clause 8 of the Buyer’s Agreement (Annexure C-3), an amount of Rs.6.82 lacs due at that time from it, which was increased to Rs.7.55 lacs on 15.09.2014 and further escalated till possession of the plot handed over to the complainant.  It was further stated that apart from the payment of cost of the plot of Rs.34,50,000/- and EDC charges amounting to Rs.1,47,249/-, the complainant also deposited Rs.1,62,851/- through cheques on the demand of the Opposite Party vide acknowledgment- cum – demand receipt dated 22.07.2014 (Annexure C-17 & C-18).  It was further stated that the complainant and another applicant Mr.Kabir Khanna applied under RTI Act  to know about the actual and factual position of the plot, which was duly replied  that the Opposite Party did not apply for the completion certificate and also it had not even applied for the basic amenities till date. Ultimately, the complainant served a notice through email dated 27.12.2014 (Annexure C-24) to the Opposite Party and asked for refund of his deposited amount alongwith interest but to no avail. It was further stated that the Opposite Party was deficient, in rendering service, as also, indulged into unfair trade practice.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the “Act” only), was filed.

4.             In its written statement, the Opposite Party stated the present complaint was not maintainable, as the sum total of all the reliefs claimed exceeds the valuation of one crore and, as such, the same is liable to be dismissed for want of pecuniary jurisdiction. It was further stated that the Opposite Party offered the possession of the plot on 30.01.2010 (Annexure C-11) i.e. well within the time limit as stipulated in the terms and conditions of the Agreement and, as such, the claim on the basis of delayed possession, as per Clause 8 of the Buyer’s Agreement, was not applicable. Moreover, the complainant was liable to pay holding charges of Rs.10,36,729/- (as on 14.05.2015) in terms of Clause 9 of the Agreement for not taking possession of plot till date. It was further stated that the Opposite Party offered possession of the plot to the complainant on 30.01.2010 but he failed to take the same and had not cleared his balance dues. It was further stated that had the complainant any grievance with regard to offer of possession, he could have filed the complaint within two years from the date of cause of action i.e. till 29.01.2012 and the present complaint being filed in 2015 was barred by time and liable to be dismissed on this ground alone.  It was further stated that the complainant was not entitled to the reliefs claimed and no interest/compensation was payable, since he himself was not taking physical possession and delaying payment of balance dues/charges. It was further stated that in case, the complainant wanted to cancel the Agreement and seek refund, despite possession being offered within the agreed timelines, then the Opposite Party is entitled to forfeit earnest money = 30% of sale price in terms of Clause 2(f) together with other charges including holding charges and no interest/compensation payable to the complainant. It was further stated that the complaint was dismissed on the ground of non-joinder of necessary party as he did not make the bank/financial institution from where he took the loan, as a party.

5.             It was further stated that the Company launched  the project in the year 2006 and invited applications from customers, for which, the complainant submitted an application of booking a 300 sq. yards plot and he was provisionally allotted Plot bearing No.294 in Pinewood Park, Sector 108, SAS Nagar, Mohali vide letter dated 11.04.2007 for a sale consideration of Rs.35,97,249/- (basic sale price Rs.34,50,000/- + EDC of Rs.1,47,249). It was further stated that the EDC is subject to revisions (increase/decrease) and demanded as per notifications issued by the Government from time to time. It was further stated that the plea of the complainant regarding non completion of the amenities in 2008 was irrelevant and without any merit, as possession of the plot after completion of the amenities was to be offered by to the complainant within 3 years from the date of execution of Buyer’s Agreement. It was further stated that the complainant was bound to make the payment as per the payment schedule (time linked) and the demands were raised by the Opposite Party in accordance with the said schedule. Copy of the payment plan is Annexure R-3. It was further stated that the Opposite Party informed the complainant vide email Annexure C-5 that the development is going on in all sectors and the Company committed to hand over possession of the plot within agreed timelines. It was stated that the complainant tried to avoid making of balance payment due towards him. It was further stated that possession was offered on completion of the amenities in the year 2010 and many other customers had also taken possession of their units in the same area at the relevant time. Copies of few such possession certificates have been attached at Annexure R-4 (Colly.). It was further stated that the complainant, without raising any protest, as to non-development of the area, paid amounts demanded with respect to electrification charges, electricity connection charges, enhanced EDC, IFMS, monthly maintenance charges, water charges, amounting to Rs.1,79,871/- as were demanded by the Opposite Party vide letter dated 17.04.2014. It was further stated that the complainant had not led any evidence to prove that the area was not developed in 2010. It was further stated that the Opposite Party was exempted from the PAPRA Act and, as such, did not require any completion certificate. It was further stated that possession was offered on time, as per the Buyer’s Agreement, as such, the Opposite Party was neither deficient, in rendering service nor indulged into unfair trade practice.

6.             The complainant, filed rejoinder to the written statement of the Opposite Party, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of Opposite Party. 

7. The Parties led evidence, in support of their case.
8. We have heard the Counsel for parties, and have gone through the evidence and record of the case, carefully. 
9. The Counsel for the complainant submitted that

the complainant applied for a residential plot in the project of the Opposite Party and was allotted 300 sq. yds. plot in Sector 108, Pinewood Park, Mohali Hills vide allotment letter dated 11.04.2007 (Annexure C-1) for a total sum of Rs.35,97,249/- including EDC, and the complainant paid the entire amount. He further submitted that Plot Buyer’s Agreement dated 04.07.2007 was executed between the parties, at Chandigarh (Annexure C-3). He further submitted that as per the Agreement, possession of the plot was to be delivered within a period of 3 years from the date of execution of the same. He further submitted that the Opposite Party offered possession of the plot, vide letter dated 30.01.2010 but when he visited the site, he found that there was no development at the site. He further submitted that the Opposite Party further imposed penalty of Rs.1,56,391/- on 09.11.2009 and Rs.2,22,000/- in April, 2010 for the delayed payment (Annexure C-7 and C-8). He further submitted that on representation of the complainant, the delayed payment interest penalty was waived off fully on 10.04.2010 but later on, the Opposite Party intentionally re-imposed the same just to harass him. He further submitted that the Opposite Party threatened to cancel the allotment and intentionally declared the complainant as a defaulter. He further submitted that on 17.04.2014 the Opposite Party again offered possession but added huge unreasonable amounts due, including holding charges. He further submitted that the complainant also deposited Rs.1,62,851/- through cheques on the demand of the Opposite Party vide acknowledgment- cum – demand receipt dated 22.07.2014. He further submitted that despite receipt of huge amount from the complainant, the Opposite Party failed to deliver physical possession of the plot, and left with no other alternative, the complainant asked for refund of the amount deposited by him, but to no avail.

10.         On the other hand, the Counsel for the Opposite Party, submitted that the complainant, was provisionally allotted plot No.294 in Pinewood Park, Sector 108, SAS Nagar, Mohali, measuring 300 sq. yards vide letter dated 11.04.2007 for a total sale consideration of Rs.35,97,249/- and Plot Buyer Agreement was executed between the parties on 04.07.2007. He further submitted that the complaint was beyond the period of limitation, as envisaged under Section 24-A of the Consumer Protection Act, 1986. He further submitted that the cause of action, if any, had arisen on 30.01.2010, when the Opposite Party offered possession of the plot to the complainant but he (complainant) failed to take the same for the reasons best known to him, and the complaint could have been filed within two years i.e. upto 29.01.2012 from the date of accrual of cause of action.  It was further submitted that the complaint deserved to be dismissed in terms of Section 24-A of the Consumer Protection Act, as the complaint was filed, beyond the period of two years, from the date of accrual of cause of action. He further submitted that neither there was any deficiency, in rendering service, on the part of Opposite Party, nor it indulged into unfair trade practice.
11.         Notwithstanding the merits of the case, the core question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was barred by limitation or not. It is evident from the record that the Plot Buyer’s Agreement was executed between the parties, at Chandigarh, on 04.07.2007 (Annexure C-3) and as per Clause 8 of the Plot Buyer’s Agreement, the possession was to be delivered within a period of 2 (Two) years from the date of execution of the said Agreement, but not later than 3 (Three) years. The Opposite Party offered possession of the plot to the complainant vide letter dated 30.01.2010 (Annexure R-1 Colly.) but he failed to take the same. The cause of action accrued to the complainant on 30.01.2010, when the Opposite Party offered possession of the plot. As such, the complaint was required to be filed within a period of two years, from the date of accrual of cause of action. The complainant, however, filed the present complaint on 06.04.2015 i.e. after approximately 5 years and 3 months of the accrual of cause of action. Even if it is assumed for the sake of arguments that there were no basic amenities at the site where the plot, in question, is situated when possession was offered to the complainant, vide letter dated 30.01.2010 (Annexure R-1 Colly.) he could correspond with the Opposite Parties upto 28.01.2012, but was required to file complaint before on 29.01.2012, if the alleged grievance had not been redressed. No further notice or document could extend the period of limitation. Section 24A of the Act, deals with the situation, which reads as under:-

“24-A. Limitation period :- (1) 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 be, records its reasons for condoning such delay.”

 

12. The above provision is clearly peremptory, in nature, requiring the Consumer Fora to see, at the time of entertaining the complaint, whether it has been filed within the stipulated period of two years, from the date of accrual of cause of action or not. 
13. Not only this, in Alka R. Singh Vs. Shalimar Estates (Pvt.) Ltd., First Appeal No.699 of 2012, decided on 29.05.2014, by the National Consumer Disputes Redressal Commission, New Delhi,  somewhat similar question, arose for decision. In that case also, the complainant, in paragraph No.13 of the complaint, relating to the cause of action, stated as under:-

“That the cause of action has arisen in favour of the complainant and against the respondents, firstly, when the respondent failed to handover the possession of the aforesaid commercial showroom within two years i.e. by the year 2009 and secondly, on 5.3.2012 when the respondent point blankly refused to refund the earnest money of the Rs.23,67,587/- to the complainant in-spite of the best effort by the complainant in this regard”

 

14. Keeping in view the averments, contained in paragraph number 13 of the complaint, in Alka R. Singh’s case, it was held by the National Commission that since cause of action accrued to the complainant, in 2009, as such, she could file a complaint upto 2011, but the same having been filed in 2012, was barred by time. In Vijaykant Motilal Kothari Vs. Safire Hotel Private Ltd., II (2013) CPJ 696 (NC),the petitioner was put in possession of the shop on 10.07.2001, whereas, he filed the consumer complaint, in the year, 2005, claiming certain reliefs, in respect of that shop. In those circumstances, it was held by the National Commission that the complaint was barred by time. As stated above, once the cause of action, arose to the complainant on 30.01.2010 when the Opposite Party offered possession of the plot to him, the complaint having been filed by the complainant on 06.04.2015 i.e. after more than five years and three months of the accrual of cause of action, in view of the principle of law, laid down, in the aforesaid cases, was palpably barred by time. 
15. In S.C. Jain Vs. Haryana Urban Development Authority, Revision-Petition No.789 of 2012, decided on 21.11.2012, by the National Consumer Disputes Redressal Commission, New Delhi, the facts of the case were that the complainants, who were reallottees, were offered possession of the plots, in question, on 06.09.2000. They filed the consumer complaint, before the District Forum, on 01.02.2005, alleging that they were offered possession of the plots, in the absence of development works. As such, they sought interest on the deposited amount with effect from 03.04.2000, till the actual physical possession of the plot, after making development and after providing the basic amenities was delivered. The said complaint was allowed by the District Forum. Feeling aggrieved, against the order of the District Forum, the appellant i.e. Haryana Urban Development Authority, filed appeal before the State Commission, which was accepted by it, on the ground that the complaint was barred by limitation. Thereafter, the revisionist/complainant filed Revision-Petition, before the National Commission, which was dismissed by it, vide order dated 21.11.2012. Still feeling aggrieved, the appellant/complainant filed Special Leave to Appeal (Civil) CC 21917-21918/2013, against the order dated 21.11.2012, passed in the Revision-Petition, by the National Commission, in the Supreme Court of India, which was also dismissed vide order dated 03.01.2014.
16. Not only this, in Umesh Saini Vs. Estate Officer, Haryana Urban Development Authority Office, Revision-Petition No.3004 of 2010, decided on 20.01.2011, by the National Consumer Disputes Redressal Commission, New Delhi, the mother of the complainant who was allottee of the plot was offered possession of the same, by HUDA, Panchkula, vide letter dated 07.02.2001. She deposited the full price, but did not take possession on the ground that the said plot was too close to the adjoining drain (Choe). In 2003, the plot was reallotted in the name of the complainant. In 2005, without taking possession of the plot, the complainant filed a consumer complaint, before the District Consumer Disputes Redressal Forum, Panchkula, seeking damages of Rs.16.42 lacs and allotment of an alternative plot. The District Forum came to the conclusion that since the possession was offered on 07.02.2001, the complaint having been filed in 2005, was barred by limitation. Appeal filed against the order of the District Forum was dismissed by the State Consumer Disputes Redressal Commission, Haryana. Feeling aggrieved, Revision-Petition, aforesaid, was filed by the complainant/Revision-Petitioner. The National Consumer Disputes Redressal Commission, New Delhi, came to the conclusion that since possession of the plot was offered on 07.02.2001, the consumer complaint could be filed within a period of two years, and, as such, the complaint having been filed in 2005 was barred by time.
17. Similarly, in the instant case also, as stated above, once the cause of action, accrued to the complainant, on 30.01.2010, when possession of the plot was offered to him, and he did not accept the said offer, for whatever the reason may be, it was required of him (complainant) to file the complaint upto 29.01.2012, if his grievance had not been redressed, but he failed to do so, for the reasons, best known to him. By no stretch of imagination, it could be said that there was a continuing cause of action, in favour of the complainant. Had the possession been not offered to the complainant, vide letter Annexure R-1 (Colly.), received by him (complainant), the matter would have been different. In those circumstances, it might have been said that since neither possession was offered nor delivered, nor the refund was made, and hence the cause of action being continuing, the complaint having been filed was within time. In view of the principle of law, laid down, in the aforesaid cases, it is held that the complaint having been filed by the complainant, on 06.04.2015 i.e. after about  5 years and 3 months of the accrual of the cause of action, was palpably barred by time, under Section 24A of the Act.

18.            The next question, that arises for consideration, is, as to whether, this Commission can decide the complaint, on merits, especially, when it has come to the conclusion, that the complaint filed by the complainant was palpably barred by limitation. The answer to this question, is in the negative, as provided by the Apex Court in State Bank of India Vs B.S. Agricultural Industries’s case (supra). The question before the Apex Court, was with regard to the condonation of delay, in filing the complaint, in the first instance, beyond the period of two years, as envisaged by Section 24A of the Act. The Apex Court was pleased to observe as under ;

“Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the Consumer Fora thus:

“24A. Limitation period—(1) 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 be, records its reasons for condoning such delay.”

 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.”

19.            The principle of law, laid down, by the Apex Court in  State Bank of India’s case (supra), is fully applicable to the facts of the present case. In case, this Commission, decides the complaint, on merits, after coming to the conclusion, that it is palpably barred by time, it would amount to committing an illegality, in view of the principle of law, laid down in  State Bank of India’s case (supra).

20.            For the reasons, recorded above, the complaint is dismissed, being barred by time, with no order as to costs.

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

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

Pronounced.                                                                                                 Sd/-

11/06/2015                                                                                                                                                                                                        [DEV RAJ]

                                                                                    PRESIDING MEMBER

 

                                                                                                                        Sd/-

[PADMA PANDEY]

MEMBER