Delhi

North

CC/13/2024

MEENU GUPTA - Complainant(s)

Versus

HARYANA SHAHARI VIKAS PRADHIKARAN - Opp.Party(s)

30 Jan 2024

ORDER

District Consumer Disputes Redressal Commission- 1 (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe-II Building,Tis Hazari Court Complex, Delhi-110054

 

Consumer Complaint No. 13/2024

In the matter of

Mrs. Meenu Gupta

W/o Mr. Rajesh Gupta,

R/o 3/52, Second floor

Roop Nagar, Delhi-110007                    …                          Complainant

VERSUS

Haryana Shahari Vikas Pradhikaran

HSVP Complex,

Sector-14 Gurugram, Haryana-122015

Also at:

HSVP Complex

Sector-13, Hisar

Haryana-125001                                  …                          Opposite Party

 

ORDER

30.01.2024

(Divya Jyoti Jaipuriar)

1. By way of this complaint, the Complainant herein has alleged deficiency of service by Haryana Shahri Vikas Pradhikaran (Opposite Party herein) in not handing over the physical possession of the plot allotted to the Complainant herein. We have heard the arguments on admissibility of this complaint led by Shri Shri Aditya Sharma, L. Advocate for the Complainant on the last date of hearing and perused the records and pleadings before reserving the order on admissibility of the complaint.
2. Briefly stated, the Complainant herein has applied for an allotment of a plot by OP herein in Hisar, Haryana. The Complainant was successful in the draw of lots  and was allotted a plot bearing Plot No. 3068H in Sector 14P-II, Hisar, Haryana admeasuring 10 Marla (approximately 227.85 Sq. Mtrs.) on 06.02.2014. After making the payments as per the schedule, the OP herein has issued offer of possession letter on 16.02.2017. Complainant also states that the possession of the plot was given only on 04.07.2022. The Complainant alleges that the OP has given actual possession after a delay and has charged interest rate on the balance due even without handing over actual possession. Accordingly, the Complainant has prayed, inter alia, for a direction to the OP to pay a sum of Rs. 16,13,319/- which includes principal amount and the interest @ 12% on due amount paid by the complainant and penal interest @ 15% to be paid by the OP on account of delayed possession of the plot in question.
3. We have perused the records and heard the arguments of the Ld. Advocate for the OP. Ld. Advocate for the OP has argued that in view of clause 7 of the terms and conditions of the allotment letter, the OP is required to pay the penal interest to the Complainant/ allotte if the possession is not handed over within three years of the allotment. Clause 7 of the terms and conditions is reproduced here:
   1. The possession of the plot will be offered within a period of 3 years from the date of allotment after completion of development work in the area. In case possession of the plot is not offered within the prescribed period of 3 years from the date of allotment, HUDA will pay interest 9% (or as may be fixed by Authority from time to time) on the amount deposited by you after the expiry of 3 years till the date of offer of possession and you will not be required to pay the further installments. The payment of the balance Installments will only start after the possession of the plot is offered to you.”
4. The interpretation of clause 7 by the Complainant and the Ld. Advocate appearing for the Complainant is misconceived. The said clause clearly provides that the OP shall make the payment of panel interest only if the OP does not make any offer of possession within a period of three years of allotment. The caluse also provides that the Complainant is required to make payment of balance amount in instalments only after offer of possession is made. This clause does not refer to actual handing over of physical possession. It is not the case of the Complainant that the OP has not offered possession. The documents and pleading in the complaint clearly indicates that the possession of the said plot was offered on 16.02.2017 and the subsequent instalments was made payable only after the said date of offering possession. Offer of possession is different from handing over actual possession. The terms and conditions refers to “offer of possession” and not “actual possession”.
5. Further, clause 6 of the terms and conditions provides that the interest @12% PA on the balance due amount is payable by the Allottee/ Complainant herein after the date of offer of possession. In this context, clause 6 is reproduced here:

“6. The balance amount i.e. Rs.2477869.00/- of the tentative cost of the plot/building can be paid in lump-sum without Interest within 60 days from the date of issue of the allotment letter or in 6 Yearly instalments of Rs.412978.00/-. The first Instalment will fall due after the expiry of one year of the date of issue of this letter. Each instalment would be recoverable together with interest on the balance price @12% p.a. on the remaining amount. The interest shall, however, accrue from the date of offer of possession. In case balance 75 % of the tentative price of the plot is paid in lump-sum within 60 days from the date of issue of allotment letter, the rebate of 5% in the price of plot will be allowed.”

6. As clause 6 also clearly mandates payment of interest by the allottee/ Complainant herein @ 12% PA on the due amount after the date of offer of possession, the same is calculated and indicated in the offer of possession letter dated 16.02.2017. In this clause also, the term used is “offer of possession” and not “actual physical possession”. Hence, under the terms and conditions of the allotment letter, the OP can charge the interest @ 12% PA from the date of offer of possession.
7. The Complainant has not challenged the terms and conditions of the allotment letter before us. The Complainant has only alleged that OP has violated the terms and conditions. In view of our observation above, we do not see any violation of the terms and conditions by the OP. At this stage, we would also like to record that under the provisions of the Consumer Protection Act, 2019, the challenge to the term and conditions of any contract on the ground of unfairness cannot be made before the District Commissions. The unfair contract can only be challenged before Hon’ble State Commission under section 47 (1) (a) (ii) of the CPA, 2019 or before Hon’ble National Commission under section 58 (1) (a) (ii) of the CPA, 2019. There is no similar provision under section 34 of the CPA, 2019 which determines the jurisdiction of the District Commissions. Hence, even if the Complainant intends to challenge the terms and conditions on the ground of unfairness, this Commission cannot entertain such challenge.
8. We also note that the OP has informed the Complainant about the charging of interest in the offer of possession letter dated 16.02.2017. The Complainant, if not satisfied with such charging of the interest, was required to approach the Consumer Commission within 2 years of such communication. The Complainant has approached this Commission only on 09.01.2024, after almost 5 years since the expiry of the limitation period. The Complainant has pleaded that the Complainant has been in constant touch with the OP since then. Hence, there is a continuous cause of action. This is not correct interpretation of the limitation period as prescribed under the provisions of the CPA, 2019. The period of limitation as prescribed under the provisions of CPA 2019 and CPA 1986 (now repealed) are identical. While examining the concept of limitation period as prescribed under the CPA, 1986, Hon’ble Supreme Court in the matter of Kandimalla Raghavaiah Vs. National Insurance Company Ltd. [(2009) 7 SCC 768], has held that for the purpose of calculating the limitation under the provisions of Consumer Protection Act, the date on which first cause of action has arisen should be considered. In the case of hand, the first cause of action arose on 16.02.2017, when the OP has communicated about the charging of the interest rate @ 12% PA on the balance amount. Therefore the limitation period of two years for filing the consumer complaint ended on 15.02.2019. The complaint was not filed during the said period, hence the complaint is time barred.
9. Further, in Kandimalla Raghavaiah case (Supra), Hon’ble Supreme Court has also held that the complaint is liable to be dismissed, if the delay is not duly explained. In the case in hand, the Complainant has not explained the reasons for the delay in filing this complaint. In the matter of State Bank of India vs B S Agriculture (I) [(2009) 5 SCC 121], Hon’ble Supreme Court has held that Consumer Forum (now Consumer Commission) should deal with the merit of the case only if the complaint is filed within the limitation period or if the Complainant has explained the cause of delay. In such case, the Consumer Forum is required to pass a reasoned order on the aspect of delay. In the case in hand, the Complainant has not explained the reasons for the delay and it is also filed beyond the limitation period as prescribed.
10. Hence, based on the findings and observations above, we are of this complaint is liable to be dismissed on these following grounds:
    1. There is no violation of the terms and conditions by the OP.
    2. This Commission does not have jurisdiction of entertain the challenge to the unfair contract between the parties.
    3. The complaint is time barred and the reasons delay is not adequately explained. The Complainant has also not filed any application seeking condonation of delay.
11. Accordingly the complaint is dismissed on the above three grounds at admission stage itself. Office is directed to supply a copy of this order to the parties in accordance with the rules. Thereafter file be consigned to the record room.

 

 

 

___________________________

Divya Jyoti Jaipuriar, President

 

 

 

___________________________

Ashwani Kumar Mehta, Member

 

 

 

___________________________

Harpreet Kaur Charya, Member