STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 15.05.2017
Date of final hearing: 17.05.2023
Date of pronouncement: 24.07.2023
First Appeal No.587 of 2017
IN THE MATTER OF:
Hemant Kumar Bhadury son of Dr. Braham Gopal Bhadury, resident of MCF Officer Colony, 3-B, NIT Faridabad. ....Appellant
Versus
- Haryana Urban Development Authority through its Administrator, Sector-12, Faridabad.
- Estate Officer HUDA, HUDA Building, Sector-12, Faridabad.
- Chief Administrator Haryana, Haryana Urban Development Authority, Panchkula Haryana. …..Respondents
CORAM: Naresh Katyal, Judicial Member
Argued by:- Sh. D.K. Jhangra, counsel for the appellant.
Sh. B.S. Negi, counsel for respondents.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Delay of 12 days in filing the present appeal stand condoned for the reasons stated in the application for condonation of delay.
2. Challenge in this appeal No.587 of 2017 has been invited by complainant is to the legality of order dated 24.03.2017 passed by District Consumer Disputes Redressal Forum-Faridabad (In short “District Commission”) in complaint case No.173 of 2015.
3. Factual matrix is that: complainant applied for plot with OP No.1 and deposited Rs.83,125/- on 05.08.1992 towards booking amount. He was allotted plot No.17, Sector-21 C, Part 3, Faridabad in open auction. It is pleaded that: complainant visited office of OP No.1 and asked for formalities required to be completed by him, but was told that he will be informed through correspondence on address given by him. However, OP No.1 did not send any letter to him. Thereafter, complainant wrote letter dated 10.01.2017 to OP No.1 which was duly received vide diary No. 491 requesting to give details of amount due and to give possession of the said plot. He wrote another letter dated 18.01.2007 in this regard which was received vide dairy No. 943. He personally met officials of OP No.1. It is pleaded that: first the possession was assured in Jan-2009, then August-2010, then in August-2012 and then in June-2014. When complainant met OP No.1 on 10.11.2014, he flatly refused complainant to deliver possession. Thereafter, complainant served a legal notice dated 12.11.2014 for possession of the plot, but it was never answered. On these pleas, complaint was filed by asserting cause of action to issue directions to OP No. 1 to allot plot, handover actual and physical possession of plot No.17, Sector-21C, Part 3, Faridabad or alternatively refund of amount of Rs.95,000/- along with interest @24% p.a. from date of deposit. He be paid compensation of Rs.2.00 lacs for causing mental tension, harassment.
4. Upon notice, OPs raised contest. In joint defence; it is pleaded that complainant is not a consumer in terms of Consumer Protection Act 1986 and he has concealed true and material facts. Complaint is beyond the prescribed limit of limitation period. Complainant has no cause of action. It is pleaded that: complainant deposited sum of Rs.83,185/- on 05.08.1992 for booking of plot and took back Rs.83,185/- from OPs/HUDA vide cheque No. 0398961 dated 07.04.1993 of Punjab National Bank against plot No. 17, Part-3, Sector-21, Faridabad. He himself lost his entitlement/candidature for participation in any draw/procedure for allotment of plot. This fact was within knowledge of complainant that there was no pendency of any booking etc. of plot in dispute. It is denied that complainant is eligible for allotment of Plot No. 17 situated in Sector-21, Faridabad. It is denied that OPs told complainant that they will deliver the possession of said plot up to January-2009. It is denied that OPs told that complainant has to complete formalities regarding said plot and possession will be delivered up to June-2014. It is pleaded that when complainant took back the amount Rs.83,185/- vide cheque No. 0398961 of Punjab National Bank dated 07.04.1993, then question of delivering possession does not apply. On these pleas, dismissal of complaint has been prayed.
5. Parties to this lis led evidence, oral as well as documentary.
6. On subjectively analyzing the same; learned District Consumer Commission-Faridabad vide order dated 24.03.2017 has dismissed the complaint.
7. Feeling aggrieved; complainant has filed this appeal.
8. Learned counsel for parties has been heard at length. With their able assistance; record too has been perused.
9. Learned counsel for the complainant/appellant has urged that Impugned order is illegal and not sustainable. It is based on conjectures and surmises and merits have not been discussed and forum has not considered the harassment and agony of complainant suffered by him since last more than 15 years. On these submissions, learned counsel for complainant has urged for acceptance of appeal.
10. Per contra, learned counsel for respondents/OPs has supported the impugned order dated 24.03.2017 passed by learned District Consumer Commission by urging that it is outcome of proper appreciation of facts and evidence and warrant no interference.
11. It is express stand of the respondents/HUDA that complainant had received back booking amount of Rs.83,185/- of plot in question vide cheque No. 0398961 dated 07.04.1993 of Punjab National Bank. Having received this amount; complainant cannot raise any claim of allotment or possession of plot. This complaint has been filed on 30.04.2015. By any stretch of legal interpretation complaint has to be held being time barred. Even if, allegations of the complainant are taken at their face value then also complainant have allegedly written letter to opposite party firstly on 10.01.2007. From 07.04.1993 (when complainant took back booking amount of Rs.83,185/- by way cheque), till 10.01.2007, there is no averment worth credence that complainant ever approached the office of respondents for redressal of his grievance if any. In between, nearly abnormal period of 14 years has passed. Meaning, thereby complainant had never been vigilant to pursue his rights.
12. Zimni order dated 13.12.2019 passed by this Commission contains recital that appellant shall produce statement of account/passbook to show that no such cheque of No. 0398961 of Rs.83,185/- was received by him. Likewise, OPs were directed to produce material to show that aforesaid cheque was duly en-cashed and amount has been transferred in the name of complainant. OPs were also made to produce material showing that amount of Rs.83,185/- have been debited from HUDA’s account. In this regard, complainant had written letter dated 10.05.2023 to Branch manager, Indian Bank, Godaliyae (Varanasi). Note of the concerned bank dated 13.05.2023 is appearing on this application itself. As per this note, in the year 1993, working in the bank was manually based and there is no manual record available in branch, of year 1993. Simultaneously, it has been pointed out on 17.05.2023 before this Commission by OPs that it has no material available with it regarding old cheque No. 0398961 dated 07.04.1993 of Punjab National Bank, as record is very old.
13. Be that, none of the parties to this lis could produce any material regarding status of cheque No.0398961 dated 07.04.1993, yet this fact ipso-facto will not bring the complainant’s complaint within limitation period. It is for the obvious reason that complainant has not made any averment in his complaint that he did not obtain cheque No.0398961 dated 07.04.1993 of Rs.83,185/-. This fact has been pleaded in written statement of OPs. When complainant led his evidence then also he has not made any averment in a duly sworn affidavit Ex.C1/A to counter the positive averment made by OPs in its written version. Contrary thereto, Annexure R-1 is the leaf of bank draft register maintain by HUDA. If this document is perused, then it reflects an entry at Sr. No. 14717 showing that draft no. 359265 dated 05.08.1992 of Rs.83,125/- (booking amount). It also reflects that amount was refunded vide cheque No. 0398961 dated 07.04.1993. Consequently, in the absence of any proof provided to this Commission by either of the parties to this lis, in furtherance to order dated 13.12.2019 of this Commission; document Annexure R-1 will give a significant lead to the fact that: Rs.83,185/- was initially deposited by complainant vide bank draft No. 359265 dated 05.08.1992, and this amount was refunded to him vide cheque No. 0398961 dated 07.04.1993. This being so, the complainant had no subsisting claim regarding plot in question. As a flowing consequence, this appeal is not only liable to be dismissed being time barred, but also liable to be dismissed on merits. Complainant has no case and he deserves to be non-suited. He has been rightly non-suited by learned District Consumer Commission and rightly his complaint has been dismissed on the pedestal of limitation. Vide order dated 24.03.2017 There is no infirmity, illegality or manifest error in the impugned order dated 24.03.2017.
14. With above observations, the appeal being devoid of merits is hereby dismissed. Impugned order dated 24.03.2017 passed by learned District Consumer Commission-Faridabad is maintained and affirmed.
15. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
16. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
17. File be consigned to record room.
Date of pronouncement: 24thJuly, 2023
Naresh Katyal
Judicial Member
Addl. Bench-II
