Chandigarh

StateCommission

CC/168/2014

Raj Kumar Goyal - Complainant(s)

Versus

M/s Emaar MGF Land Limited - Opp.Party(s)

Sandeep Bhardwaj, Adv.

03 Mar 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH
 

Consumer Complaint	:	168 of 2014
Date of Institution	:	27.11.2014
Date of Decision	:	03.03.2015

 

Dr. Raj Kumar Goyal son of Sh. Sewa Ram R/o 325/XII Indian Colony, Near Tek Chand Hospital, Malerkotla.

……Complainant.

Versus

1.   Emaar MGF Land Limited, having its Corporate Office at ECE House, 28 Kasturba Gandhi Marg, New Delhi-110001, through its General Manager/Authorized Signatory.

2.  Emaar MGF Land Limited, SCO No.120-122, 1^st Floor, Sector 17-C, Chandigarh 160017, through its Authorized Signatory.

              ....Opposite Parties.

 

Complaint under Section 17 of the Consumer Protection Act, 1986.

                  

BEFORE:    JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                    SH. DEV RAJ, MEMBER.

                    MRS. PADMA PANDEY, MEMBER.

                  

 

Argued by:

 

Sh.  Sandeep Bhardwaj, Advocate for the complainant.

Sh. Ashim Aggarwal, Advocate for the Opposite Parties.

 

PER DEV RAJ, MEMBER

 

2.            It was further stated that as per Clause 8 of the Agreement, the Opposite Parties were bound to hand over possession within a period of 36 months from the date of execution of the same i.e. by 29.06.2010, failing which penalty in the sum of Rs.50/- per sq. yard per month for such period of delay beyond three years was to be paid by them (Opposite Parties). It was further stated that the Opposite Parties raised a demand of Rs.5,56,313/- for enhanced area and Rs.11,122/- towards delayed payment and further demanded Rs.5,76,801/- towards enhanced EDC vide letter sent in 2009 (Annexure C-9). It was further stated that the complainant did not accept the demand raised, in entirety, and only paid the amount of increased area. It was further stated that the Opposite Parties sent letter dated 10.07.2014 raising illegal demand of Rs.14,62,143.55, which included the last installment of Rs.2,30,000/-, which had already been waived off by them as onetime payment rebate. It was further stated that an amount of  Rs.1,58,662.11 towards interest on the said amount was also shown, which was illegal. It was further stated that on raising protest, the Opposite Parties revised the demand to Rs.12,75,641.4 vide letter dated 04.09.2014 without providing any breakups. It was further stated that the Opposite Parties later on issued letter dated 22.09.2014 (Annexure C-9B) demanding Rs.12,75,641/- to be deposited within 30 days, but no date was mentioned in the same and threatened to cancel the Buyer’s Agreement dated 30.7.2007. It was further stated that as per the information obtained by some of the allottees under Right to Information Act (Annexure C-10), the Opposite Parties had neither applied till date, for the commissioning of sewerage treatment plant, water supply, electricity supply, electric grid station nor applied/obtained the approvals/sanctions etc. in order to complete the basic infrastructure. It was further stated that, as such, the contention of the Opposite Parties regarding basic infrastructure and offer of possession in 2010 was false.
3.            It was further stated that as per the another information obtained under R.T.I (Annexure C-11), the Opposite Parties had not applied for occupation and completion certificate till April 2014 and GMADA specifically informed about all the statutory clearances required before giving the possession. It was further stated that GMADA also informed that the Opposite Parties had no connectivity to main city through connecting sector due to Court case. It was further stated that as per further information obtained under RTI (Annexure C-12), the Opposite Parties had not applied for completion certificate and the same had not been issued to them till 11.04.2014. It was further stated that the Opposite Parties have not applied for and obtained the completion certificate till date, which could authorize them to handover possession to the complainant and other allottees. It was further stated that the Opposite Parties applied for approvals of revised layout plan a number of times on 21.1.2008, 22.02.2011, 26.11.2011 and 16.04.2012, which were granted to them on 29.02.2008, 21.10.2011, 13.02.2012 and 31.01.2013 (Annexures C-15 to C-18 respectively).
4.            It was further stated that as per Section 14 of Punjab Apartment and Property Regulation Act, 1995, the Opposite Parties were required to obtain the completion certificate from the Competent Authority, to the effect that the development works had been completed in all respects as per the terms and conditions of the licence granted to them under Section 5 of PAPRA 1995. It was further stated that non-issuance of completion certificate in itself proved that the development had not been completed and the Opposite Parties offered illegal possession without completing the project and without completing the development work in order to escape their liability to pay compensation in accordance with Clause 8 of the Agreement. It was further stated that the Opposite Parties kept the money of the complainant and used the same for their own benefits, without informing him about the false status of the plot ignoring the Buyer’s Agreement.
5.            It was further stated that in December 2009, the Opposite Parties issued letter asking for consent to take possession. They also asked the complainant to deposit the delayed interest and additional amount of EDC. It was further stated that in the year 2014, the Opposite Parties again asked the complainant to pay the enhanced EDC, club membership, electricity connection charges, registration charges, electrification charges, stamp duty charges and monthly maintenance charges, which clearly proved that the project was not complete in the year 2009. It was further stated that the demand in itself proved that electricity, club, external development were not complete in the year 2009 and asking for the consent was only to deprive the complainant of compensation. It was further stated that the Opposite Parties kept the money of the complainant and used the same for their own benefit without informing him about the true status of the plot ignoring the Buyer’s Agreement.  It was further stated that since delay in completing the project was on the part of the Opposite Parties, they were also liable to pay penalty alongwith interest on the deposited amount to the complainant.

6.            It was further stated that the, aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence 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, directing the Opposite Parties to handover the legal physical possession of plot No.165, to the complainant, immediately, complete in all respects after obtaining necessary certificates/permission/approvals like, occupation, completion etc. etc. and get the sale deed and conveyance deed executed in respect of the same in his favour; pay penalty/compensation @Rs.50/- (Rupees Fifty only), per square yard per month from 29.06.2010 till realization; withdraw the illegal demand/charges; pay compensation to the tune of Rs.5 lacs on account of mental agony, financial loss and physical harassment, and cost of litigation to the tune of Rs.50,000/-.

7.           The Opposite Parties, were served and put in appearance on 6.1.2015. They filed their joint written statement on 16.02.2015. In the written statement, Opposite Parties, pleaded that the complaint was time barred as the same was filed more than two years after the accrual of cause of action. It was stated that possession was offered to the complainant in November 2009 vide letter (Annexure C-6) upon completion of amenities as mentioned in Clause 23 of the Agreement dated 30.06.2007 and reminder was sent to the complainant on 16.12.2011 (Annexure C-7) to take possession and initiate construction, which he failed to do till date. It was further stated that the complainant himself admitted that cause of action accrued to him on 29.06.2010. It was further stated the complaint was not maintainable as there existed an arbitration Clause No.39 in the Plot Buyer’s Agreement, as per which, all the disputes were to be referred to an Arbitrator.

8.           It was further stated that the plot was transferred in the name of the complainant on 10.03.2008 (Exhibit OP/3), on completion of relevant formalities. It was further stated that the total consideration of the plot as per the Agreement was Rs.54,00,472/-. It was clarified that, under the Agreement, it was only endeavored that possession would be offered within 3 years, but there was no promise that possession would definitely be delivered within any specified time. It was further stated that the possession was offered to the complainant well within the time period, which he had failed to take citing extraneous reasons. It was denied that consideration towards the plot was  paid. It was further stated that certain payments were irregular as was clear from the statement of account dated 2.2.2015 (Exhibit OP/4). It was denied that the complainant gave his consent to participate in the scheme launched by the Opposite Parties by submitting a signed copy. It was further stated that even otherwise, the benefits under the scheme were to be provided only if the complainant continued to make all future payments on time. It was further stated that there was delay in future installments by the complainant and the benefits under the scheme were not applicable to him. It was further stated that the last installment of Rs.2,30,000/- was payable by the allottee alongwith any delayed payment charges levied on account of delay in paying the last installment.

9.           It was further stated that demand raised vide letter dated 10.07.2014 was in terms of the Agreement. It was further stated that the reminder letter(s) dated 4.9.2014 and 22.9.2014 were not having any contradiction. It was further stated that reminder letter dated 4.9.2014 clearly reflected the amount of Rs.12,75,641.50 due besides delayed payment charges of Rs.1,84,310/-, as on 4.9.2014. It was further stated that the said demand letter did not include the amount of Rs.19,412/- and Rs.8,427/- towards monthly maintenance charges, and water charges, respectively. It was further stated that the possession offered, upon completion of amenities as per Clause 23 of the Agreement, was complete. It was further stated that the plea of non-development after nearly 6 years of offer of possession was not only time barred but a mere afterthought. It was denied that the Opposite Parties remained silent till 2014. It was further stated that the complainant was repeatedly asked to take over possession but he neither visited the site nor took over the possession. It was further stated that letter dated 10.07.2014 was sent to the complainant to pay all outstanding dues.

10.         It was denied that no facilities were in existence when the possession was offered to the allottee/complainant in 2009. It was further stated that many other allottees have already taken possession in Sector 109 and some of them have even started construction activity on their plots. It was further stated that the information provided under RTI was incomplete and sent in ignorance of vital facts and law. It was further stated that the Opposite Parties were exempted from obtaining completion certificate under the PAPRA 1995 and, therefore, no reliance could be placed on the information obtained under RTI. It was further reiterated that  Govt. of Punjab had granted exemption to the Opposite Parties from the provisions of PAPRA 1995 vide Notification 18/41/2006-5HG-II/12790 dated 22.12.2006 (Exhibit OP/2). It was further stated that as per reply on behalf of the Chief Administrator, PUDA bearing No.PUDA-STP/2013/4848 dated 10.06.2013 (Exhibit OP/6) sent to the Opposite Parties, they (Opposite Parties) had been granted exemption under PAPRA 1995. It was further stated that the Notification dated 29.10.2013, was not applicable to the project of the Opposite Parties and the same was also contrary to the PAPRA 1995, hence as per Section 43 of PAPRA 1995, the provisions of PAPRA 1995 would override such Notification. It was further stated that layout plans were subject to revision and the same was told to the allottees. It was further stated that till date the complainant did not take possession for the reasons best known to him. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

11.         The complainant filed replication, wherein, he reiterated all the averments, contained in the complaint and repudiated the same, contained in the written version of the Opposite Parties. 

12.         The complainant, in support of his case, submitted his own affidavit, by way of evidence, alongwith which, a number of documents were attached.

13.         The Opposite Parties, in support of their case, submitted the affidavit of Sh. Sachin Kapoor, their Senior Manager (Legal) and Authorized Representative, by way of evidence, alongwith which, a number of documents were attached. 

14.         We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

15.         The Counsel for the complainant submitted that Plot No.165 measuring 400 Sq. Yards was allotted to the previous allottee Sh. J.S. Chopra and Plot Buyer’s Agreement dated 30.6.2007 was executed. He further submitted that total price of the plot, in question, was Rs.54,00,472/- including EDC and PLC. He further submitted that the complainant was intimated regarding increase in area of plot to 443 Sq. Yards, vide letter dated 26.12.2009 (Annexure C-6). He further submitted that as per Clause 6 of the Plot Buyer’s Agreement, sale deed was to be executed and registered in favour of the allottee within six months from the date of intimation after the plot was finally demarcated at the site and after receipt of full sale consideration, EDC, late payment charges, interest and other charges and compliance of all other terms and conditions. He further submitted that as per Clause 8 of the Plot Buyer’s Agreement, possession was to be handed over within a period of two years but not later than three years from the date of execution of the aforesaid Agreement but the possession was not offered within the stipulated period. He further submitted that as per Clause 9, offer of possession was to be given in writing to the allottee to take over possession of the plot within 60 days from the date of such offer and Company was to handover the possession of the plot to the allottee and in the event of failure to take possession of the plot within the aforesaid period of 60 days, the allottee was deemed to have taken the possession of the plot on expiry of 60 days of offer of possession. He further submitted that vide letter dated 10.07.2014, the Opposite Parties raised a demand of Rs.14,62,143.55 from the complainant towards settlement of final dues and intimating that they would be commencing the process of execution and registration of conveyance deed shortly. He further submitted that there was no delay on the part of the complainant in payment of due amounts and, as such, the delayed payment charges to the tune of Rs.1,58,662.11 imposed vide Annexure C-8, were arbitrary and illegal. He further submitted that vide Annexure C-9A, which is letter dated 4.9.2014, the Opposite Parties asked the complainant to remit a sum of Rs.12,75,641.50 and Rs.1,84,310/- towards delayed payment charges as on 4.9.2014, without providing any breakup. He further submitted that vide letter dated 22.9.2014 (Annexure C-9B), the Opposite Parties reiterated their demand of Rs.12,75,641.50 and asked the complainant to remit the same within 30 days, failing which, they threatened to cancel the Buyer’s Agreement  dated 20.07.2007. He further submitted that as was apparent from the statement of account as on 2.02.2015 (Exhibit OP/4), the possession was offered twice i.e. on 31.12.2009 and 12.08.2014. He further submitted that the price of the plot, in question, was arbitrarily enhanced from Rs.54,00,472/- to Rs.59,56,575/-. He further submitted that the complainant had already paid an amount of Rs.57,26,785/- towards the plot. He further submitted that delayed payment charges were also unnecessarily raised. He further submitted that club membership charges in the sum of Rs.1,12,360/- were also not payable. He further submitted that there was no justification of the amount demanded by the Opposite Parties. He further submitted that the Opposite Parties did not produce any document regarding exemption granted to them under PAPRA 1995.

16.         On the other hand, the Counsel for the Opposite Parties, submitted that offer of possession of Plot No.165 to the complainant was given on 29.11.2009 (Annexure   C-6) and reminder was also sent to the complainant on 16.12.2011 (Annexure C-7) subsequent to the offer of possession. He further submitted that the complainant did not raise any protest regarding increase in the area of the plot. He further submitted since the possession was offered in November 2009, the cause of action accrued to  the complainant for filing the present complaint in November 2009, and the complaint, having been filed on 27.11.2014 was palpably time barred.

17.         The core question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was barred by limitation or not. Vide letter (Annexure C-6), possession of the plot, in question, was offered to the complainant, on 29.11.2009 subject to making payment of Rs.5,56,313/- towards the price as per the payment plan, Rs.5,76,801/- on account of additional External Development Charges and Rs.11,122/- on account of delayed interest in making payment of installment.  Admittedly, this letter was received by the complainant and he paid the amount of Rs.5,56,313/- towards the cost of addl. 43 sq. yard area, as is evident from acknowledgment-cum-receipt dated 26.12.2009 (at Page 61 annexed to Annexure C-6).  Not only this, while offering possession vide Annexure C-6, the Opposite Parties also informed the complainant that the development work of road and other basic infrastructure were completed in portions of Augusta Greens, Sector 109, Mohali Hills, where his plot was situated. The complainant was also informed that the Opposite Parties were ready to handover possession of the plot subject to making payments. The complainant was also informed that area of the unit allotted to him, was increased to 443 sq. yards.

18.         Though the complainant in Para 2 of the complaint, stated that the Opposite Parties offered possession vide letter dated 10.07.2014, yet in the same very para, he admitted that the cause of action accrued on 29.06.2010 the date of offer of possession, which continued till 10.07.2014, when demand was raised on completion of site. Para No.2 of the complaint, being relevant is extracted hereunder:-

“That the opposite parties has issued a demand letter and offered the possession vide letter dated 10.07.2014. The cause of action has accrued on 29.06.2010 i.e. the date of possession and continued till 10.07.2014 wherein the demand has been raised on completion of the site and remain continuing till the date of handing over the possession with all amenities after getting the penalty in accordance with clause 8 of the agreement.”

19.        It is evident, that firstly the cause of action to the complainant accrued on 29.11.2009, when he was offered possession of the plot, in question vide Annexure C-6 on making payment on account of amount due towards the same, delayed interest and additional EDC. The complaint was filed on 27.11.2014. The complainant did not accept the offer of possession. No protest was raised by the complainant to the effect that he was refusing the offer of possession as the development was incomplete. There is nothing on record, wherefrom, it could be said that he (complainant) entered into correspondence with the Opposite Parties contesting the payment on account of additional EDC etc. Even if, it is assumed for the sake of arguments, that the infrastructure had not been developed at the site, or there were same deficiencies and drawbacks, in the development of the area, where the plot, in question, is situated, for two years, from 29.11.2009, the complainant could exchange correspondence, with the Opposite Parties, for completion of the same. Nothing has been brought on record by way of cogent and convincing evidence, by the complainant, to prove that he agitated the matter with the Opposite Party on receipt of letter (Annexure C-6). However, within 2 years from 29.11.2009, the complainant was required to file the consumer complaint claiming all reliefs which were available to him. Once, the cause of action, accrued to the complainant, on 29.11.2009 or say 29.06.2010, as admitted by him in Para 2 of the complaint,  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.”

 

20.            The above provision is clearly peremptory, in nature, requiring the Consumer Foras 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. 

21.        The Hon’ble Supreme Court of India, in Kandimalla Raghavaiah & Co. Versus National Insurance Co. Ltd. and another, 2009 CTJ 951 (Supreme Court) (CP) took view of the observations made in a case titled as State Bank of India vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, as under:-

“12. Recently, in State Bank of India Vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, this Court, while dealing with the same provision, has held; 8. 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, hall 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.

 

22.        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”

23.        The afore-extracted paragraph 13 clearly revealed that cause of action firstly arose to the complainant, in 2009, and secondly on 05.03.2012, when it finally refused to return the amount of Rs.23,67,587/-, to  her, inspite of best efforts, made by her, in that regard. Keeping in view the averments, contained in paragraph number 13 of the complaint, in Alka R. Singh’s case (supra), 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 thereof. In those circumstances, it was held by the National Commission that the complaint was barred by time In S.C. Jain Vs. Haryana Urban Development Authority, I (2013) CPJ 138 (NC), Revision-Petition No.789 of 2012, decided on 21.11.2012 by the National Commission, reported as, the facts of the case were that the complainants were offered possession on 6.9.2000 and they filed complaint before the District Forum on 1.2.2005, alleging therein, that they were offered possession of the plot without completing the development works which they did not accept. Thus, they sought interest on the deposited amount from 3.4.2000 (i.e. 2 years after the date of allotment) till the possession of the plot after making development and after providing the basic amenities, around the plot, was delivered. The said complaint was allowed by the District Forum. The appellant HUDA filed appeal before the State Commission against the order of the District Forum, which was accepted by the State Commission, holding that the complaint was barred by time as envisaged by Section 24A of the Limitation Act. Thereafter the complainant filed Revision Petition before the National Commission, which was dismissed by it, vide order dated 21.11.2012. Relevant paras No. 6, and 10 of the said order of the National Commission read as under:-

“6. We have heard the counsel for the petitioners. The complainants were re-allotted the plot on 08.09.1998 and the possession was offered to them on 6.9.2000, whereas the instant complaint was filed on 1.2.2005 with the allegations that the plot was not developed at the time of offer of the possession. The State Forum has placed reliance on State Bank of India Vs. B.S. Agriculture Industries, 2009, CTJ 481 (SC) (CP)=JT 2009(4) SC 191 and V.N. Shrikhande (Dr.) Versus Anita Sena Fernandes 2011 CTJ 1 (Supreme Court) (CP).

10.  In the result, the revision petitions are without merit and the same are therefore, dismissed.”

Still feeling aggrieved, the Petitioner/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 3.1.2014. 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 Commission, 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.

24.        As stated above, once the cause of action, accrued to the complainant, on 29.11.2009, 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 by 28.11.2011, if his grievance had not been redressed, claiming therein any number of reliefs available to him, including the execution of sale deed, but he failed to do so. He could also take all the pleas, which he has taken in the instant complaint. Even the reliefs which have been claimed, by the complainant, in the instant complaint, were available to him on 29.11.2011 i.e. within 2 years of the accrual of cause of action. 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 C-6), in November, 2009 admittedly received by him (complainant), the matter would have been different. In those circumstances, it might have been said that since neither the possession was offered nor delivered, nor sale deed was executed nor the refund was made, and hence the cause of action being continuing, the complaint having been filed on 27.11.2014 was within time. In view of the principle of law, laid down, in the aforesaid cases, it is held that the complaint filed by the complainant, on 27.11.2014, i.e. after the lapse of approximately 3 years of the accrual of cause of action, was palpably barred by time. In these circumstances, the contention of the complainant that there was a continuing cause of action, being untenable is rejected.

 

 

25.         The judgments relied upon by the Counsel for the complainant in M/s New Generation Real Estates Pvt. Ltd. Vs. Ramesh Chander Khurana & 2 Ors., Revision Petition No.1601 of 2014 with IA/2120/2014 decided on 20.11.2014 and Kushal K. Rana Vs. M/s DLF Commercial Complexes Ltd., Consumer Complaint No.88 of 2012 decided by the National Commission on 09.09.2014, being distinguishable on facts, are of no help to the complainant. In M/s New General Real Estates Pvt. Ltd. Vs. Ramesh Chander Khurana & 2 Ors’s case (supra), the National Commission, in Para 16, held that “This is settled Law that the complainants have got continuous cause of action till the sale deed is executed. By no stretch of imagination it can be said that the case is barred by time…”. It is pertinent to mention here that in M/s New Generation Real Estates Pvt. Ltd. Vs. Ramesh Chander Khurana & 2 Ors’s case (supra),, after paying the entire amount, the allottees had taken over the possession of the apartments vide possession letter (OP6) and the registered sale deed was not executed and the occupation certificate was also not obtained, whereas, in the instant case, the complainant did not respond to the offer of possession made by the Opposite Parties within stipulated time on 29.11.2009 vide letter (Annexure C-6) and filed the complaint on 27.11.2014. In Kushal K. Rana Vs. M/s DLF Commercial Complexes Ltd.s case (supra), though the business space was to be handed over within 36 months from the date of execution of the Agreement dated 23.12.2008 yet, admittedly, the same was not ready till 22.12.2011, whereas, in the case, in hand, the possession of the flat, in question, was offered to the complainant within the stipulated time, and, therefore, this authority relied upon by the Counsel for the complainant is also distinguishable on facts.

 

 

26.        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 same 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 in that case 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.”

27.        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 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).

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

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

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

Pronounced.

March  3^rd, 2015

 

Sd/-

 [JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

[DEV RAJ]

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

  

Ad