Chandigarh

StateCommission

A/56/2022

Sovia R. J. Singh - Complainant(s)

Versus

Parkwood Developers Pvt. Ltd. - Opp.Party(s)

Arun Kumar & Varun Bhardwaj Adv.

16 Jan 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	56 of 2022
Date of Institution	:	17.05.2022
Date of Decision	:	16.01.2023

 

 

 

 

 

1]       SOVIA R.J. SINGH W/O RAVINDERJIT SINGH, CHITKARA EDUCATIONAL TRUST, 162-163, MADHYA MARG, SECTOR 9-C. CHANDIGARH.

 

2]       RAVINDERJIT SINGH S/O RAJINDER SINGH, FLAT NO. N-001, PARKWOOD GLADE, SECTOR 116, KHARAR LANDRAN ROAD, MOHALI.

 

…..APPELLANTS

VERSUS

 

1]       PARKWOOD DEVELOPERS PVT. LTD. REGISTERED OFFICE AT 1101. HEMKUNT CHAMBER, 89, NEHRU PLACE, NEW DELHI-110019 TROUGH ITS DIRECTOR/AUTHORIZED SIGNATORY.

 

2]       HARPREET SINGH, MANAGING DIRECTOR, PARKWOOD DEVELOPERS PVT. LTD, REGISTERED OFFICE AT 1101, HEMKUNT CHAMBER, 89, NEHRU PLACE, NEW DELHI-110019.

 

3]       DAKSHDEEP SINGH, DIRECTOR, PARKWOOD DEVELOPERS PVT. LTD. REGISTERED OFFICE AT 1101, HEMKUNT CHAMBER, 89, NEHRU PLACE, NEW DELHI-110019.

……RESPONDENTS

 

 

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                  MR. RAJESH K. ARYA, MEMBER

 

Argued By:-      

Sh. Arun Kumar, Advocate for the appellants.

Sh. I. P. Singh, Advocate for the respondents (on VC).

 

 

 

 

 

PER  RAJESH K. ARYA, MEMBER

                    This appeal has been filed by the complainants, namely, Sovia R. J. Singh and Ravinderjit Singh (appellants herein) against order dated 21.04.2022 passed by District Consumer Disputes Redressal Commission-II, U.T., Chandigarh [in short ‘District Commission’], whereby their consumer complaint No.250 of 2021 has been dismissed by the said District Commission  being barred by observing in Para 5 of its order as under:-

“5.          A perusal of the documentary evidence on record shows that the complainants were handed over the possession of the property in question by the OPs in the year 2012.  As per terms and conditions of the Maintenance Agreement dated 29.07.2012 (Annexure C-10) executed between the complainants and the OP-Company, the complainants were bound to pay the maintenance charges to the OPs. Besides this, the complainants never filed any complaint regarding the charging of the maintenance charges by the OPs before any competent authority till the filing of the present complaint and rather preferred to keep silence for such a long period. The perusal of the record further shows that the amount towards the excessive area, was paid by the complainants under protest in July, 2012 and as such the cause of action, if any, arose to the complainants on very particular date but no such complaint has been filed by the complainants in any appropriate court of law. As per the provisions of Section 69 of the Consumer Protection Act, 2019, a complaint can be filed within two years from the date on which the cause of action has arisen which in the present complaint has expired in the way back. Moreover, the complainants have failed to give any sufficient cause for not filing the present complaint within the limitation period of two years as prescribed under the provisions of the Consumer Protection Act, 2019.”

2.                The order of District Commission has been assailed by the complainants on the ground that the complaint was very well within the period of limitation as since 2012 till 2021, the appellants are continuously writing letters and emails to the respondents for rectifying the defects in their flat as well as for providing the basic amenities as committed and agreed by the respondents at the time of executing the Flat Buyer Agreement but they have failed to rectify the same and provide the said basic amenities.

3.                On the other hand, on behalf of the respondents, it has been argued that the District Commission rightly dismissed the complaint being time barred vide the order impugned and the complainants have failed to make out any ground for setting aside the same through present appeal. 

4.                The moot question which falls for consideration is as to whether the District Commission was right in dismissing the complaint being barred by limitation or not.

5.                After considering the rival contentions of the parties and going through the material available on record, we are of the concerted view that the District Commission has erred in dismissing the complaint being barred by limitation, for the reasons to be recorded hereinafter. It may be stated here that admitted, the complainants in the present case have leveled allegations against the opposite parties to the effect that though possession had been delivered in the year 2012 yet still there are alleged shortcomings with regard to proper parking facility, construction of swimming pool, operational club house etc. It is significant to mention here that a similar question with regard to limitation fell before the Hon’ble National Commission in the case of RITA CHATTERJEE & ANR Vs.  BENGAL AMBUJA HOUSING DEVELOPMENT LTD. & 3 ORS., First Appeal No.1042 of 2015 decided on 30.03.2017 wherein it was held that irrespective of the fact that possession is delivered and sale deed is executed, even then, if basic amenities are not provided at the project site, still there will be a cause of action in favour of the allottee/complainant qua that extent only. Relevant part of the said order is reproduced hereunder:-

“4.       Since the controversy in the present Appeal lies in a narrow compass and is confined to the question as to whether or not the Complaint was barred by limitation, we deem it unnecessary to state the facts, occasioning the filing of the Complaint, in detail.  It would suffice to note that having been put in possession of the flat in question on 23.09.2000 and the conveyance deed in respect thereof having been executed in their favour, the Complainants seem to have requested Opposite Party No.1, namely, Bengal Ambuja Housing Development Ltd., a joint venture enterprise of the West Bengal Housing Board and Gujarat Ambuja Cement Ltd., to furnish certain documents, including the Building Completion Certificate, and also to adequately compensate them for not providing an Auditorium and Health Spa in the Unnayan Complex, as promised in the brochure issued at the time of launch of the project as also in the general terms and conditions, allegedly supplied to the allottees of the flats.  Having failed to elicit any positive response from the said Opposite Party, the Complainants filed the Complaint before the State Commission, praying for reliefs on several counts, as mentioned in the prayer clause therein.

5.       On service of notice in the Complaint, instead of filing its Written Version, Opposite Party No.1, Respondent No.1 herein, preferred to file the afore-stated Application seeking dismissal of the Complaint on the ground that the possession of the flat having been delivered to the Complainants in the year 2000, the Complaint filed in the year 2014 was miserably barred by limitation.  It is on this Application that the order impugned in this Appeal has been passed by the State Commission. Hence, the Appeal.

6.       We have heard Complainant No.2, who appears in person, and Mr. Ghosh, learned Counsel appearing for all the Respondents, at some length.  We have also perused the Complaint and the supporting documents on record, in particular the afore-noted brochure; the general terms and conditions as also the covenants in the conveyance deed dated 26.03.2002,  defining the Complex in question, viz., Udita Complex, we are of the opinion that regard being had to the nature of relief claimed in the Complaint, some part of the cause of action  still continued in favour of the Complainants, even after taking possession of the flat in question and execution of the conveyance deed in respect thereof.  Hence, it was not a case where the Complaint could be dismissed at the threshold even without calling upon the Opposite Parties to state their stand in respect of each of the claims made by the Complainants in the Complaint.  At this juncture, we say no more lest any observation on the merits of the reliefs claimed in the Complaint may cause prejudice to either of the parties.”  

6.                Even in the case of The Managing Dircetor (Shri Grish Batra), M/s. Padmini Infrastructure Developers (I) Ltd., Civil Appeal No.2998 of 2010 decided by Hon’ble Supreme Court on 28.09.2021, the Hon’ble Apex Court has held that since there were specific obligations to be performed by the opposite party under the said Agreement, in relation to certain services, therefore, the cause of action for the complaint, as per the clauses continued after the date of the agreement.

7.                Moreover, there is sufficient material available on record to establish that since November 2012 till December 2019, as is clear from letters/emails, Exhibit C-15 and thereafter, there is a continuing cause of action in favour the appellants/complainants and the complaint having been filed before the District Commission on 21.04.2022 is well within limitation. Therefore, in view of the settled law in cases of RITA CHATTERJEE & ANR (supra) and The Managing Dircetor (Shri Grish Batra) (supra) and on the basis of material available on record, the District Commission has wrongly dismissed the complaint of the appellants on this score.

8.                However, the judgments relied upon by the Ld. Counsel for the respondents in cases titled Kandimalla Raghavaiah & Co. Vs. National Insurance Co. & Anr., 2009 (7) SCC 768; State of Tripura and others Versus Arabinda Chakraborty and others, 2014 AIR (Supreme Court) 3570; Champaben Atmaram Thakron Versus Regional Provident Fund Commissioner & Anr., 2015 (1) C.P.J. 131 (NC); Vandana Agarwal Versus Mahagun Developers Ltd. & Ors., 2012 (4) C.P.J. 98 (NC) and Harpal Arya Versus Housing Board Haryana Estate Manager, Revision Petition No.3338 of 2007 decided by Hon’ble National Commission on 04.01.2016, being distinguishable on facts are of no help to the respondents.

9.                For the reasons recorded above, the appeal filed by the appellants – complainants is accepted and the impugned order is set aside. The matter is remanded back to the District Commission-II, U.T., Chandigarh for adjudication on merits in accordance with law, after giving due opportunity of filing reply, evidence etc. It is made clear that any observations made by this Commission in this order shall not affect the merits of the case. Both the parties are directed to appear before the District Commission-II, U.T., Chandigarh on 31.01.2023.

10.              Certified copy of this order along-with complete record be sent to the District Commission-II, U.T., Chandigarh so as to reach there well before the date fixed i.e. 31.01.2023.

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

12.              Copies of this order be also sent to the parties/Counsel through email/whatsapp.

 

13.              File be consigned to Record Room, after completion.

Pronounced

16.01.2023.

 

(RAJ SHEKHAR ATTRI)

PRESIDENT

 

 

 

(RAJESH K. ARYA)

MEMBER

 

 

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