Date of Filing:06.12.2022

Date of Disposal:31.05.2023

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

ORDER

SRI RAMACHANDRA.M.S,PRESIDENT

1. The complainants files a complaint with this Commission under Section 35 of the Consumer Protection Act of 2019 against the OP for deficiency of service with a direction to OP to pay a sum of Rs.1,85,500/- along with interest at the rate of 24% p.a. from 17.06.2013 , Rs.25,000/- for the deficiency of service, Rs.25,000/- for mental agony and harassment, Rs.25,000/- towards cost of litigation and such other reliefs.

2.  The following are the complaint's key facts:

This is the case of the complainant that the complainant has participated in the sale auction of house whichhas conducted by OP company as a secured creditor of loan accounts of bank. The auction of the house bearing no.408,3^rd floor, Tribuvan park view, Doddabommsadra, Yelahanka hobli, Bengaluru north Tq. The complainant has participated in the public auction (online) which was held by OP pertaining to the loan account No.LBBNG00001371888 at their branch office on 21.02.2013. The complainant being the highest bidder in the said auction,the sale of auction pertaining to the said property isconfirmed in favour of the complainant and a letter is also issued by OP on 16.06.2013 and the total bid amount is fixed for Rs.28,60,000/-. Since, the sale was confirmed in favour of the complainant, complainant had to pay stipulated EMD of Rs.1,85,500/- on 01.02.2013. After the said bid on 21.02.2013 in the month of March 2013 the complainant was unable to make balance payment to the OP to make full payment of the bid amount due to health issues of his father. Thereafter on 12.04.2013, the said OP had requested the complainant to make full payment within 07 days, but the complainant has sought 03 months time for payment by explaining health issues of his father. OP did not considered the request of the complainant and on 01.07.2013 the OP issued notice to the complainant, wherein they have requested the complainant to make the full payment in respect of sale auction pertaining to the property. Upon the request of the complainant the OP has intimated the complainant that in failure to make balance payment EMD amount which is paid by the complainant will be forfeited and also they proceed to public resale of the said property specifically. By intimating the same, the OP has forfeited the EMD amount which hashas paid by the complainant. Aggrieved by the action by OP the complainant filed present complaint against the OP for deficiency of service and Unfair business practice.

3. Notice to OP-duly served, remained absent and placed exparte.

4. The complainant filed chief-examination affidavit along annexure documents- A to H in support of their pleadings.

5. Heard arguments. The matter is reserved for order.

6. The points that arise for our consideration are;

1. Complaint is barred by limitation?
2. Whether the Complainant prove that there is deficiency in service on the part of the OP as alleged in the complaint and thereby prove that he is entitle for the relief sought?
3. What order?

7. The findings on the above points are as under:

Point No.1                :Affirmative

Point No.2                 :In view of the findings given in point no.1 point no. 2 & 3 does not arise for consideration.

Point No.3                 : What order?

REASONS

8. POINT NO.1:-From the perusal of the complaint averments and also allegations and by taking note of the events which took place between the parties, the Commission observed as follows that the complainant has participated in the sale auction of house which  was conducted by OP company as a secured creditor of loan accounts of bank. The auction of the house bearing no.408,3^rd floor, Tribuvan park view, Doddabommsadra, Yelahanka hobli, Bengaluru north Tq. The complainant has participated in the public auction (online) which is held by OP pertaining to the loan account No.LBBNG00001371888 at their branch office on 21.02.2013. The complainant being the highest bidder in the said auction,  the sale of auction pertaining to the said property is  confirmed in favour of the complainant and a letter is also issued by OP on 16.06.2013 and the total bid amount is fixed for Rs.28,60,000/-. Since, the sale was confirmed in favour of the complainant, complainant had to pay stipulated EMD of Rs.1,85,500/- on 01.02.2013. After the said bid on 21.02.2013 in the month of March 2013 the complainant was unable to make balance payment to the OP to make full payment of the bid amount due to health issues of his father. There after on 12.04.2013 the said OP had requested the complainant to make full payment within 07 days, but the complainant has sought 03 months time for payment by explaining health issues of his father. OP did not considered the request of the complainant and on 01.07.2013 the OP issued notice to the complainant, wherein they have requested the complainant to make the full payment in respect of sale auction pertaining to the property. Upon the request of the complainant the OP has intimated the complainant that in failure to make balance payment EMD amount which is paid by the complainant will be forfeited and also they proceed to public resale of the saidproperty specifically. By intimating the same, the OP has forfeited the EMD amount which has been paid by the complainant. Aggrieved by the action by OP the complainant should have filed the complaint well within 02 years from the date of actual  accrual of  cause of action on 01.07.2013. The calculation of limitation to file the complaint should have been calculated from the date of actual accrual of the cause of action and it has to be filed  well within  02 years from the date as per section 69 of C.P.Act, 2019. In the complaint the complainant as aggrieved by the action taken by the OP he should have initiated complaint before this commission well within 02 years from the date i.e. on 01.07.2013. The calculation of limitation should not be as per the convenience of the parties in order to suit the limitation. The cause of action to file the complaint should be calculated from the averments of the complaint and also on the facts of the case. The commission has observed that even though it is bounden duty of  the complainant to mention the date of accrual of cause of action to file the complaint. Here, there is no whisper in so far the cause of action to file the complaint is concerned. Here, in this complaint from the perusal of the complaint averments and the facts it is crystal clear that the limitation to file the complaint should have been accrued on 01.07.2013 as per the facts of the case. Here the complainant has taken date of the last communication which is issued by OP  for the purpose of calculation of limitation. Annexure document which is produced in the complaint, where it has been marked as Annexure-E dt.01.07.2022, in this reply letter the OP has referred the earlier date 17.06.2013 on which intimation letter has already sent regarding forfeiture of EMD amount. This annexure document and the letter which is issued by OP is only the reiteration of facts which is stated on 17.07.2013.  When such being the case the date of cause of action which is mentioned in the complaint cannot be considered. By way of this intimation letter dt.01.07.2022,  the limitation to file the complaint cannot be revived, which is already barred by limitation.  The complainant has not at all made any attempts to assign any reasonable cause for the  inordinate delay in filing the present complaint. There  is8 years inordinate delay to file the complaint that  cannot be condoned in absence  of any reasonable cause. As per the rulings laid down by the Hon’ble Supreme Court of India each day delay in filing the complaint needs to be explained with reasonable  and sufficient cause to the satisfaction of the court. When such being the  case in the circumstance of the case and also by considering the facts of the complaint and by taking note of events which took place between the parties, it is clear that the present complaint is filed after lapse of limitation period of 02 years.  As Such the complaint deserves to be dismissed as it is barred by limitation. Accordingly,  the Point No.1 we answer affirmative.

9. POINT NO.2:-In view of the findings given in point no.1,point no. 2  does not arise for consideration.

10. POINT NO.3 In the result, we passed the following:

                             ORDER

1. The complaint is hereby dismissed as barred by limitation.
2. Furnish free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 31^stMay 2023)

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)       

 MEMBER                                  MEMBER

Witness examined on behalf of the complainant by way of affidavit:Sri Ramesh.P.-who being the complainant

Documents produced by the complainant:

Witness examined on behalf of the OP by way of affidavit:Nil

Documents produced by the OP: Nil

(RAMACHANDRA M.S.)

PRESIDENT

(NANDINI H KUMBHAR)          (CHANDRASHEKAR S.NOOLA)

         MEMBER                                     MEMBER

SKA*