State Consumer Disputes Redressal Commission
Ashutosh Johri Son Of Shri N.B. Johri, ... vs 1.M/S Bestech India Pvt. ... on 11 December, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA Complaint No.22 of 2011 Date of Institution: 01.06.2011 Date of Decision: 11.12.2012 Ashutosh Johri son of Shri N.B. Johri, R/o House No.74, Birch Court, Nirvana Country, South City Part 2, Gurgaon. Complainant Versus 1. M/s Bestech India Pvt. Ltd. having its registered office at 1/2873, Ram Nagar, Loni Road, Shahdara, New Delhi. 2. M/s Bestech India Pvt. Ltd., having its head office at Bestech House, 124, Sector 44, Gurgaon Haryana. 3. Deutsche Post Bank Home Finance Limited (Earlier known as BHW Home Finance Ltd.) having Registered Head Office at B-6/7, DDA Community Center, Opposite Deer Park, Safdarjung Enclave, New Delhi-110029. 4. Deutsche Post Bank Home Finance Limited (Earlier known as BHW Home Finance Ltd) at 129A-129D, Ist Floor, VIPUL AGOR, M.G. Road, Gurgaon, Haryana. Opposite Parties BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri Gaurav Goel, Advocate for Complainant. Shri Sanjay Vij, Advocate for O.P. No.1 & 2. Shri Pradeep Prakash Chahar, Advocate for O.P. No.3 & 4. O R D E R
Justice R.S. Madan, President:
The case set up by the complainant is as under:-
Complainant had purchased a residential flat No.1406, Tower No.6, 14th floor Group Housing Complex known as park View Residency, Gurgaon having super area of 1325 Sq. fts (123.10 Sq. mtrs) and a terrace area of 112 Sq. Fts (10.41 Sq. mtrs) approximately from the original allottee namely Subhash Ahuja for a consideration of Rs.21,93,336/- to purchase the allotment rights. The original allottee got transferred the flat in question in favour of the complainant vide allotment letter dated 06.12.2006 (Annexure C-1). Opposite Parties No.1 and 2, executed and signed Flat Buyers Agreement dated 23.02.2007 (Annexure C-2) in favour of the complainant for the consideration of Rs.38,81,154/- (including the amount payable towards car park, club membership and interest free maintenance security and out of that Rs.16,13,110/- was already paid by the original allottee Subhash Ahuja and the rest of the amount was to be paid to the opposite parties No.1 and 2 by the complainant after the execution of Flat Buyers Agreement. Complainant deposited Rs.2,97,023/- towards the cost of the flat to the opposite parties No.1 and 2 on 28.02.2007 and thus the total amount paid towards the cost of the flat was Rs.19,10,133/- to the opposite parties No.1 and 2.
The complainant arranged the finance from the opposite parties No.3 and 4 as Housing Loan which was duly sanctioned on 18.10.2006 for Rs.42,50,000/- for purchase of the above said flat. After the sanctioning and disbursement of the loan, the complainant started paying the EMI to the opposite parties No.3 and 4 as per the terms and conditions of the loan agreement and till 17.02.2011, the complainant made payments of Rs.8,38,639/- to the opposite parties No.3 and 4 towards the loan account.
The grievance of the complainant is that he was shocked to know from the contents of Email dated 19th of March, 2010 sent by Ms. Ankita Sahni, Manager (Customer Service) of opposite parties No.1 and 2 that the allotment of the flat was cancelled. She further informed that to activate the transaction, an amount of Rs.34,10,828/- was to be remitted which included an exorbitant amount of Rs.8,38,000/- towards alleged interest and further amount of Rs.1,56,600/- as alleged activation charges. According to the complainant, after receiving the said E-mail, he personally tried to contact the customer service of opposite parties No.1 and 2 who did not pay any heed to the complainant. Thereafter, complainant approached opposite parties No.3 and 4 regarding the status of loan account and came to know that the opposite parties No.3 and 4 had stopped making payment of instalments towards the cost of the flat to the opposite parties No.1 and 2, which were to be paid to the opposite parties No.1 and 2 directly. Complainant alleged that opposite parties No.3 and 4 violated the terms and conditions of the Tripartite Agreement which amounts rendering the deficient services to the complainant which caused great financial loss and mental harassment to the complainant. According to the complainant, he had been making payment of EMI as and when become due with the opposite parties No.3 and 4. Legal Notice through registered post was also served upon the opposite parties No.1 and 2 on 19.10.2010 the reply of which dated 08.11.2010 was received by the complainant but without any fruitful results. Thus, alleging deficiency in service and unfair trade practice on the part of the opposite parties, the complainant has filed the instant complaint seeking direction to the opposite parties No.1 and 2 to restore the allotment of the flat in favour of the complainant without charging any interest or penalty and further to waive the exorbitant and illegal penalty and activation charges amounting to Rs.9,94,600/- which was demanded by the opposite parties No.1 and 2 through e-mail dated 19.03.2010; to pay cost of the flat of Rs.24,16,228/- due towards opposite parties No.1 and 2 alongwith interest or charge; to pay Rs.5,00,000/-
for mental torture and physical harassment and Rs.20,000/- as litigation charges.
Opposite Parties No.1 and 2 in their joint written statement stated that the allotment of the flat was cancelled on 03.12.2008 on account of non-performance and non-observance of the terms and conditions of the Buyers Agreement by the complainant and thus the complaint was barred by limitation. On account of failure on the complainant to make timely payment of instalments towards the cost of the flat as per the terms and conditions of the flat Buyers Agreement, the opposite parties No.1 and 2 had informed the complainant vide letter dated 03.12.2008 whereby the complainant was asked to surrender all original documents to the opposite parties in order to expedite the refund of the deposited amount after making necessary deductions as per the terms and conditions of the Flat Buyers Agreement dated 23.02.2007.
Opposite Parties No.3 and 4 while resisting the claim of the complainant have stated that they had sanctioned the loan of Rs.42,50,000/- to the complainant out of which the amount of Rs.21,93,336/- was disbursed to complainant for the payment of purchase price of the referenced property and the remaining amount was to be paid on the demand raised by the complainant directly to the opposite party No.2 (Builder) as and when the same fell due but the complainant after receiving the disbursed amount never asked/approached the opposite parties No.3 and 4 to disburse the instalments in favour of Builder. Thus, denying any kind of deficiency in service on their part, the opposite parties No.3 and 4 prayed for dismissal of the complaint.
In evidence the complainant has tendered his own affidavit Ex.CW1/A alongwith documents Ex.C9 and Ex.C-10 as well as already annexed documents as Ex.C1 to Ex.C8. Opposite Parties in their evidence tendered affidavits of Ms. Shavita Raina (G.M. Legal) as Ex.OP-1/A and Bhupinder Singh as Ex.OP-3/A. We have heard learned counsel for the parties and perused the case file.
At the very outset the question for consideration before us is whether the complaint is within limitation as prescribed in Section 24A of the Consumer Protection Act, 1986.
It is established on the record that the original allottee had transferred the flat in question in favour of complainant vide allotment letter dated 06.12.2006 (Annexure C-1). Opposite Parties No.1 and 2, executed and signed Flat Buyers Agreement dated 23.02.2007 (Annexure C-2). According to the complainant he had come to know about the cancellation of his flat after receiving the Email dated 19th of March, 2010 which was sent by Ms. Ankita Sahni, Manager (Customer Service) of opposite parties No.1 and 2. However, according to the opposite parties No.1 and 2 the flat was cancelled on 03.12.2008 as the instalments in respect of the flat in question were not being paid as per terms and conditions of the Buyers Agreement. It is also the case of the opposite parties No.1 and 2 that they had informed the complainant vide letter dated 03.12.2008 in this regard whereby he (complainant) was asked to surrender all original documents with respect to the flat in question. The contention of the complainant that he had come to know about the cancellation of his flat for the first time through E-mail dated 19th of March, 2010, is not acceptable in view of the documents Annexure R-1/1 to Annexure R-1/5 which were sent by the opposite parties No.1 and 2 to the complainant through Registered Post. Annexure R-1/1 is First Reminder dated 26.11.2007 whereby the complainant was requested to remit a sum of Rs.3,79,186.24. Similarly, vide Second Reminder Annexure R-1/2 the complainant was requested to remit a sum of Rs.3,79,186.24. Annexure R-1/3 is the Notice dated 31.10.2008 with respect to the cancellation of flat whereby the complainant was requested to deposit the due amount towards his flat. The relevant part of the above said notice is as under:-
We request you to kindly remit the total outstanding of Rs.13,15,111/- (Rupees Thirteen Lacs Fifteen Thousand One Hundred Eleven only) along with the due interest before November 10, 2008; otherwise we will be forced to cancel your subject booking.
The complainant was served with Final Call Notice dated 14.11.2008 to deposit the amount of Rs.13,15,111/- but he failed and accordingly vide letter dated 03.12.2008 the allotment was cancelled. Keeping in view the facts and circumstances of the case it cannot be said that the complainant was not aware of the cancellation of his flat before Email dated 19th of March, 2010. Thus, it is established on the record that the allotment of complainants flat was cancelled on 03.12.2008 due to default on complainants part and therefore the instant complaint filed by the complainant on 01.06.2011 is not maintainable being barred by limitation in view of the provision of Section 24A of the Consumer Protection Act, 1986 whereby a period of two years has been provided to file complaint from the date of cause of action, which admittedly in the instant case had arisen to the complainant on 03.12.2008 when allotment of his flat was cancelled. The complainant cannot take the shelter of the alleged Email dated 19th of March, 2010 because the subsequent correspondence cannot extend the period of limitation.
For the reasons recorded above, this complaint is dismissed being barred by limitation.
Announced: Justice R.S. Madan 11.12.2012 President B.M. Bedi Judicial Member