State Consumer Disputes Redressal Commission
Surinder Pal Monga vs M/S Royale Mansions on 19 December, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 36 of 2017
Date of Institution : 25.01.2017
Date of Reserve : 05.12.2017
Date of Decision : 19.12.2017
Surinder Pal Monga s/o Sh. Des Raj Monga, r/o Flat No. A-201,
Royale Mansions, Peer Muchhalla, (Adjoining Sector 20,
Panchkula), Zirakpur, District Mohali (India).
....Complainant
Versus
1. M/s Royale Mansions, Peer Muchhalla, (Adjoining Sector 20,
Panchkula), Zirakpur, District Mohali (India) through its Partners.
2. Sh. Ashok Singla R/o Kothi No. 11, MS Enclave, Near Saint
Soldier School Dhakoli (Zirakpur) - Present Partner M/s Royale
Mansions.
3. Sh. Surinder Bansal R/o H. No. 1416, Sector 40 B,
Chandigarh (Present Partner M/s Royale Mansions).
4. Smt. Promila Singla W/o Sh. Ashok Singla R/o Kothi No. 11,
MS Enclave, Near Saint Soldier School, Dhakoli (Zirakpur) -
Present Partner M/s Royale Mansions.
5. Sh. Mohit Aggarwal R/o H. No. 20, Pocket B-8, Sector - 19,
Rohini, New Delhi - (Present Partner M/s Royale Mansions).
6. Sh. Jeevan Garg R/o H. No. 505, Sector 21, Panchkula -
(Previous Partner M/s Royale Mansions)
Consumer Complaint No. 36 of 2017 2
7. Sh. Prince Garg R/o H. No. 505, Sector 21, Panchkula -
(Previous Partner M/s Royale Mansions).
....Opposite parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
Present:-
For the complainant : Sh. Parvesh Saini, Advocate
For opposite parties No.1 to 4: Sh. Parveen Gupta, Advocate
For opposite parties No. 5 to 7:Ex.-parte.
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
The complainant has filed this complaint under Section 17 of the Consumer Protection Act against the opposite parties (hereinafter referred as Ops) on the averments that originally Ops No. 6 & 7 started a group housing project known as Royale Empire Luxury Apartments, Peer Muchhalla, Zirakpur, District Mohali in the year 2011. It was a partnership firm, namely, Royale Empire. The plan of the said project was approved by Municipal Council, Zirakpur on 28.7.2011, subject to the conditions mentioned in the PUDA Letter No. CTP (SS)-11/497 dated 8.4.2011. Impressed with the amenities and other specifications given by the Ops, the complainant agreed to purchase 4 BHK flat in the said project and made an advance payment of Rs. 10 Lacs as pre-booking money Consumer Complaint No. 36 of 2017 3 of a flat for Flat No. 201, Block A. Then buyer's agreement dated 13.5.2011 was executed between the complainant and Op Nos. 6 & 7 for a total sale consideration of Rs. 52,00,000/- with covered area of 1800 sq. ft. and 2550 sq. ft. as super area and possession was to be delivered within 21-24 months from the date of agreement and allotment letter dated 13.5.2013 was issued by Op Nos. 6 & 7. On 26.1.2012, Op Nos. 6 & 7 without any notice to the complainant hatched their conspiracy in connivance with Op Nos. 2 to 5 and handed over the project to his relatives Ashok Singla Op No. 2, Surinder Bansal, Op No. 3, Smt. Promila Singla Op No. 4, Mohit Aggarwal Op No. 5 in violation of Section 11 of the PAPRA. After taking over the project, Op Nos. 2 to 5 issued a letter apprising the complainant that they had taken over the project and that the complainant is to enter into fresh agreement between 10 days. In case agreement to sell is not executed then the paid up amount shall forfeit and flat shall stand cancelled. Having no other option, the complainant signed subsequent agreement dated 2.3.2012. At that time, the first original agreement was taken by them without making any reference in the subsequent agreement with regard to cancellation of the first agreement. The project was stopped so many times in mid way due to quarrel between Op Nos. 6 & 7 and Op Nos. 2 to 5 and at one time the account of Op No. 1 in Central Bank of India was also seized. The complainant visited Ops many times to complete all the amenities as mentioned in the previous agreement, however, Ops showed their inability to complete the abovesaid amenities and in case he wanted Consumer Complaint No. 36 of 2017 4 possession of the house, he will have to enter into fresh agreement. Since it was difficult for him to live in rented accommodation, therefore, subsequent agreement dated 6.7.2014 was executed, reducing the price of the flat as Rs. 49,50,000/-. In pursuance of the said agreement, the complainant paid excess payment of Rs. 4,21,680/- i.e. Service Tax of Rs. 1,60,680/-, EDC/IDC of Rs. 1,50,000/-, advance maintenance charges of Rs. 48,000/- for two years, Rs. 10,000/- as one time society membership and excess payment of Rs. 53,000/-, as all these taxes and services were inclusive in the total price of Rs. 49,50,000/-. Moreover, as per Section 9 read with Section 2(m),
(n), (p) & (r) of PAPRA, EDC/IDC is applicable on colonies and service tax is the liability of the builder. Ops were supposed to complete/provide the possession on or before 13.5.2013. As per Clause No. 12 of the agreement, if there is any delay in giving the possession of the flat to the complainant, Ops would be liable to pay Rs. 8925/- per month to the complainant. The Ops in the agreement provided 18% interest on delayed payment, therefore, delay in delivery of possession cannot be merely approx 2.82% p.a. As per the agreement, the Ops were to provide Health Club, Gym, Community Centre and shopping complex but no such facility was provided except a community hall. There is no provision of swimming pool, it is just a pit of 10 meters x 10 meters. Fire hydrant system has not been provided; individual garbage duct in each flat has not been constructed; no WiFi facility and no sufficient car parking whereas Municipal Byelaws provided atleast 1 car Consumer Complaint No. 36 of 2017 5 parking with each 1000 sq. ft. area; no sufficient power back up; 10 years insurance policy; no electronic security with CCTV; no EPABX system, no Fancy lights; no earthquake resistant RCC frame, no quality of kitchen and its accessories; local/substandard paint has been used; no independent garbage duct has been provided; two lifts have been provided, one is local and one sub standard. The complainant alongwith other residents have been raising these issues during various joint meetings between the residents and the builder. However, the Ops have ignored all the requests made for early completion of these amenities. Ops had offered 176 flats + 25 EWS + 3 shops but they have now built 234 flats + 25 EWS. In that way, the common land has been reduced. It is clear from the revised sanction plan by M.C. Zirakpur in April, 2015. In that way, the cost of the flat will decrease. The Punjab Pollution Control Board has also filed a complaint against them under Section 15 & 16 of the Environment (Protection) Act, 1986 read with Section 5 & 19 vide case No. 62/10.6.2013 in the Hon'ble Court of Sub Divisional Judicial Magistrate, Derabassi. Mobile tower has been installed at the top floor of G Block despite the fact that building is structurally weak and there is danger to the life and properties of all the residents. Even NOC from all the occupants and NOC of the Society has not been taken. Therefore, it is not free from all safety hazards whereas Op is earning money at the cost of safety of the residents. Legal notice dated 9.4.2015 was sent on behalf of Royale Mansions Residents Welfare Association. The complainant also raised the issue of illegal construction that Consumer Complaint No. 36 of 2017 6 Ops raised 3 additional floors raising upto 9th floor whereas originally only 6 floors were sanctioned. Alleging unfair trade practice and deficiency in service on the part of Ops, complaint has been filed seeking following directions against the Ops:-
1. i) Pay the compensation @ 18% P.A. on delayed possession which cannot be merely approx 2.82% P.A. in view of clause 4 (d) of the agreement, dated 10.3.2012 according to which interest payable by the complainant on delayed payment is 18% P.A. As per various decisions like by CCI Belairs Owners' Association Vs. DLF in case No. 19/2010 dt. 3.1.2013 that it should be the same both way i.e. compensation must be 18% on delay in possession as well as interest to be paid on delay in payment & it cannot be one sided. Accordingly, the complainant is entitled to compensation @ Rs. 8925/- per month for delayed period as well as interest @ 18% on the amount of Rs.
49,50,000/- paid by the complainant to the Ops which are as under:-
(i) Compensation = Rs. 8925/- x period of delay
(ii) Interest = 18% of Rs. 49,50,000/-
i.e.
(i) Compensation = Rs. 8925 x 15 = Rs. 1,33,875/-
(ii) Interest = 18% of Rs. 49,50,000/- = Rs. 1782000/- Total (i) Rs. 1,33,875/- + (i) Rs. 1782000/- = Rs. 1915875/-
Consumer Complaint No. 36 of 2017 7
ii) Refund of Rs. 4,21,880/- with 18% interest (i.e. Rs. 151804) illegal additional charges taken in the name of Service Tax of Rs. 1,60,680/-, EDC/IDC of Rs. 150000.00 in place of Municipal Council & Electrical Charges, & also added Advance Maintenance Charges of RS. 48000.00 for two years, Rs. 10000.00 as one time society membership fee (non refundable/non transferable) & excess Payment of Rs. 53,000/- which the Ops No. 1 to 5 are not entitled for as held in order dated 24.3.2015 passed by the Hon'ble District Consumer Disputes Redressal Forum, SAS Nagar, Mohali in complaint case No. CC/642/2014 as well as held by this Commission in Consumer Complaint No. 103 of 2014, decided on 6.1.2016 titled as Mohan Lal Singla and another Versus M/s Royal Mansions Peermuchalla, Zirakpur and others, under similar circumstances.
2. Direction to the Ops No. 1 to 5 be given for providing the following basic amenities and facilities which they are under statutory obligation to provide as prescribed in the terms and conditions of the agreement but not provided:-
(1) As per the agreements by the builders, Health Club, Gym, Community Center and shopping complex were supposed to be provided in the complex but no such facilities have been provided except a small community hall. Despite the recovery of Rs. 10000/- on account of club membership, absolutely no facility has been provided in the name of club. This clearly falls under the category of Consumer Complaint No. 36 of 2017 8 embezzlement of funds which is illegal and liable for immediate refund.
(2) Provision of swimming pool: a pit of 10mtrsx10mtrs has been constructed but no pipeline/drain/stairs etc. has been provided. It is a dummy construction to fool the residents. (3) Fire hydrant system has not been provided so far. This is also illegal to give possessions without providing mandatory safety provisions.
(4) Individual garbage duct to each flat has not been constructed nor any provision for garbage disposal has been made so far.
(5) Intercom and WiFi facilities not yet provided but agreed to all residents through agreements.
(6) Sufficient car parking not available for each flat.
Residents are still struggling for covered car parking. Two Covered & Marked Car Parking Space may be allotted without any charge as given in Municipal Bye Laws that atleast one parking with each 1000 sq. ft. area & being area more than 1000 sq. ft.; it must be two parkings there earmarked.
(7) Sufficient power back up not provided as per newspaper advertisement 5 KV per unit power backup had to be provided. As he has constructed 259 units, therefore, 259x5 = 1295 KV back up is required while only 250 KV back up has been provided. Rest 1045 KV has to be provided.
Consumer Complaint No. 36 of 2017 9(8) No electronic security with CCTV (9) No EPABX system (10) No individual 10 year Flat insurance policy is provided (11) No Fancy Lights (12) Earthquake resistant RCC frame structure as per Seismic Zone - V was to be provided (but it is not done) (13) Poor quality of material/tiles etc. has been used in Bathrooms No chrome plated brass fittings of Jaqaur make, no shower panels as committed, only 2 geysers in bathrooms against committed in all bathrooms i.e. 3 geysers in 3 bathrooms.
(14) Local/substandard paint is used over there in place of committed Asian paint in all internal walls & ceilings. One wall in every room was to be painted with texture paint, but not done in all rooms & where done it is of very poor quality.
(15) No independent garbage duct is provided to my Flat which was committed.
(16) Two lifts have been provided, one is local made & sub standard which is life threatening and is not in running condition. Earlier mishaps have taken place as on 2.11.14 evening, one local made elevator met with an accident and stuck in between the start with a bang. One elderly person got stuck in the lift who could be rescued after a long time. The accident could have been fatal hence was reported to police, therefore, Ops be directed to replace the local Consumer Complaint No. 36 of 2017 10 made lift with the new one as the old one is life threatening having no safety measures. And the other lift is of Kone Company was installed in the year 2005 after taking Rs. 5000/- per flat from the residents. Therefore, Ops be directed to refund Rs. 5000/- alongwith interest @ 24%. Only lift of Kone Company is working.
(17) Seepage is visible in all the floors which are under use. This indicates poor construction quality. It is apprehended that stability of buildings is not satisfactory.
3. Ops may be directed to pay Rs. 400000.00 with 24% (i.e. Rs. 192000/-) interest for deficiency in amenities & the poor quality material.
4. Ops may be directed to pay proportionate share in reduction in common land due to illegal construction of additional flats to be calculated as per supplementary deed (Annexure C-6).
5. Ops may be directed to pay Rs. 4 lakh as compensation for recurring mental harassment on account of compromise being made for the common facilities.
6. Ops may be directed to pay Rs. 2 lakh as compensation for reduction in park Area.
7. Ops may be directed to pay Rs. 3 lakh as compensation for risk of life of the complainant and his family members as well as of goods.
8. Ops may be directed to pay Rs. 2 lakh as proportionate share in reduction of land (2500=20500-18000 sq. yds.) in Consumer Complaint No. 36 of 2017 11 the name of Royale Mansions as accordingly share in common land has reduced as the actual registry of the land in the name of Royale Mansions is approx. 18000 sq. yards against wrongly shown as 20500 sq. yards in map.
9. The Op No. 2 i.e. Mr. Ashok Singla, be directed to pay the arrears of maintenance charges as well as regular payment of maintenance charges as 45 flats are under the ownership of Mr. Ashok Singla, one of the partner of the firm, but also is not paying maintenance amount of Rs. 2000/- per month, which are being paid by all other residents, which are very essential for the smooth running of essential services in the society. As the society is in scarcity of funds and Rs. 90,000/- per month would be paid by Mr. Ashok Singla only which would be of great help for the smooth running of the essential services. Mr. Ashok Singla has flatly refused to pay the amounts when one of the Directors of the society went to give bills of maintenance charges.
10. The Op No. 2 i.e. Mr. Ashok Singla, be directed for removing the mobile towers from at the top floor of the G block and further direction be given for refunding to the fund of society, all amounts collected from the Mobile Company on account of rent and other charges as he has earned the money at the cost of life of the residents of the society, therefore, society is entitled for the said amounts. Consumer Complaint No. 36 of 2017 12
11. The Ops be directed to rectify the registry of the complainant at the cost of the firm in accordance as under:-
a) the following numbers namely khewat/khatoni no. 45 bearing khasra No. 192(3-2), 534/184(1-17), 193(3-3), 505/191(1-16), kittte 4 total land measuring 9 bighas 18 biswas as per jamabandi for the year 2011-2012 situated within the revenue estate of Village Peer Muchalla, MC Zirakpur, Tehsil Dera Bassi, be included in the registry of the complainant which are missing in the registry of the complainant.
b) Share of ownership of the complainant in the common area be included.
c) Other mandatory provisions of the Punjab Apartment Ownership Act be included.
12. Opposite party be directed to pay Rs. 50000/- as counsel fees."
2. Only Op Nos. 1 to 4 contested the complaint whereas Ops Nos. 5 to 7 were proceeded ex-parte vide order dated 27.4.2017 & 3.7.2017. Op Nos. 1 to 4 in their written reply have taken the preliminary objections that the complaint filed by the complainant is barred by limitation stating that the agreement was signed on 2.3.2012. The possession was to be given within 21-24 months from the date of agreement. The committed date of handing over the possession was 2.3.2014 and offer of possession was sent to the complainant on 7.3.2014 and possession was Consumer Complaint No. 36 of 2017 13 handed over to the complainant on 28.7.2014 and he shifted in the flat on 5.8.2014 whereas the complaint has been filed on 25.1.2017 after expiry of 2 years 9 months from the cause of action and that the total price of the flat is Rs. 52,71,680/- whereas the complainant is seeing compensation of Rs. 44,23,359/-, which itself is a joke, how it can be allowed. On merits, it has been admitted that Op No. 1 is partnership firm, which was started by Op Nos. 6 & 7 but no misrepresentation was made to the complainant at the time of booking/launch of the project. Despite some internal problem with Op Nos. 6 & 7, the flat construction has been completed within the time mentioned in the agreement. The project was taken over by Op Nos. 2 to 5 from OP Nos. 6 & 7. There was no conspiracy or creating any terror in the minds of the allottees. After taking over the project by Op Nos. 2 to 5 from Op No. 6 & 7, the complainant executed the new buyer's agreement with Op Nos. 2 to 5. It has been denied that the option given to the complainant was either sign the new agreement or to exit. The complainant and all other allottees willingly signed the second agreement. The nomenclature of the said project was also changed from Royale Empire to Royale Mansions in the agreement dated 2.3.2012. Further supplementary agreement dated 6.7.2014 was signed between the complainant and Mr. Mohit Aggarwal on behalf of Op No. 1. Mohit Aggarwal is not authorized to sign any agreement on behalf of Royale Mansions, therefore, hence, the agreement dated 6.7.2014 has no value being not signed by any authorized party of the firm. Otherwise the possession of the flat was handed over to Consumer Complaint No. 36 of 2017 14 the complainant on 28.7.2014 and he shifted to the flat on 5.8.2014. It was denied that a sum of Rs. 4,21,680/- was taken as excess amount from the complainant. The details of the total amount to be paid by the complainant is as under:-
a) Cost of flat - as per agreement 52,00,000/-
b) Services Tax - statutory payment 1,60,680/-
c) Govt. Dues - MC Zirakpur / PSEB 1,50,000/-
d) Advance maintenance security 48,000/-
for 2 years
e) Society/Club Membership 10,000/-
f) Interest for delayed payments 53,000/-
===========
TOTAL 56,21,680/-
As per the statement of account of the complainant, he has paid Rs. 52,71,680/-, therefore, there is balance of Rs. 3,50,000/- yet to be paid by the complainant to the Ops. The electric connection and telephone connection charges/service lines are not included in the cost of the flat. In the complaint filed by Mr. Sachin Goyal, CC No. 642 of 2014 before the DCDRC, Mohali has subsequently paid all the dues and took over the possession and his appeal before the SCDRC, Punjab i.e. Appeal No. 453 of 2016 was dismissed as infructuous. In CC No. 103 of 2014 decided by SCDRC, Punjab, Chandigarh, the Ops have filed an appeal before the NCDRC, New Delhi, which is pending for decision. The demand of service tax, EDC/IDC, Society membership, advance maintenance charges etc. Consumer Complaint No. 36 of 2017 15 is justified being specifically mentioned in the agreement. The following amenities have already been provided in the flats:-
"1. Health Club - A Gym-cum-Community centre is there. Photographs in evidence enclosed at Annexure R-5B.
2. Swimming Pool - the complaint itself says that 10x10 meter swimming pool is there.
3. Individual garbage duct is not possible as per the feasibility study. Nevertheless, proper provision is there for garbage collection and its disposal. Sewerage treatment plant had also been provided. - Annexure R-5C.
4. CCTV cameras are there, photographs in evidence enclosed at Annexure R-6.
5. Intercom & WiFi is there. Photographs in evidence enclosed at Annexure R-7.
6. Adequate car parking is there.
7. Power back-up 2 No. D.G. sets have already been installed. Photographs in evidence enclosed at Annexure R-8.
8. 10 years insurance policy is there. Copy of the insurance policy from New India Assurance Co. Ltd. for the period from 25.1.2013 to 24.1.2013 in evidence enclosed at Annexure R-9.
9. Fancy lights are there. Photographs enclosed at Annexure R-10.
10. Earthquake resistant RCC frame - approved system is there. The structural strength etc has certified by the Civil Consumer Complaint No. 36 of 2017 16 Engineering Department of PEC University of Technology, Chandigarh vide letter dated 25.10.2013. Annexure R-11.
11. Fire hydrants have been provided. Further, approval of the Fire Department, Z/pur is also there at Annexure R-12.
12. Kitchen and accessories of good are already there.
13. Goods quality of material/tiles used in flats.
14. Hard wood designed/decorated main gate is there.
15. Good quality of paint has been used.
16. Two lifts have been provided in each block as provided in the agreement. There was no commitment for the KONE lift anywhere in the agreement.
17. Seepage is hardly there. However, seepage is quite apparent and this may be because of blocking of the pipes and inadequate cleaning/sweeping."
NOC from the fire department has long been obtained and adequate equipment is already there to take care of any casualty. The Ops have constructed 258 flats on the basis of approved drawings/layout plan. As per approved drawings/layout plan, approved by M.C. Zirakpur vide letter dated 27.3.2015 on payment of fee/charges of Rs. 4,75,563/-. Structural strength of the building has been certified by the Civil Engineering Department of PEC University of Technology, Chandigarh. Matter with regard to completion certificate was taken up with M.C. Zirakpur on 13.7.2014 and subsequently, another letter dated 20.6.2015 was issued. Further the complainant at the time of getting the possession had given an undertaking regarding the timely payment Consumer Complaint No. 36 of 2017 17 of the maintenance charges and his commitment that he will abide by rules and regulations of the Society about the maintenance of the common services. It was denied that there is any unfair trade practice or deficiency in service on the part of Ops. Complainant is not entitled to any amount as alleged by him in the complaint. Complaint is without merit, it be dismissed.
3. Parties tendered their respective evidence in support of their contentions.
4. We have heard the learned counsel for the complainant, counsel for the Ops and have carefully gone through the pleadings, evidence and documents on the record.
5. The first important point in this complaint is whether the complaint is within limitation. As per averments in the compliant and documents placed on the record, the first buyers agreement was executed between the complainant and Op Nos. 6 & 7 when they had raised the project under the name and style of Royale Empire with the total cost of the flat as Rs. 52,00,000/- and on that day, a sum of Rs. 10 Lacs was deposited by the complainant for which a receipt was issued by Ops Ex. C-2 and on the same day allotment letter Ex. C-4 vide which flat No. 204 in Block A was issued in favour of the complainant. However, as per the pledings of the complainant and Ops, the project was taken over by Op Nos. 2 to 5 from Op Nos. 6 & 7 and then a new agreement was executed between the complainant and Op Nos. 2 to 5 and they had changed the nomenclature of the project also as Royale Mansions instead of Royale Empire and cost of the flat was Consumer Complaint No. 36 of 2017 18 mentioned as Rs. 49.50 Lacs and according to Clause 8 of the agreement, the possession of the completed flat was likely to be offered within 21 to 24 months from the date of booking, subject to timely payment by the 2nd party. The possession was offered and Ops had given the possession certificate on 28.7.2014 and on the same day, satisfactory certificate was issued by the complainant, which reads as under:-
"In pursuance of the Possession Certificate in Royale Mansions, Peermuchalla, Zirakpur, Distt. SAS Nagar Mohali (PB) of Flat No. 201 Block A. I/ We have received the physical possession after satisfying our self (in all respects) of the above flat in Royale Mansions, Peermuchalla, Zirakpur, Distt. SAS Nagar Mohali (PB) in good condition after satisfying our self in every respect in the presence of following person in stipulated time. The Apartment has been duly inspected by me/us. I/we have received the original two keys of the flat and have entered in the flat. I/we have inspected all the works in our own flat regarding workmanship, Material, Finishing, Fixtures, Accessories, China wares, Fancy lights, Taps, Sink, Tiles, Chimney, Six split A.C., Two geysers, R.O. System, Wooden flooring, 4 Burner Stove, Doors etc. Everything is in good manner. I/We are giving a free consent regarding all above works and quality. I/ We am/ are fully satisfied regarding all above works & Consumer Complaint No. 36 of 2017 19 quality. I/ we undertake to abide by the terms and conditions of the Agreement to sell & Application form and also all rules & regulations as may be applicable to the said apartment including Punjab Apartment and Property Regulation Act' 1995. Now from today I became the owner of my flat and I will be held responsible for any breakage, thefts any loss, any profit, or missing any fixture from the above said flat."
However, this letter shows that it is signed by the complainant on 9.9.2011 and it is not witnessed by any witness. It has been argued by the counsel for the complainant that it has been manipulated by the Ops. Even if this satisfactory certificate is ignored, it is not denied that the possession was not taken on 28.7.2014. The possession certificate, has been placed on the record by the complainant himself as Ex. C-12. The complainant very well knew about the price as fixed in the agreement and the amenities to be provided as per the agreement/brochure. In case after taking over the possession, he found that the amenities as agreed were not provided then cause of action had arisen to him on the date he had taken over the possession. After that in case he had written any letter to the Ops i.e. 28.10.2014 (Ex. C-15), letter dated 16.3.2016 (Ex. C-21) or any letter against the Ops to the Administrative Authorities that will not extend the limitation period. The limitation has been prescribed under the Act itself. Section 24A of the Act reads as under:-
Consumer Complaint No. 36 of 2017 20
"24A. Limitation period. - (l) 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 (l), 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."
In case the complaint was filed after expiry of that period, it is barred by limitation unless it is accompanied by an application to condone the delay, if any, in filing the complaint. However, it was argued by the counsel for the complainant that the complainant had been approaching the Ops to make good the deficiency in the amenities and to refund the amount taken in excess from the complainant, therefore, he has the recurring cause of action. Whereas counsel for the Op stated that once he has taken the possession and in case as per his opinion, some amount was due towards the Ops and amenities as per the agreement were not provided then he should have filed a complaint within two years and any correspondence between the parties cannot extend the period of limitation. To support this contention, he has referred to the judgment 2017 (4) CLT 403 (Del.) "Rima Kumra vs. Delhi Consumer Complaint No. 36 of 2017 21 Development Authority", in which it has been observed as under:-
"Limitation - Possession of flat given with unfinished work. Plea of complainant that there is a continuous cause of action since the authority has done nothing to finish the unfinished work. Cause of action was complete on the date of taking over of possession. Cause of action which is complete, as is the case here, cannot be recurring cause of action."
Neither the correspondence between the parties nor the serving of legal notice to the opposite party extends the period of limitation and gives a right to the complainant to file the complaint beyond the period of limitation. This view was further been upheld by the Hon'ble National Commission in case titled as Ramratan M. Shriwas versus Jayant H. Thakkar", IV (2011) CPJ 114 (NC) in para No. 2 as follows:-
"2. We agree with the view taken by the Fora below. It is well established by catena of judicial pronouncements that once a period of limitation starts, it cannot be enlarged or extended by prolonged correspondence between the parties. The provision regarding limitation period contained in Section 24A being of mandatory nature, the Fora below was duty bound to determine whether the complaint is within the limitation period and since on consideration of the material placed before them, they found that the complaint was barred by limitation and sufficient cause had not been made out to condone the delay in question, no fault could be found with the impugned orders."Consumer Complaint No. 36 of 2017 22
We are of the opinion that complaint is barred by limitation. Since the complaint filed by the complainant is barred by limitation, therefore, we are not supposed to give findings on merits because once the complaint is barred by limitation then no findings on merits are required to be recorded.
6. Sequel to the above, we hold that the complaint is barred by limitation, therefore, the same is dismissed with no order as to costs.
7. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
8. Order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER December 19, 2017.
as