State Consumer Disputes Redressal Commission
Ms Neeru Kapoor vs M/S Spaze Towers Pvt.Ltd on 6 October, 2023
NEERU KAPOOR & ANR. V. SPAZE TOWERS PVT. LTD. & ORS.
06.10.2023 I.A. NO.814/2021 IN C-380/2016 This order will dispose of the aforesaid application filed by the OP No.2 and 3 under Order VII Rule 11 read with Section 151 CPC and Section 26 of the Consumer Protection Act for rejection of the present complaint. The rejection has been sought on the following grounds:
(a) That the buyer agreement was unsigned between the parties and as such the unit was never allotted to the Complainant as there is no averment nor any document to such effect has been attached with the complaint;
(b) That the unit was cancelled prior to it being allotted to OP No.2 and 3 vide a builder buyer agreement dated 09.02.2015 and allotted vide letter dated 06.02.2016.
(c) Reference can be made to letter dated 25.01.2014 by OP No.1 to Complainant, which refers to termination of the unit due to delay and default of payment by the Complainant.
(d) That the Complainant is praying for revocation of the cancellation of unit.
(e) The complaint is barred by limitation as cause of action, if any, against the OP No.1 arose on 25.01.2014 when the OP No.1 cancelled the allotment of the unit but the complainants filed the complaint after expiry of limitation period of two years.
(f) The Complaint is frivolous as it was filed with malafide intention to extract money.Page 1 of 10
NEERU KAPOOR & ANR. V. SPAZE TOWERS PVT. LTD. & ORS.
To adjudicate the issue, we deem it appropriate to refer to Section 24A of the Consumer Protection Act, 1986 wherein it is provided as under: -
"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 as this 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."
Analysis of Section 24A of the Consumer Protection Act, 1986 leads us to the conclusion that this commission is empowered to admit a complaint if it is filed within a period of 2 years from the date on which cause of action has arisen. We further deem it appropriate to refer to Mehnga Singh Khera and Ors. Vs. Unitech Ltd. reported in I (2020) CPJ 93(NC), wherein the Hon'ble National Commission has held as under:Page 2 of 10
NEERU KAPOOR & ANR. V. SPAZE TOWERS PVT. LTD. & ORS.
"It is a settled legal proposition that failure to give possession of flat is continuous wrong and constitutes a recurrent cause of action and as long as the possession is not delivered to the buyers, they have every cause, grievance and right to approach the consumer courts. It is only when the seller virtually refused to give possession, that the period of limitation prescribed under section 24(A) of the Consumer Protection Act, 1986 would start. The Complainant has to file a case within two years from the date of refusal of delivery of possession to the buyer."
Reply to the application has been filed by the Complainants, wherein the complainants denied the allegation raised by the OP No.2 and
3. It is stated that the complaint has been filed well within the 02 years of knowledge of the cancellation. It is stated that limitation has been claimed on the basis of email dated 24.01.2014, however, the contents of email clearly shows that there was dispute with respect to payment as to whether payment of Rs.20 Lakh to be adjusted against the principal or against penalty and the email mentions threat of cancellation of allotment by OP No.1.
The present complaint was filed on 08.04.2016 by the Complainant alleging deficiency in service on the part of the opposite party. It is stated that on 16.08.2009, the Complainants made an application with OP No.1 for registration of commercial unit bearing No.G-42, measuring 1043 sq. ft. 'Spaze Business Park' at Sector -66, Golf Course Extension Road, Gurgaon and made payment of Rs.5,00,000/- and opted construction linked plan. It was assured that unit will be handed over within 36 months. The Complainants made further payment of Rs.3,50,000/- on 27.10.2009. However, OP did not send the buyer agreement to the Page 3 of 10 NEERU KAPOOR & ANR. V. SPAZE TOWERS PVT. LTD. & ORS.
complainant for execution and kept on demand the payment. Upon physical inspection of the site, Complainant found that no construction had started. After persisting requests on 24.09.2012, the Complainant received a copy of the buyer agreement and upon reading the same they came to know that OP did not had any permission for construction. The Complainants requested to make changes in the agreement in as much as regarding possession of unit in 2012, however, the OP did not make any change in the agreement and kept on raising unreasonable and unexplained demands. Having no option, the Complainants further made payments totaling to Rs.26,00,000/-. However, no work was done at the site by the OP. Thereafter, Complainants made several requests and also sent an email dated 24.01.2014, however no response was received. On 19.05.2015 when the Complainant visited the office of OP, it was conveyed that the allotment of the said unit has been cancelled in April, 2014. However, no letter of cancellation was received by the Complainants. The Complainants made a complaint dated 21.05.2015 to the OP stating that they are willing to make the due payments, but the matter was not resolved. Thereafter, the Complainants made a police complaint on 09.02.2016 and subsequently filed complaint before this Commission seeking handover of the possession of the unit and revocation of the cancelled unit alongwith compensation and cost of litigation.
Perusal of the records shows that the reliance is placed on the letter dated 25.01.2014, vide which the allotment of the units has allegedly been terminated. The relevant portion of the letter reads as under:
Page 4 of 10NEERU KAPOOR & ANR. V. SPAZE TOWERS PVT. LTD. & ORS.
"As against the total demand of Rs.72,02,721, you have so far deposited Rs.26,000/- thus incurring interest on account of delay payments which on date is Rs.17,16,618/-. Continuous default in the installment amounts by the Unit holders definitely hampers the progress of the project. The Developer has to complete the project by raising resources at heft costs. The project has already reached the fag end of its completion and we are taking steps to offer the possession shortly. The total cost of your unit is approx. Rs.75 lacs and just paying 1/3rd of the cost during all this period hardly legitimize your request for any concession in the interest amount.
However, as a gesture of goodwill and your connections with the Company, we may allow you to deposit the entire outstanding amount with interest in the next one week failing which the unit stands terminated/cancelled and the Company shall proceed as per the contents of our termination letter No.SBP/000126 dated 19th October, 2013."
A perusal of the letter clearly shows that the OP allowed the complainant to deposit the entire outstanding amount with interest in one week and upon failure to do the unit shall be terminated. Thus, the unit was not cancelled. Further, the OP in its written statement in reply to Para No.17 of the complaint has clearly mentioned as under:
".......However acting upon good faith & as a gesture of goodwill and in response to email dated 24.01.2014, the OP once again gave a final opportunity to the complainant vide its letter dated 25.01.2014 to make payments towards the outstanding amount within 1 week's time....."
Perusal of the record shows that subsequent to the cancellation of the unit in question the same was allotted by the OP No.1 to OP No.2 and
3. Subsequent to which, upon an application filed by the Complainant seeking impleadment of OP No.2 and 3, vide order dated 31.07.2019, they were impleaded in the complaint. Thereafter, the aforesaid Page 5 of 10 NEERU KAPOOR & ANR. V. SPAZE TOWERS PVT. LTD. & ORS.
application seeking dismissal of the complaint was filed by OP No.2 and
3. Be that as it may, the fact remains that vide letter dated 25.01.2014, the Complainant was granted one week's time to make the payment, failing which the allotment was to be terminated. It is admitted position that the Complainant did not make any payment thereafter to OP No.1 and the allotment stand cancelled.
Returning to the facts of the present case, it is noted that the Opposite Party had duly sent the cancellation letter dated 25.01.2014 to the Complainant at her address i.e. 51-A, Hartron Electronic City, Sector -18, Udyog Vihar, Gurgaon informing her about the cancellation of flat in question.
Relying on the above settled law, the present complaint shall be filed before the State Commission within two years from the date on which the cause of action has arisen i.e. 25.01.2014 (date of cancellation of the said flat). It is clear from the record that the present complaint was filed by the complainant on 08.04.2016 i.e., after a delay of 74 days.
In order to condone the delay of 74 days, the Complainant has to satisfy this Commission that there was sufficient cause for preferring the complaint after the stipulated period. The term 'sufficient cause' has been explained by the Apex Court in Basawaraj and Ors. vs. The Spl. Land Acquisition Officer reported in AIR 2014 SC 746. The relevant paras of the aforesaid judgment are reproduced as under:
"9. Sufficient cause is the cause for which Defendant could not be blamed for his absence. The Page 6 of 10 NEERU KAPOOR & ANR. V. SPAZE TOWERS PVT. LTD. & ORS.
meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose."
We also deem it appropriate to refer to Anil Kumar Sharma vs. United Indian Insurance Co. Ltd. and Ors. reported in IV (2015) CPJ 453 (NC), wherein the Hon'ble NCDRC held as under: -
"12. .........we are not satisfied with the cause shown to justify the delay of 590/601 days. Day to day delay has not been explained. Hon'ble Supreme Court in a recent judgment of Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has held that while deciding the application filed for condonation of delay, the Court has to keep in mind that special period of limitation has been prescribed Page 7 of 10 NEERU KAPOOR & ANR. V. SPAZE TOWERS PVT. LTD. & ORS.
under the Consumer Protection Act, 1986, for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes, will get defeated if the appeals and revisions, which are highly belated are entertained."
From the aforesaid dicta of the Hon'ble Apex Court and the Hon'ble National Commission, it is clear that 'sufficient cause' means that the party should not have acted in a negligent manner or there was a want of bona fide on its part and the applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay.
We also deem it appropriate to refer to Lingeswaran Etc. Versus Thirunagalingam in Special Leave to Appeal (C) Nos.2054-2055/2022 decided on 25.02.2022, wherein the Hon'ble Supreme Court held as under: -
"5. We are in complete agreement with the view taken by the High Court. Once it was found even by the learned trial Court that delay has not been properly explained and even there are no merits in the application for condonation of delay, thereafter, the matter should rest there and the condonation of delay application was required to be dismissed. The approach adopted by the learned trial Court that, even after finding that, in absence of any material evidence it cannot be said that the delay has been explained and that there are no merits in the application, still to condone the delay would be giving a premium to a person who fails to explain the delay and who is guilty of delay and laches. At this stage, the decision of this Court in the case of Popat Bahiru Goverdhane v. Land Acquisition Officer, reported in (2013) 10 SCC 765 is Page 8 of 10 NEERU KAPOOR & ANR. V. SPAZE TOWERS PVT. LTD. & ORS.
required to be referred to. In the said decision, it is observed and held that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same.
Reverting to the material available before us, we find that the time for filing the present complaint had expired on 24.01.2016. In reply to the application except from stating that complainant was informed about the cancellation in April 2014 for the first time on personal visit on 19.05.2015, no cogent reasons given by the complainant as to why he did not take immediate steps to file the present complaint from the date on which cause of action has arisen. However, alongwith complaint at page No.80, the Complainant has filed copy of the letter dated 25.01.2014, which clearly shows that the Complainant was well aware of the termination/cancellation of the allotment. Thus, the complainant has not explained as to why the present complaint was not filed within 2 years as provided by the Consumer Protection Act, 1986. It is abundantly clear from the above that the complainant was moving at her own pace unmindful that the prescribed period to file the complaint is 2 years from the date on which cause of action has arisen.
Having regard to the facts of the case and the legal position having been explained, we find no reason to continue with the present complaint having been filed after the prescribed limited of 02 years. Accordingly, the application filed by OP No.2 and 3 seeking dismissal of the complaint Page 9 of 10 NEERU KAPOOR & ANR. V. SPAZE TOWERS PVT. LTD. & ORS.
stands allowed. Consequently, the present complaint shall stand dismissed.
No order as to costs.
File be consigned to record room.
(Justice Sangita Dhingra Sehgal) President (Pinki) Member (Judicial) (J.P. Agrawal) Member (General) Page 10 of 10