State Consumer Disputes Redressal Commission
Prateek Dubey vs M/S Jbk Developers Pvt. Ltd. on 1 September, 2017
Daily Order IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Arguments :18.08.2017 Date of Decision : 01.09.2017 Complaint Case No.1254/2017 IN THE MATTER OF: Shri Prateek Dubey, 28 Jugyana Sahar, Jhansi, Uttar Pradesh. ......Complainant Versus M/s. JBK Developers Pvt. Ltd. 99 Patpargunj, Delhi-110091. ..........Opposite Party no.1 Managing Director M/s. JBK Developers Pvt. Ltd. 99 Patpargunj, Delhi-110091. ..........Opposite Party no.2 CORAM HON'BLE SH. O.P.GUPTA, MEMBER(JUDICIAL) HON'BLE SH. ANIL SRIVASTAVA, MEMBER
1. Whether reporters of local newspaper be allowed to see the judgment? Yes/No
2. To be referred to the reporter or not? Yes/No Present: Mohd. Faris, counsel for complainant.
PER : SHRI ANIL SRIVASTAVA, MEMBER Short question for adjudication in this complaint is whether the OP are deficient in the discharge of their function forcing the complainant to seek the refund of the amount paid for owning a flat and if so whether this Commission can issue direction when apparently the claim has been preferred after the expiry of the period of limitation as prescribed under Section 24 (A) of the Consumer Protection Act . Provision of law posits 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 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).
Facts of the case relevant for adjudication of the complaint are these.
Shri Prateek Dubey, resident of Jhansi UP, hereinafter referred to as complainant, had approached M/s. JBK Developers Pvt. Ltd., for short OP, at Patparganj, Delhi in the year 2012 for booking a residential apartment under their project namely "Green Avenue" at Greater Noida, UP. The complainant had approached them, keeping in view the advertisement assurances and averments of their quality of work and other related matters. The complainant was allotted unit no.BEETEL 408 together with super area admeasuring 995 sq ft considered under type 2BHK+2T-995 . He had paid an amount of Rs.8,00,000/- vide cheque, acknowledged by the OP. The complainant had made the payment demanded by the opposite party from time to time to ensure that there is no delay in getting the possession of the flat. Allotment letter or agreement in this behalf was not issued despite the insistence of the complainant.
The complainant has further alleged that the OP continued its malicious act of defying the complainants. The possession of the flat was to be handed over within three years. The payment as demanded was made as per schedule but possession seems not possible as the construction in the project has not even commenced. The OP had promised to hand over the physical possession of the flat on time but all his assurances were assurances with no results. Further demand of about Rs.8,00,000/- was made to be paid by the complainant to the OP by 10.10.2013 or else the allotment would stand cancelled in which case 15% of the total cost of the unit will be charged, as cancellation fee. This according to the complainant was disappointing apart from causing hardship, both mental and financial.
Secondly the complainant approached the OP to seek the clarification but instead of redressing his grievances, they (OP) misbehaved. The complainant has further alleged that the act of the OP amounts to cheating and defrauded them by misappropriating their money and by refusing to hand over the possession of the flat.
The OP vide their letter 03.09.13 (AnnexureC-3 page-23 of the paper book) cancelled the unit allotted to the complainant. The said letter is reproduced below:-
This is with reference to your application no.GA000442 dated 30.03.2012 in unit no.408 in tower Beetel in our project.
We regret to state that despite several reminders in writing as well as constant follow ups telephonically and electronically, you have failed to adhere to the payment schedule as opted by you in the booking form/ allotment letter.
We therefore have no other option but to cancel your booking / allotment.
You are requested to collect your refund cheque immediately from our office at the below mentioned address, after providing us with following documents.
1. All original receipts issued to you,
2. Original allotment letter5 (if any).
3. Original Bank Documents (if any).
4. Copy of pan card and address proof.
Please do not embarrass us by request for restoration.
Thanking you, Having being frustrated by the act of the OP a request was made for the refund of the money but the OP acted very unreasonably, arbitrarily and fraudulently in responding to their request. Faced with this situation a complaint has been filed praying for the relief as under:-
(i) Direct the opposite parties to refund the booking amount of Rs.8,00,000/- along with 24% interest compounded annually to the complainants and to take all required steps pursuant to the foregoing.
(ii) Direct the Opposite parties to pay a sum of Rs.1,50,000/- to the complainant as compensation for unfair trade practices.
(iii) Direct OP to pay a sum of Rs.1,50,000/- to the complainant as compensation for mental harassment and anxiety.
(iv) Direct OP to pay a sum of Rs.70,000/- to the complainant as compensation as reimbursement of legal expenses.
(v) Pass such other orders as this Hon'ble Commission deems fit in the interest of justice .
The complainant has been filed on the ground that the act of the OP is ex facie illegal, unsustainable in law and accordingly the complainants are liable to be compensated with interest @24%. They have also acted in clear violation of Section 8 of the Domestic Building Contracts Act, 1995. Their further allegations is that they have been burdened with additional cost not envisaged initially when they entered into contract. The OP is also liable under Section 55 of the Indian Contract Act 1872 .
In these circumstances the case has been filed with this Commission.
Matter was listed before us for admission hearing on 18.08.17 when the ld counsel for the OP appeared and advanced his arguments. We have also perused the records of the case.
The ld counsel while arguing that the OP have defaulted and thus liable for compensation, has drawn our attention to the judgment of the Hon'ble NCDRC in the matter of Kaushik K. Rana Vs. DLF Commercial complexes Ltd. IV (2014) CPJ 287 holding that the builder guilty of providing deficient and delayed service has to refund the amount given by the complainant to the OP along with interest and cost. Hon'ble court penalized the builders with return of the total amount deposited along with interest, considering the malpractices and deficiency of the builder in providing the possession of the property and thereafter settling with reciprocated rate of interest.
Similarly in another matter namely Puneet Malhotra Vs. Parvsnath Developers Ltd. II(2015) CPJ 18 (NC) it was directed builders to return the total amount deposited along with interest, considering the mal practices and deficiency.
We have read and re-read the letter of the OP dated 03.09.17 cancelling his allotment. The cause of action in this case therefore arose on 03.09.13. But the complaint has been filed on 26.07.17.
Initially when we had confronted the ld counsel on the question of substantial delay in the matter he argued that since it is a matter of refund it is a continues cause of action. However, he has not been able to support his arguments with any ruling. Later he has filed an application praying for condonation of delay stating that the complainant being from a remote area could not understand the implication of delay done which is bondafide and unintentional. We are not impressed with the arguments. The Hon'ble NCDRC in the matter of C.H. Vittal Ready Vs. The Manager, District decided on 04.12.02 is pleased to observe as under:
Condonation of delay when it is the complaint has to be taken very seriously and that is why proviso to sub section (2) of Section 24A mandates recording of reasons. It must be understood that a suit filed in a Civil Court after the period of limitation prescribed under the Limitation Act has to be dismissed and there is no provision for condoning the delay on the ground of any sufficient cause being shown for not filing the suit within the period of limitation. This is the law which is in force since 1908 when the Limitation Act, 1908 came into force and same is the position of the Limitation Act, 1963. Sub section (2) of Section 24A is a departure to the well settled law that a suit beyond the period of limitation prescribed under the Limitation Act has to be dismissed. A Consumer Forum has, therefore, to guard itself against the misuse of sub-section (2) of Section 24A and should not be quick to condone the delay unless cogent and verifiable reasons exist to condone the delay.
The Hon'ble Supreme Court in the matter of M. Bala Krishnan Vs. M. Krishna Murthy VII (1998) SLT 334 has observed as under:-
"Rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period of launching the remedy may leading to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxium interest "reipubicae up sit finis mum" (It is for the general welfare that a period be put to litigation). The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
Thirdly, the Hon'ble NCDRC in the matter of 'Nirkari Industries Vs. NOida Industrial Authority IV(2016) CPJ 121 - have not entertained a complaint, since not filed within a period of two years from the date of cancellation of letter, since barred by limitation".
Having regard to this we are of the considered view that the complaint being time barred is not maintainable. We order accordingly.
Copy of our order may be forwarded to the parties to the case free of cost as contemplated under the provisions of Consumer Protection Rules, 1987 and Consumer Protection Regulations 2005.
File be consigned to record.
(ANIL SRIVASTAVA) (O.P.GUPTA) MEMBER MEMBER (JUDICIAL) Nk