State Consumer Disputes Redressal Commission
Rajneesh Goel vs Bestech India Pvt. Ltd. on 16 August, 2023
C. NO. 245/2020 D.O.D.: 16.08.2023
MR. RAJNEESH GOEL AND ANR. VS. BESTECH INDIA PVT. LTD.
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 13.10.2020
Date of Hearing: 12.05.2023
Date of Decision: 16.08.2023
COMPLAINT CASE NO.- 245/2020
IN THE MATTER OF
1. MR. RAJNEESH GOEL,
2. MRS. NIKITA GOEL,
BOTH RESIDENTS OF:
S-401, SIGNATURE TOWER,
BESTECH PARKVIEW GRAND SPA,
SECTOR- 81, GURGAON-122004.
(Through: Mehta & Singhvi Law Offices LLP)
...Complainants
VERSUS
BESTECH INDIA PVT. LTD.,
REGISTERED. OFFICE AT:
OFFICE NO. 5D, 5TH FLOOR,
ARIA SIGNATURE OFFICES,
JW MARRIOT HOTEL DELHI
AEROCITY
HOSPITALITY DISTRICT NEAR IGI
AIRPORT,
NEW DELHI-110037.
ALSO, AT-
BESTECH HOUSE 51,
SECTOR-44, GURGAON-122002.
(Through: Mr. Ashish Kumar, Advocate)
...Opposite Party
DISMISSED PAGE 1 OF 8
C. NO. 245/2020 D.O.D.: 16.08.2023
MR. RAJNEESH GOEL AND ANR. VS. BESTECH INDIA PVT. LTD.
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
HON'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL)
Present: Ms. Kanika Sharma, proxy counsel for the Complainant.
Ms. Twinkle Kataria, counsel for the Opposite Party.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
JUDGMENT
1. The present complaint has been filed by the Complainants before this Commission alleging deficiency of service by the Opposite Party and has prayed the following reliefs:
a) Direct the OP to pay the complainants, compensation for 31 months delay in handing over the possession of the purchased apartment, at 18% of total consideration paid, with interest thereon at 18% p.a. from due date till date of payment.
b) Direct the OP to pay 6,94,515.55/- (Rupees Six lakh ninety-four thousand five hundred fifteen and fifty-five paise) for the expenses incurred by the complainants towards warehousing rentals for storing their household good for month of 31 months of delayed possession.
c) Direct the OP to pay such amount of compensation, as this commission deems fit and proper, for the misrepresentation and losses cause due to the public road built by the OP dividing the housing complex.
d) Direct the OP to pay a sum of Rupees 10,00,000/- (Ten lakh Rupees) as compensation for mental harassment, torture, inconvenience caused to the complainants.
e) Grant costs of present complaint.
f) Pass such other order/s as this Hon'ble commission may deem fit and proper.
DISMISSED PAGE 2 OF 8 C. NO. 245/2020 D.O.D.: 16.08.2023
MR. RAJNEESH GOEL AND ANR. VS. BESTECH INDIA PVT. LTD.
2. The brief facts necessary for the adjudication of the present complaint are that onn10.04.2012, the Complainants booked an apartment bearing no. 401, with the Opposite Party in the project called "Park View Grand Spa"
situated at Sector 81 Gurugram, Haryana. Subsequently, an apartment Buyer Agreement was executed between the parties on 06.07.2012. As per the said agreement, the Opposite Party was to hand over the possession of the apartment within 36 months from the date of signing the agreement dated 06.07.2012, along with a grace period of 9 months. In September 2017, the Complainants had shifted to Vietnam for career and professional reasons and the apartment was not ready for possession, all the household belongings, furniture, etc., were shifted to a temporary housing facility and the Complainants paid rent for that facility. Later, in the middle of the year 2018, the Opposite Party offered possession of the said apartment, and the Complainants came to India from Vietnam to take possession. However, the Complainants were shocked and surprised to see the poor quality of work in the apartment, including numerous defects and deficiencies in its construction such as cracked tiles, poor flooring, peeling paint, and cracked walls. Furthermore, they discovered that a public road was built through the housing complex, dividing the Signature Tower from the rest of the complex. The Complainants raised these issues with the Opposite Party, but the latter failed to provide any satisfactory response. Also, the Opposite Party had included one-sided and unfair terms in the agreement, giving them sole discretion in matters of terminating or canceling the booking of the apartment. The Opposite Party also threatened the Complainants with holding charges if DISMISSED PAGE 3 OF 8 C. NO. 245/2020 D.O.D.: 16.08.2023 MR. RAJNEESH GOEL AND ANR. VS. BESTECH INDIA PVT. LTD.
possession was not taken, leaving them with no choice but to take possession of the apartment on 08.12.2018.
3. The Opposite Party has contested the present case and raised preliminary objections as to the maintainability of the complaint case. The counsel for the Opposite Party submitted that the present complaint is barred by the law of limitation as the possession of the said apartment was offered on 27.12.2017 to the Complainants much prior to two years from the date of filing present complaint and the Complainants had physically taken over the possession of the apartment on 08.12.2018. The counsel for Opposite Party further submitted that the Complainants prior to taking possession, have made proper inspection of the building, apartment & basement including the parking space. He further submitted that the Complainants have no cause of action to file the present complaint. The counsel appearing on behalf of the Opposite Party prayed that the present complaint should be dismissed.
4. The Complainants have filed the Rejoinder rebutting the written statement filed by the Opposite Party. Both the parties have filed their Evidence by way of affidavit in order to prove their averments on record & written arguments during the course of proceedings.
5. We have perused the material available on record and heard the counsel appeared for both the parties.
6. Before delving into the merits of the case, we deem it appropriate to adjudicate the preliminary issues involved in the present matter.
7. Whether the present complaint is barred by limitation under Consumer Protection Act, 2019?
8. The Opposite Party has contended that the present complaint is barred by DISMISSED PAGE 4 OF 8 C. NO. 245/2020 D.O.D.: 16.08.2023 MR. RAJNEESH GOEL AND ANR. VS. BESTECH INDIA PVT. LTD.
limitation under Section 69 of the Consumer Protection Act, 2019, wherein it is provided as under:
69. 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."
9. A perusal of the above statutory provision makes it clear that the complaint shall be filed before the State Commission within two years from the date on which the cause of action has arisen. Returning to the facts of the present case, it is evident that the Opposite Party offered the possession of the said apartment on 27.12.2017, and the Complainants accepted the possession of the said apartment after clearing dues on 08.12.2018
10. At this stage, we further deem it appropriate to refer complaint no.
789/202 titled as Avtarsingh Chauhan vs. DLF Home Developers Ltd.
DISMISSED PAGE 5 OF 8 C. NO. 245/2020 D.O.D.: 16.08.2023
MR. RAJNEESH GOEL AND ANR. VS. BESTECH INDIA PVT. LTD.
& Anr decided on 02.03.2023, wherein the Hon'ble National Commission has held as under:
"14. ......... It is undeniable that in the present case, the Occupancy Certificate was received by the OP on 21.2.2017, and only after that the offer of possession was made to the Complainants on 23.3.2017. Consequently, the period of limitation starting from the latter date would end. On 23.3.2019. Any Complaint filed after that date would per se be beyond limitation. But the Complainants in the present case have resorted to a novel method to bring their claims within the statutory limitation period. Their contention is that the letter dated 23.3.2017, which according to the Opposite Parties was the offer of possession made subsequent to receipt of the Occupancy Certificate was nothing more than a "forwarding letter of the Statement of Accounts" of the Complainants. Their further contention is that the actual offer of possession ought to be treated as 17.5.2019 i.e., when the "possession letter" of that date was issued by the Opposite Parties...
15. ........There is no document whatsoever on record to show that at any stage the Complainants had raised any objections to any of the conditions mentioned in the offer of possession dated 23.3.2017 which were not acceptable to them, or which were raised with the Opposite Parties.
16. For the aforesaid reasons, we are of the considered view that the present Complaints are manifestly barred by DISMISSED PAGE 6 OF 8 C. NO. 245/2020 D.O.D.: 16.08.2023 MR. RAJNEESH GOEL AND ANR. VS. BESTECH INDIA PVT. LTD.
limitation, since the same were filed more than three years after the offer of possession was made to the Complainants in the month of March, 2017.
17. The same are dismissed"
11. The above dicta reflects that if possession of the property in question has already been delivered to the buyer, the period of limitation begins from the date of the offer of possession. On perusal of the record, it is noted that the Opposite Party duly sent the Complainants an offer of possession letter dated 27.12.2017 (Annexure R-6), and the present complaint is filed on 12.10.2020, which is after 2 years from the date of the offer of possession, i.e., 10.09.2021.
12. We further deem it appropriate acceptance of possession dated 08.12.2018, wherein the Complainants have agreed to that "I have inspected the construction of the said Apartment along with its parking and now I do hereby confirm that the Apartment is complete in all the respects and is satisfied with the specification of the unit and that I/we have no claim against tie company in respect of the terms of work done in the said Apartment for the design, specification, building material used or for any reason whatsoever." Therefore, it is evident from the acceptance letter that the Complainants accepted the possession to their full satisfaction and it duly bears the signature of Mr. Rajneesh Goel, i.e., Complainant no.1.
13. Relying on the above settled law and the facts of the present case, we hold that the present complaint is barred by limitation under Section 69 of the Consumer Protection Act, 2019 as the same was not filed within two years from the date of offer of possession. Consequently, the present DISMISSED PAGE 7 OF 8 C. NO. 245/2020 D.O.D.: 16.08.2023 MR. RAJNEESH GOEL AND ANR. VS. BESTECH INDIA PVT. LTD.
complaint stands dismissed due to limitation with no orders as to cost.
14. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
15. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
16. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT PINKI MEMBER (JUDICIAL) J.P. AGRAWAL MEMBER (GENERAL) Pronounced On:
16.08.2023 DISMISSED PAGE 8 OF 8