Haryana

Sonipat

CC/128/2015

PARMOD JAIN S/O SHYAM LAL JAIN - Complainant(s)

Versus

1. APEX BUILDTECH PVT. LTD. - Opp.Party(s)

ASHISH GARG

16 Oct 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

SONEPAT.

               

 

                                Complaint No.128 of 2015

                                Instituted on:10.04.2015                                             Date of order:02.11.2015

 

Parmod Jain son of Shyam Lal Jain, resident of H.No.69, Sector 15, Sonepat.

 

                                                …Complainant.         

                           Versus

 

 

1.M/s Apex Buildtech Pvt. Ltd. 514, Aggarwal Millenium Tower, Netaji Subhash Palace, Pitampura, New Delhi-110034.

2.Virender Jain Director, M/s Apex Buildtech Pvt. Ltd. 514, Aggarwal Millenium Tower, Netaji Subhash Palace, Pitampura, New Delhi-110034.

3.Vikram Wadhwa, Director, M/s Apex Buildtech Pvt. Ltd. 514, Aggarwal Millenium Tower, Netaji Subhash Palace, Pitampura, New Delhi-110034.

 

                                                …Respondent.

 

                COMPLAINT UNDER SECTION 12 OF

                THE CONSUMER PROTECTION ACT,1986

 

Argued by: Sh. RS Garg, Advocate for Complainant.

           Sh. Surender Malik Advocate for respondents.

 

Before-    Nagender Singh-President.

          Prabha Wati-Member.

           D.V.Rathi-Member.

 

O R D E R

 

          Complainant has filed the present complaint against the respondents alleging therein that he booked a residential flat measuring 1975 Sq. feet approximately in residential group housing project namely Apex green  and deposited Rs.10,49,375/- with the respondents from time to time till 8/2008.  However, despite this, the respondents have not taken any initiative to develop the project.  The complainant several times approached to the respondents and requested for execution of flat buyer agreement.  In 9/2014, the complainant visited the office of the respondent and again enquired about the possession of flat and it was told that the construction is going on in full swing and flat buyer agreement will be executed and possession will be given very soon, but it was totally a false assurance of the respondents.  Thus, the complainant requested the respondent for refund of his deposited amount with interest, but this request of the complainant has ended into smoke.    The complainant served the respondents with legal notice dated 16.3.2015 calling upon the respondents to refund the amount alongwith interest, but the said legal notice has also not brought any fruitful result and that amounts to a grave deficiency in service on the part of the respondents.  This wrongful and illegal act of the respondents have caused unnecessary mental agony and harassment to the complainant.  So, the complainant has come to this Forum and has filed the present complaint.

2.        The respondents appeared and filed their written statement submitting therein that the complainant has made the last payment on 27.5.2008 and 95% construction work has been completed and the complainant himself not made the payment as and when demanded by the respondent no.1.  The booking of the flat in question was already cancelled vide letter dated 15.9.2012 and it was intimated to the complainant that his allotment of flat has been cancelled and booking amount stands forfeited.  There is no deficiency in service on the part of the respondents. The complainant has not suffered any mental agony or harassment at the hands of the respondents.  The complainant is not entitled for any relief and compensation and thus, prayed for the dismissal of the present complaint.

3.        We have heard the arguments advanced by the learned counsel for both the parties at length. All the documents have been perused very carefully and minutely.

4.        Ld. Counsel for the respondents has submitted that the complainant has made the last payment on 27.5.2008 and 95% construction work has been completed and the complainant himself not made the payment as and when demanded by the respondent no.1.  The booking of the flat in question was already cancelled vide letter dated 15.9.2012 and it was intimated to the complainant that his allotment of flat has been cancelled and booking amount stands forfeited.  There is no deficiency in service on the part of the respondents. The complainant has not suffered any mental agony or harassment at the hands of the respondents.

          Ld. Counsel for the complainant has submitted that the respondent has tried to mislead the Forum by taking the false plea, where in the written statement, the respondent has specifically stated that the construction work of the project will likely to be completed within six months that would have been expired by 12/2015.  The respondent has prepared false and fabricated documents i.e. alleged letter dated 17.5.2008, 11.6.2008, 12.8.2008, 6.7.2009, 5.7.2012, 6.8.2012, 15.9.2012 and notice dated 1.11.2012 and these letters were never sent by the respondent to the complainant.  The complainant has never committed any default in making the payment.  The registration form has never been signed by the complainant and thus, the alleged terms and conditions is not binding upon the complainant.  The respondent has no right to forfeit the deposited amount of the complainant since there is apparent deficiency in service on the part of the respondent.

         Now the main question arises for consideration before this Forum is whether the  complainant is entitled to get any relief from the respondents by way of present complaint or not?

          The perusal of the case file shows that the respondent floated the scheme for allotment of flats of various sizes in residential group housing project namely Apex Green at Sonepat and the complainant has deposited the huge amount with the respondents for the allotment of the flat in the said project. So, in our view, the complainant is the consumer of the respondent and this Forum has the jurisdiction to entertain, try and decide the present complaint.

          Now coming to the other issue whether the present complaint is time barred.  Ld. Counsel for the complainant has argued his case vehemently relying upon the case law titled as Prasad Homes Pvt. Ltd. Vs. E.Mahender Reddy and others, STPL)CL) 2009 482 NC and copy of order dated 3.9.2012 passed by the Hon’ble National Commission, New Delhi in revision petition no.2267 of 2012.

          On the point of the complaint being barred by limitation, we also find force in the arguments advanced and law cited by the learned counsel for the respondents because the complainant has deposited the last payment with the respondents for Rs.49375/- on 27.5.2008 and in the para no.8 of the complaint, the complainant has admitted that an amount of Rs.1049375/- was received by the respondents till 8/2008, meaning thereby, after 8/2008, the complainant has not deposited any amount with the respondents and to some extent, the complainant himself is liable for his own act and deeds as he himself has not paid the installments in respect of the flat in question to the respondents.

          Ld. Counsel for the complainant has also submitted that the complainant has served the respondents with legal notice dated 16.03.2015, so the limitation starts in favour of the complainant w.e.f. 16.3.2015 and it cannot be said that the present complaint is time barred.

          But we find no force in this contention of the ld. Counsel for the complainant,  because from the issuance of legal notice the limitation period cannot be counted as legal notice can be issued to any person at any time. 

          The complainant has filed the present complaint on 10.04.2015.  In the written statement, the respondents have submitted that the booking of the flat in question was already cancelled vide letter dated 15.9.2012 and it was intimated to the complainant that his allotment of flat has been cancelled.  So, in our view, the limitation for filing the present complaint before this Forum was two years i.e. with effect from 15.9.2012 to 15.9.2014.

So, keeping in view the letter dated 15.9.2012 written by the respondents to the complainant, it proves that the present complaint is barred by limitation.

          The bare perusal of the documents available on record itself shows that after making the last payment in May, 2008 to the respondents by the complainant, there is no correspondence made by the complainant with the respondents except the legal notice dated 16.03.2015. It is the complainant himself, who never approached in the office of the respondents for remaining payment or for any other query after 8/2008.  There is also nothing on the file from the side of the complainant to prove that the complainant ever responded to the letters  dated 17.5.2008,  11.6.2008,  12.8.2008,  24.12.2008,  6.7.2009,  5.7.2012, 6.8.2012, 15.9.2012 written by the respondents.  It seems that there is no deficiency in service on the part of the respondents. In our view, the complainant himself is liable for his own acts and deeds and for the said lapses on the part of the complainant himself, the respondents cannot be held liable in any manner and no directions of any kind can be given to the respondents.  In our view, there is no merit in the present complaint and the same deserves to be dismissed.  We order accordingly.  The parties are left to bear their own costs.

D

          Certified copy of this order be provided to both the parties free of cost.

File be consigned to the record-room.

 

(Prabha Wati)        (DV Rathi)                 (Nagender Singh-President)

Member DCDRF        Member DCDRF                   DCDRF, Sonepat.

Announced: 02.11.2015