1.      Heard Mr. D.S. Kauntae, Advocate, for the complainant and Mr. Praveen Bahadur, Advocate, the opposite party.

2.      Bhupender Kumar has filed above complaint, for directing the opposite party to (i) refund Rs.4700000/-deposited by the complainant with interest @18% per annum, compoundable quarterly from 11.08.2012 till the date of payment; (ii) pay Rs.2000000/-, as compensation for fraudulently selling of Apartment C-904, in the project “Oyster Grade” to the complainant; (iii) to pay Rs.1500000/-, as punitive damages for gross deficiency in the service and unfair trade practices for selling the Apartment No.C-904, provisionally allotted to the complainant having been sold to a third party without giving any intimation to the complainant; (iv) pay Rs.100000/- as litigation costs; (v) pay Rs.500000/-, as compensation for mental agony and harassment; and (vi) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainant stated that the opposite party was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite party launched a group housing project, in the name of “Oyster Grande” at Village Khedki Majra, Sector-102/102-A, Gurgaon, Haryana offering to sale residential floors of a particularly specified dimensions which includes 3BHK apartments, with servant quarters in the year 2011 and made wide publicity of its facilities and amenities. Believing upon the representations and promises of the opposite party, the complainant booked a 3BHK+S flat in the said project on 18.10.2012 and deposited booking amount of Rs.800000/- vide cheque dated 16.10.2012, encashed on 05.11.2012. The opposite party, vide provisional allotment letter dated 01.01.2013, allotted Flat No.C-904, to the complainant. As per demand, the complainant deposited Rs.1000000/- on 11.02.2013, Rs.500000/- on 09.05.2013, Rs.500000/- on 27.05.2013. Date of dispatch of Builder Buyers Agreement for the signatures of the complainant was 14.08.2013. Date of signing the Apartment Buyer’s Agreement by and between the complainant and the opposite party was on 11.09.2013. A perusal of Apartment Buyer’s Agreement shows that the opposite party has charged Rs.100/- per sq.ft. of the area as Interest Free Maintenance Security, Rs.750000/- as Car Parking space, Rs.579924/, as External Development charges and Rs.150000/- as Power Backup Charges. Basic Sale Price of Rs.10380055/- was increased to Rs.12535004/-. As per demand, the complainant deposited Rs.700000/- on 21.10.2013, Rs.2 lakhs on 25.11.2013, Rs.500000/- on 07.03.2014. The opposite party sent demand notices dated 26.11.2013 for Rs.1448668/- and 24.03.2014 for Rs.555278/- as these demand were not of the construction levels as per payment plan, the complainant did not deposit it. Various meeting and physical visits made by the complainant to seek the redressal from the Directors of the project/plan but not even a single meeting ever held because of refusal of the Directors of the opposite party on the false pretext of busy in work or out of station or gone to other sites or not present in the office or no knowledge of whereabouts. Article 5 of the agreement provides 48 months period from execution of the agreement or from commencement of construction, whichever is later, with grace period of six month for completion of construction. Said period expired on 13.03.2018 but the construction was not completed. Then the complaint was filed on 12.07.2019.              

4.      The opposite party has filed its written reply on 11.11.2019 and contested the matter. The opposite party admitted booking of the flat on 18.10.2012, issue of provisional allotment letter dated 01.01.2013, allotting Flat No.C-904, to the complainant, execution of Apartment Buyer’s Agreement dated 14.09.2013 and deposits made by the complainant. The opposite party stated that the complainant in the booking application has opted for “construction link payment plan”. The opposite party issued demand for instalments on 07.08.2013, 26.11.2013, 24.03.2014, 04.04.2014, 20.05.2014 03.07.2014, 07.08.2014 15.09.2014 and 15.10.2014 and its reminders also emails but the complainant failed to pay these instalments. The opposite party issued pre-cancellation notice dated 28.11.2014 giving an opportunity to the complainant to deposit the balance amount till 15.12.2014. But the complainant did not respond. Then the agreement dated 14.09.2013 was cancelled vide letter dated 27.02.2015 and the amount deposited by the complainant was forfeited. The complaint was filed on 12.07.2019, concealing material facts. The complaint is liable to be dismissed as time barred. The opposite party completed the construction and obtained “occupation certificate” from statutory authority on 20.12.2017. The opposite party sold Apartment No.-C-904 to Mr. Rohit Goel and Ms. Manisha Rani through conveyance deed dated 16.05.2019 for Rs.1.11 crores although its price at the time of agreement dated 14.09.2013 was Rs.12535004/-. The complaint has been filed suppressing material facts. The complainant booked the flat for better return. However, after booking, the market of real estate has gone down. The complainant could not fulfil his contractual obligations.

5.      The complainant filed his Rejoinder Reply, in which, he has denied service of letter dated 27.02.2015, cancelling the agreement. The said letter was dispatched on the address as “Bhupender Kaur, Nangalraya’ while the correct address of the complainant as mentioned in the agreement was different. Due date of possession as per Article-5 of the agreement, was 14.09.2017 and grace period expired on 14.03.2018. The complaint was filed on 12.07.2019 and it was well within time. The complainant filed Affidavit of Evidence of Bhupender Kumar. The opposite party filed Affidavit of Evidence of Naveen Mittal. Both the parties have filed short synopsis of arguments.

6.      I have considered the arguments of the arguments of the counsel for the parties and examined the record. Postal Department used to write address on the postal receipts in short. Due to which, the complainant is challenging service of cancellation letter dated 27.02.2015. The complainant has not challenged that payment plan was “construction link payment plan”. The complainant made last payment on 07.03.2014. The opposite party raised demands of other instalments through letter dated 26.11.2013, 04.04.2014, 03.07.2014 and 15.09.2014. Reminders dated 24.03.2014, 20.05.2014, 07.08.2014 and 15.10.2014, emails dated 04.04.2014, 21.08.2014, 12.09.2014 and 16.09.2014 and Pre-cancellation notice dated 28.11.2014. Service of these demands, reminders, emails and Pre-cancellation notice has not been disputed. Some of the demands were filed along with the complaint. After last deposit made on 07.03.2014, the complainant remained silent till filing of the complaint on 12.07.2019. As per agreement dated 14.09.2013, total cost of the flat was Rs.12535004/- out of which total Rs.47/- lacs was deposited by the complainant. Payment plan was “construction link payment plan” as such the complainant cannot expect possession without payment of instalments. The complainant has committed default from 26.11.2013. The complaint is long barred by limitation. The complainant has not filed any application for condonation of delay.         

ORDER

In view of aforesaid discussions, the complaint is dismissed as time barred.