STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 22.06.2018
Date of final hearing: 17.10.2023
Date of pronouncement: 08.12.2023
CONSUMER COMPLAINT NO. 380 of 2018
IN THE MATTER OF: -
Ashok Varma S/o Late Lt. Col. (Retd.) Anand Sarup Varma, R/o Flat No. 601, Block-F, Deluxe Apartment, AWHO, Vikram Vihar, Sector-27, Panchkula (HR)-134116.
…..Complainant
Versus
- Adjutant General’s Branch, Integrated Headquarters of Ministry of Defence (Army), Kashmir House, Rajaji Marg, DHQ PO, New Delhi-110011 (through its Adjutant General).
- Army Welfare Housing Organization (AWHO), Kashmir House, Rajaji Marg, New Delhi-110001, through its Managing Director.
- Project Manager, Army Welfare Housing Organization (AWHO), Vikram Vihar, Sector-27, Panchkula (HR)-134116.
…..Opposite Parties
CORAM: Naresh Katyal, Judicial Member
Argued by:- Sh. Baldev Sharma, counsel for complainant.
Sh. A.K. Tiwari, counsel for opposite parties with Ms. Major Saloni Parmar in person.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Facts in this complaint are: complainant’s father late Lt. Col. (Retd.) Anand Sarup Varma had applied for allotment of dwelling unit in Sector-27, Panchkula in housing project of Army Welfare Housing Organistion (AWHO) through booking letter dated 17.08.2006 in response to scheme advertised by OPs in October-2005. Probable year for completion of construction of apartment against scheme was year 2008 as mentioned in advertisement. Dwelling Unit i.e. Deluxe Apartment Flat No. 601, Block-F situated in Vikram Vihar, Sector-27, Panchkula in AWHO housing project was allotted to Lt. Col. (Retd.) Anand Sarup Varma vide letter dated 25.10.2012. OPs fixed tentative price originally at Rs.23,96,000/-, which was enhanced to Rs.26,70,000/- at the time of allotment and further enhanced to Rs.29,75,000/- after allotment. OPs further charged some amount from time to time on account of escalation of cost. Total Rs.40.06 lacs was deposited towards cost of dwelling unit, as per accounts statement issued by OPs showing total cost Rs.40,06,190/- of dwelling unit.
2. After death of Lt. Col. (Retd.) Anand Sarup Varma, dwelling unit was transferred in name of complainant vide re-allotment/transfer order dated 08.05.2015. Possession of apartment was handed over by OPs on 10.03.2014. Handing/taking over possession certificate is dated 10.03.2014. After transfer of apartment; complainant approached OPs in November-2015, in March-2016 vide letters dated 04.11.2015 and 19.03.2016 to pay interest on deposited amount of Rs.40.06 lacs on account of delay in giving possession of apartment. OPs neither gave interest nor responded to those letters. Case of complainant is identical to those allottees, who have been paid interest on account of delay in handing over possession of apartments in compliance with order dated 16.02.2015 passed by Hon’ble National Consumer Redressal Commission in Revision Petition No. 4696 of 2013. Complainant sent legal notice dated 29.12.2016 to OPs for payment of interest @15% p.a. for period of two years on total deposited amount of Rs.40.06 lacs on account of delay in handing over possession of apartment. OPs neither gave interest, nor responded to legal notice. In this manner, complainant has alleged discrimination to him; unfair trade practice on the part of OPs and suffering of harassment in convenience, mental agony to him. It is pleaded that cause of action has arisen in his favour on 04.11.2015 and again on 19.03.2016, when complainant approached OPs through his letters dated 04.11.2015 and 19.03.2016 to pay him interest. It further arose to him on 29.12.2016 when he sent legal notice demanding interest. On these pleas; he filed complaint thereby seeking directions against OPs: to pay him Rs.12,01,800/- towards interest @15% p.a. for period of two years on total deposited amount of Rs.40.06 lacs on account of delay in handing over possession of apartment along with future interest @15% p.a. till realization of amount. Further, direction has been sought to pay him: compensation of Rs.50,000/- due to unfair trade practice of OPs; compensation of Rs.50,000/- for harassment, frustration and mental agony and Rs.10,000/- towards litigation expenses. Entire text of complaint is supported by complainant’s affidavit.
3. In reply, OPs have asserted that claims and reliefs are ill-conceived and not maintainable. Complainant has filed mala fide, frivolous and vexatious complaint based on false facts. He is not a consumer. It is pleaded that: DXA Flat No. F-601 and parking space No. F-20 and open car park No. F-61 allotted to Lt. Col. Anand Sarup Varma was ready for handing over vide OP’s letter dated 30.10.2013 and he took physical possession thereof on 10.03.2014 without any protest. He continued to occupy and enjoy the apartment till he died on 08.11.2014. Consequent to his death; Flat was transferred to complainant on 08.05.2015. Cause of action, if any, to impugn alleged cost of dwelling unit and also of alleged delay in handing over the possession; complaint ought to have been filed, on or before 09.03.2016. It has been filed after 09.03.2016 and thus barred by limitation. It is pleaded that after sanctioning of layout of building plan by HUDA; development of group housing project comprising 483 DUs commenced on 22.10.2007. OPs have asserted, reasons in detail, in para No. 6 of its defence regarding construction and handing over the possession. These details are not required to be mentioned herein for reason that there is no denial on the part of OPs that complainant took possession of flat on 10.03.2014. The defence set up by OPs is supported by affidavit of Brig. Sanjiv Dutt.
4. Parties led their respective evidence. Complainant tendered his duly sworn affidavit Ex.CW-1/A towards his affirmative statement on oath, vide which he has testified entire contents and text of his complaint. He has also relied upon documents Ex.C-1 to Ex.C-3/A and Ex.C-4 to Ex.C-10 and also documents Ex.C-10/A and Ex.C-11, while appearing in court on 21.08.2019. He closed his evidence on 21.08.2019. OPs submitted affidavit Ex.OPW-1/A dated 17.01.2020 of Col. R.K. Mengi, to testify its pleaded stance on oath, besides relying upon documents Ex.OP-1 to Ex.OP-18 and closed its evidence through statement dated 20.01.2020 of Naib Subedar Balbir Singh (Retd.).
5. Both Learned counsel appearing for parties have been heard. Learned counsel appearing on behalf of complainant has urged that in view of conjoint reading of contents of complaint and written version of OPs; it is proved that possession was delivered to late father of complainant on 10.03.2014. It is urged that construction of dwelling unit was to be completed in year-2008. Complainant became owner of dwelling unit after his father had unfortunately expired on 08.11.2014, by virtue of transfer of ownership order dated 08.05.2015. It is urged that total amount of Rs.40.06 lacs was deposited towards cost of allotted dwelling unit, which was much beyond the cost originally assessed at Rs.23,96,000/- and thereafter enhanced to Rs.29,75,000/-. Further, it is urged that complainant had been writing to OPs through his letters dated 04.11.2015, 19.03.2016 and also through legal notice dated 29.12.2016 for demanding interest @15% p.a. for two years period on deposited amount of Rs.40.06 lacs, on account of delay in handing over its possession to his late father by OPs. Hence, his complaint filed on 22.06.2018, is within limitation as cause of action, which had accrued earlier, in favour of his late father on 10.03.2014, had devolved upon him, being his legal heir. Hence, it is urged that complainant is entitled to claim relief of interest on delayed possession along with other ancillary reliefs as prayed in complaint.
6. Per contra, learned counsel for OPs has urged that complaint was filed on 22.06.2018. Cause of action has accrued in favour of father of complainant on 10.03.2014 when he obtained physical possession of allotted dwelling unit, without any protest. Complaint was required to be filed within limitation period of two years as per Section 24-A of Consumer Protection Act, 1986 by reckoning period of limitation from 10.03.2014. It is urged as preliminary submission that this complaint is time-barred.
7. Above being the submissions put forth by learned counsel appearing for parties to this lis; the sole moot proposition before this Commission, before discussing the complainant’s entitlement qua other reliefs as prayed in complaint as per factual scenario is: As to whether this complaint has been filed within limitation period or not?
8. Complainant has testified through his duly sworn affidavit Ex.CW-1/A that initial cost of flat was Rs.23,96,000/- which was ultimately enhanced to Rs.29,75,000/-. OPs also charged some more amount from time to time on account of escalation of cost of allotted apartment. As per statement of account Ex.CW-3/A amount of Rs.40.06 lacs was deposited against dwelling unit i.e. Flat No. 601, Block F, Vikram Vihar, Sector-27, Panchkula. It is urged that since probable year of construction of apartment was 2008, as per advertisement Annexure C-1 but apartment in question became ready for possession as per OP’s stance on 30.10.2013. As per vociferously urged contention; there was proved default on the part of OPs to deliver possession of allotted apartment to complainant’s father.
9. There is no denial that complainant’s late father had ever faulted in paying amount towards cost of allotted apartment. It is admitted on conjoint perusal of document Ex.C-5 and Ex.OP-17 (Colly.) that late father of complainant had obtained possession of dwelling unit on 10.03.2014. Cause of action, to assert right to claim interest on delayed possession of apartment had accrued in favour of complainant’s father, during his lifetime, on 10.03.2014 itself. Thus, limitation to file complaint for redressal of grievance regarding claim of interest on delayed possession had began to run on 10.03.2014. Once, limitation had began to run, it will never stop its running, except in case of some legal disability confronted to complainant. Limitation period, continued to run, even on the ill-fated day (08.11.2014) when complainant’s father had unfortunately expired. It was still running when complainant served letter dated 04.11.2015-Ex.C-6, after obtaining ownership rights of allotted apartment on 08.05.2015. Limitation period was over, when complainant served next letter dated 19.03.2016 Ex.C-7 upon OPs and so also when he served legal notice dated 29.12.2016 Ex.C-10 upon OPs. These communications by stretch of legal interpretation would not enhance the limitation period. The contention on behalf of complainant that cause of action for the purpose of reckoning period of limitation of two years as Section 24A of Act, has arisen in his favour, firstly on 04.11.2015, secondly on 19.03.2016 and finally on 29.12.2016 is wholly misconceived.
10. Admittedly, complainant has filed this complaint on 22.06.2018 i.e. after expiry of period of two years meant for filing it as per Section 24A of Consumer Protection Act, 1986. His complaint, so filed on 22.06.2018 is time-barred. Nothing stopped complainant to file his complaint within prescribed period of limitation as he was not facing any legal disability. Learned counsel appearing for complainant could not put forward any meaningful contention in order to wriggle out from bar of limitation. Meaning thereby, on this front complainant was not vigilant.
11. In view of above subjective analysis qua the poser put before this Commission regarding bar of limitation to file this complaint, this Commission answers said poser against complainant. Only inescapable conclusion is that this complaint is time-barred. It is dismissed, being barred by limitation and ordered as such. Reliefs prayed for by complainant in his complaint have become redundant at legal pedestal, as a flowing consequence.
12. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
13. Copy of this judgment be provided to parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
14. File be consigned to record room.
Date of pronouncement: 08th December, 2023.
Naresh Katyal
Judicial Member
Addl. Bench-II
