STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 09.07.2021
Date of final hearing: 10.08.2023
Date of pronouncement: 05.09.2023
First Appeal No.140 of 2021
IN THE MATTER OF:-
Monica Goel, aged 51 years, wife of Sh. Sanjay Goel, R/o H. No.623, Sector-17, HUDA, Jagadhri, District Yamuna Nagar.
....Appellant
Versus
- Ansal Properties & Infrastructure Ltd., 115, Ansal Bhawan, 16 Kasturba Gandhi Marg, New Delhi, through its Director.
- Ansal Properties & Infrastructure Ltd., Ratauli Road, Sushant City, Yamuna Nagar through its Manager.
- Rohilla Property Dealer, Bye Pass Road, Sector-18 Market, near Pandit Automobiles, Yamuna Nagar through its proprietor Sh. Lakshay Rohilla.
…..Respondents
CORAM: Naresh Katyal, Judicial Member
Argued by:- Ms. Poorav Gupta, proxy counsel for Sh. Akshit Aggarwal, counsel for the appellant.
Sh. Sunny Tyagi, counsel for respondent No. 1 & 2.
None for respondent No.3.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Unsuccessful complainant-Monica Goel has assailed legality of order dated 01.04.2021 passed by learned District Consumer Disputes Redressal Forum- Yamuna Nagar at Jagadhri (In short “District Consumer Commission”) vide which her complaint has been dismissed in limni, being barred by period of limitation.
2. Briefly, put in the facts: one plot No. B/1588, measuring 532.2 sq. yards situated at Sushant City, Yamuna Nagar was earlier allotted to Sh. K.D. Gupta. It was re-allotted/transferred in name of complainant on payment of Rs.5,32,459/- and this fact is reflected from letter dated 01.08.2011-Ex.C2 issued by OP No.1. As per her stance, she had made payment of Rs.38,31,693/- in total which is evident from Annexure A-6 appended along with appeal. As per her plea; OPs No.1 & 2 did not handed possession of plot to her and postponed the matter, on one or another pretext, which necessitated her to file complaint, in which she has sought direction against OPs to refund the amount paid by her. Complainant supported the pleas in complaint through her duly sworn affidavit.
3. On prima-facie analyzing the pleas; learned District Consumer Commission-Yamuna Nagar vide order dated 01.04.2021 (impugned herein) has dismissed the complaint being time-barred, thereby giving rise to filing of this appeal by complainant/appellant.
4. On notice issued in appeal; respondents No. 1 & 2 have appeared through Sh. Sunny Tyagi, Advocate. Initially, one Lakshya Rohilla- authorised representative of respondent No. 3 appeared on 10.05.2022. Thereafter, none has appeared on behalf of respondent No.3.
5. Learned counsel appearing for appellant/complainant has urged that learned District Consumer Commission has grossly erred in law, while non-suiting her, by dismissing her complaint being time barred. It is urged that once complainant has paid hefty sum of Rs.38,31,693/- and not been delivered possession of plot from respondents, then, on this scenario of facts; each passing day will gave her fresh cause of action.
6. Per Contra, learned counsel for respondents No. 1 & 2 has urged that there is absolutely no illegality in the impugned order dated 01.04.2021 passed by learned District Consumer Commission, Yamuna Nagar at Jagadhri. Rightly, the complaint has been thrown over-board, being time-barred.
7. This Commission has critically analyzed above rival submissions put before it.
8. From the facts visible from complaint, it is deciphered that: initially, original allottee- Sh. K.D. Gupta of plot No.B-1588 measuring 532.2 sq. yards had paid Rs.5,32,459/- to respondents No. 1 & 2. Plot Buyer Agreement was executed on 21.03.2011 between OPs and Sh. K.D. Gupta. Amount (Rs.5,32,459/-) has been credited in the name of complainant as she paid that amount along with premium to allottee. On this fact, as per letter dated 01.08.2011-Ex.C-2; plot No. B-1588 was transferred in the name of complainant. Thereafter, complainant has paid further amount, to respondents’ No. 1 and 2. In all, as per plea in complaint and Annexure A-6 appended with this appeal, she has paid Rs.38,31,693/- to respondents No. 1 & 2. It is specific plea taken in Para No. 7 of complaint that: “no possession of plot allotted to complainant has been delivered to her as respondents have not fulfilled their obligation for developing the colony”. With this quality plea raised in complaint, this Commission is of opinion that: each passing day would give complainant a fresh cause of action, as cause of action would be continuing and will not be barred by limitation. While observing so, this Commission gains strength from the judgment of Hon’ble National Consumer Commission, New Delhi rendered in F.A. No. 986 of 2016 decided on 01.02.2018 in case titled as “Saroj Kharbanda Versus Bigjo’s Estate Limited and others” wherein it has been held as under:-
“It is evident, therefore, that relying upon the order made by this Commission in “Satish Kumar Pandey & Anr. Vs. M/s Unitech Ltd.” (supra), this is a case of continuing cause of action. As reproduced earlier, it has been stated in the said order that the period of limitation under Section 24A of the Act starts only, after the seller flatly refuses to give possession of the property. In the present case, there is no such refusal to give possession on record and hence, it is a case of continuing cause of action. Moreover, it is a well-established principle that even if the complainant had failed to deposit further amount with the OP Builder, the latter had no right to forfeit the amount deposited with them. At best, they could have cancelled the allotment made in favour of the complainant and returned the amount deposited with them, after making certain deductions in accordance with the terms and conditions of the agreement.”
9. OPs, in present case cannot be allowed to sit over the issue of not delivering possession of allotted plot to complainant, even after expiry of over a decade. This factual aspect remains undisputed form the side of respondents No. 1 and 2, as these respondents could refute the factual aspects through any meaningful and logic submission. In wake of this, it is held that: legal remedy available to complainant cannot be thrown over-board for inept attitude of OPs/respondents No.1 and 2 by not delivering possession of allotted plot to complainant, despite having received amount of Rs.38,31,693/-. Complainant has sought refund of this amount from OPs No. 1 and 2 through her complaint.
10. Learned District Consumer Commission has committed gross illegality, while not considering the ratio of law laid down by Hon’ble National Consumer Commission, New Delhi in Saroj Kharbanda’s case (supra) which is squarely applicable to present case. In cited judgment there was no refusal to give possession and on this fact it has been observed that it is a case of continuing cause of action. Facts of present case are also identical viz-a-viz facts of cited judgment, as complainant/appellant herein too has not been delivered possession of allotted plot and as per pleaded facts there is no refusal on the part of OPs No. 1 and 2 on this front. This being so, impugned order dated 01.04.2021 passed by learned District Consumer Commission in complaint No. 146 of 2021 titled as “Monica Goel versus Ansal Properties & Infrastructure Ltd. and others” cannot stand at legal pedestal. It is accordingly set aside. As a legal corollary so flowing; this appeal is allowed. Complaint is remanded back to learned District Consumer Commission, Yamuna Nagar at Jagadhri for its disposal as per law.
11. The parties to the lis are directed to appear before learned District Consumer Commission-Yamuna Nagar at Jagadhri, either self or through authorized representative, on 21.09.2023. Thereafter, learned District Consumer Commission would endeavor to dispose off the complaint on its merit, as expeditiously as possible, preferably within a period of one year from the date (21.09.2023)- when parties to the lis would appear before it.
12. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
13. A copy of this judgment be provided to all the 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: 05th September, 2023
Naresh Katyal
Judicial Member
Addl. Bench-II
