STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 21.11.2017
Date of final hearing: 17.10.2023
Date of pronouncement: 08.12.2023
CONSUMER COMPLAINT NO. 742 of 2017
IN THE MATTER OF: -
Col. Aditya Sharma C/o Dr. Ashok Sharma Kudart, Villa Boileaugung, Shimla-5, Himachal Pradesh now residing at House No. B-11, Sector-1, adjacent to new SBI Shimla, Shimla, Himachal Pradesh -171009.
…..Complainant
Versus
- Army Welfare Housing Organization through its Managing Director, Kashmir House, Rajaji Marg, New Delhi-110001.
- The Project Manager, Army Welfare Housing Organization, Sector-27, Panchkula. …..Opposite Parties
CORAM: Naresh Katyal, Judicial Member
Argued by:- Sh. Viresh Dahiya, proxy counsel for Sh. R.D. Singh, 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 complaint are: Opposite parties floated scheme in year-2005 for development of Group Housing Project to be constructed and developed at Sector-27-Panchkula for serving, ex-service personnel and their dependents. Complainant booked one flat/unit in his name, vide OP’s letter dated 18.08.2006. As per clause -3 of this booking letter; possession of premises was proposed to be delivered in year-2009. OPs fixed cost of flat at Rs.23,96,000/-, whereas while allotting flat; cost of flat was enhanced, arbitrarily and illegally to Rs.26,75,000/-. OPs failed to offer physical possession of premises in question, even after lapse of three years from date of allotment. Allegedly, OPs gave frivolous reasons for delay in handing over physical possession that it would be offered by December-2012. It again issued letter dated 19.02.2013 saying that possession would be offered in June-2013. Vide letter dated 31.10.2012; complainant was allotted flat No. G-305 on third floor. He paid all installments as per schedule, except last and final installment which was to be paid on receipt of direction from OPs. Last and final installment was also paid with interest, prior to taking actual physical possession and issuance of possession certificate dated 02.01.2016 from OPs.
2. Precisely, it is alleged that OPs failed to offer timely possession of flat. It is alleged that complainant invested huge amount with an idea to live in premises in question, but purpose of purchasing site/flat stood defeated as physical possession has been given after lapse of over 10 years from booking. It is pleaded that complaint is within limitation. On these allegations; complainant has prayed for issuance of directions against OPs: to pay interest @18% on amount deposited by him from respective date of deposit till realization, to pay Rs.1.00 lacs for mental tension and delay, to pay punitive damages to the extent of Rs.50,000/- and to pay Rs.11,000/- as litigation expenses. 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: flat No. G-305 and parking space No. G-15 allotted to complainant was ready for handing over vide OP’s letter dated 15.04.2014, but complainant failed to take over the possession of flat and took physical possession thereof on 02.01.2016. Cause of action, if any, to impugn alleged cost of dwelling unit and alleged delay in handing over the possession; complaint ought to have been filed, on or before 14.04.2016. It has been filed after 14.04.2016 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 02.01.2016. The defence set up by OPs is supported by affidavit of Brig. Sanjiv Dutt.
4. Parties led their respective evidence. Complainant himself has appeared and tendered his duly sworn affidavit Ex.CW-1/A towards his affirmative statement on oath, vide which he has testified the entire contents and text of his complaint. He has also relied upon documents Ex.C-1 to Ex.C-22 and closed his evidence through his own statement, dated 28.05.2019. OPs submitted affidavit dated 16.10.2019 of Lt. Col. Pankaj Subha in order to testify its pleaded stance on oath, besides relying upon documents Ex.OP-1 to Ex.OP-24 and closed its evidence through statement dated 17.10.2019 of Naib Subedar Balbir Singh (Retd.).
5. It is evident from record of complaint that after 17.10.2022, for next three dates (14.12.2022, 28.04.2023 & 13.07.2023) nobody has appeared on behalf of complainant. On 17.10.2023 also main counsel for complainant has not appeared. Learned proxy counsel appeared on behalf of complainant and urged that in view of conjoint reading of contents of complaint and written version of OPs; it is proved that possession was delivered to complainant on 02.01.2016, which as per allotment letter dated 18.08.2006, was to be given within three years i.e. in the year-2009, as it is mentioned in this letter that completion of project is likely to take approximately three years. Hence, it is urged that complainant is entitled to claim relief of interest on delayed possession along with other ancillary reliefs as prayed.
6. Per contra, learned counsel for OPs has urged that complaint was filed on 21.11.2017. Cause of action has accrued in favour of complainant after 15.04.2014 which was OP’s letter showing that flat No. G-305 and parking space No. G-15 allotted to complainant was ready for handing over. Complainant took possession on 02.01.2016. Complaint was 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 15.04.2015. 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 enhanced to Rs.26,70,000/-. OPs also charged some more amount from time to time on account of escalation of cost and enhancement of compensation. It is asserted and testified that he paid all installments according to schedule and directions of OPs, except last final installment which was to be paid on receipt of directions from OPs. He has further testified that he has paid Rs.39,34,390/- as per statement of account dated 26.06.2013-Ex.C-9 and receipts of payment Ex.C-10 to Ex.C-20. Last and final installment was also paid, prior to taking actual possession and issuance of possession certificate from OPs dated 02.01.2016-Ex.C-8. He was allotted Flat No. G-305 on fourth floor vide letter dated 31.10.2012 (Ex.C-6). Note: As per letter Ex.C-6 third floor has been allotted. It is evident from statement of account Ex.C-9 dated 26.06.2013 that total cost of complainant’s dwelling unit: Deluxe Apartment was Rs.39,34,390/- and against this; Rs.28,78,439/- has been paid. Balance outstanding due was Rs.10,55,949/-. Note mentioned underneath in statement of account Ex.C-9 reads:-
“If you pay the balance amount due Rs.1055949 on or before 15 Nov 13, 13 Feb 14, you may deduct Rs.10635 as 1% rebate on Rs.1063490 and thus pay Rs.1045314 only.”
9. As per receipt Ex.C-20, complainant had paid Rs.10,45,314/- on 07.04.2014. Meaning thereby, on 07.04.2014 he had paid desired amount (outstanding due) meant towards cost of his dwelling unit. Here, letter Ex.OP-23 dated 31.10.2013 of OPs requires an express mention. As per this letter; which has been written by OPs’ in furtherance to its earlier letter of even number dated 31.10.2012; OPs have specifically stated that they would be in a position to commence handing over dwelling units w.e.f. July-2013 onwards. Purportedly, word ‘July-2013’ has been inadvertently stated, if clause-5 of this letter Ex.OP-23 mentioned at page-2 is perused, which states that allottees can pay the amount as mentioned in statement of accounts (Ex.C-9 herein applicable to complainant herein) up to 13.02.2014. Further, by reading clause-16 of this letter, it is also deciphered that: 13.02.2014 was the last date of payment. It is also mentioned therein that: in case the dwelling unit is not taken over within this period you (allottee) will be required to pay ‘care taking charges’ as mentioned in sub-clause (a) to sub-clause (c) of Clause -16 of letter Ex.OP-23.
10. On imparting critical analysis of above facts, it is established that allottee was to take possession of allotted dwelling unit by paying the outstanding due amount as per their respective statement of account up to 13.02.2014. Precisely, in this complaint in hand, Rs.10,55,949/- was outstanding due against complainant according to statement of Account Ex.C-9 dated 26.06.2013 meant for him. By extending him benefit of note (specified in statement of account Ex.C-9); he paid Rs.10,45,314/- on 07.04.2014. Obviously, he could have taken possession of dwelling unit on 07.04.2014, on the strength of letter Ex.OP-23. Curiously enough, complainant had obtained possession of dwelling unit from OPs on 02.01.2016 as per document Ex.C-8/Ex.OP-24. There is no averment by complainant in his complaint: as to what he had been doing from 07.04.2014 till 02.01.2016 and why he had not taking possession on 07.04.2014. In any case, cause of action had accrued in his favour to file complaint, initially on 13.02.2014 which was last date for making payment of outstanding due amount as per his statement of account Ex.C-9 and to take over the possession of dwelling unit AND subsequently on 07.04.2014, when he had made payment vide receipt Ex.C-20 towards balance amount of Rs.10,45,314/- as per his statement of account Ex.C-9 which reflects his status of payments. His complaint is cogently silent as to when cause of action has accrued in his favour. Admittedly, he has filed this complaint on 21.11.2017 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 21.11.2017 is time-barred. His contention that period of two years meant for filing complaint had began in his case w.e.f. 02.01.2016, when he obtained possession of his dwelling unit, is bereft of credence. Reason is obvious. Nothing stopped complainant to obtain possession of dwelling unit firstly on 13.02.2014 and lastly on 07.04.2014 or within close proximity of time from 07.04.2014, if letter Ex.OP-23 is critically analyzed. Complainant was also required to specifically assert in his complaint, as to what compelling circumstances confronted to him by OPs, had prevented him from taking possession of his dwelling unit from OPs, hence after 13.02.2014 and 07.04.2014, till 02.01.2016. His complaint is silent on these facts too. More so, no document, worth the name has been placed in evidence by complainant showing his justification about his taking possession of dwelling unit, belatedly on 02.01.2016. 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
