STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 15.05.2017
Date of final hearing: 17.10.2023
Date of pronouncement: 08.12.2023
CONSUMER COMPLAINT NO. 308 of 2017
IN THE MATTER OF: -
Lt. Col. Har Kanwar Singh S/o Sh. K.J. Singh, now resident of Flat No. 402, GH-67, Sector-20, Panchkula.
…..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-2008. OPs fixed cost of flat at Rs.23,96,000/-, whereas while allotting flat; cost of flat was enhanced, arbitrarily and illegally to Rs.29,75,000/-. 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 13.10.2012; complainant was allotted flat No. G-202 second 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 ‘Handing/Taking over certificate’ dated 19.11.2014 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 9 years from booking. It is pleaded that he (Complainant) filed complaint No. 304 of 2016 before District Consumer Commission-Panchkula which was disposed off by holding that: complainant should file the said complaint before Hon’ble State Commission, if so advised. 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 harassment 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. Complaint is barred by limitation. Complainant was handed over the dwelling unit in question in a group housing project developed by the OPs at Sector-27, Panchkula on 19.11.2014. 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 18.11.2016. It has been filed after 15.05.2017 and is 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 19.11.2014. The defence set up by OPs is supported by affidavit of Brig. Sanjiv Dutt.
4. Parties led their respective evidence. Lt. Col. (Retd.) K.J. Singh- attorney of complainant appeared on behalf of complainant in court on 28.09.2018 and tendered his duly sworn affidavit Ex.CW-1/A towards his affirmative statement on oath. Orally, on oath, he testified in brief that he is attorney of complainant. Complainant applied for flat under Deluxe Type Apartment in Sector-27, Panchkula in October-2005, vide advertisement Ex.C-1 published by Army Welfare Housing Organisation (AWHO). Unit No. G-202 Second Floor Type-DXA, Sector-27, Panchkula was allotted to him. Flat was not constructed as per specification. There was no aluminum windows, vitrified/wooden laminated flooring, wooden chowkhats, POP Cornices and flush doors with both side teak ply. Complainant has paid Rs.40,55,760/- - Price of flat, interest on delayed payment etc. vide statement of account as on 15.01.2016 (Ex.C-5) possession of flat was handed over to complainant on 19.11.2014 vide ‘handing/taking over certificate’-Ex.C-6. No agreement was executed between complainant and AWHO. He testified complainant’s grievance against AWHO is that: as per advertisement the price of flat was Rs.23,96,000/- plus registration and application fee-Rs.90,500/- whereas they have charged Rs.40,55,760/-. Possession of flat was delayed, because it was to be handed over by end of year-2010 as mentioned in Ex.C-3. He has also relied upon documents Ex.C-1 to Ex.C-9. Complainant closed evidence on 28.09.2018. On behalf of OPs; Lt. Col. Pankaj Subha appeared in court as OPW-1 on 05.11.2018 and tendered in evidence; his duly sworn affidavit Ex.OPW-1/A in order to testify pleaded stance on oath, besides relying upon documents Ex.OP-1 to Ex.OP-33 and closed OPs’ evidence on 05.11.2018.
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 19.11.2014, which was to be given by end of year-2010 as mentioned in document Ex.C-3 (Clause-10 thereof). It is urged that complaint could not be filed earlier, after dismissal of complaint No. 304 of 2016 filed on 08.11.2016 before District Consumer Forum-Panchkula, vide Forum’s order dated 09.11.2016 as complainant was posted in front line station at Srinagar. Delay, if any, is liable to be condoned. In any case, as per contention, period of two years to file complaint before competent authority on the force of order dated 09.11.2016 of District Consumer Forum-Panchkula would start to run from 09.11.2016, when complainant’s complaint filed before District Consumer Forum-Panchkula was dismissed in limni. It is further urged that period from 19.11.2014 (date of possession) to 08.11.2016 (date of filing complaint before District Consumer Forum) stood automatically condoned, in view of settled legal principle that complainant had approached wrong forum and period spent therein (before wrong forum) is liable to be condoned. Collectively on these submissions, it is urged that complaint is within limitation and 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 instant complaint was filed on 15.05.2017. Cause of action has accrued in favour of complainant, hence after 19.11.2014, as he obtained possession of dwelling unit (G-202) on that day, in view of taking/handing over document Ex.C-6/Ex.OP-26. 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 19.11.2014. It is urged as preliminary submission that this complaint is time-barred and explanation given in complaint is not worthy of acceptance.
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 through his power of attorney has testified through attorney’s duly sworn affidavit Ex.CW-1/A that: initial cost of flat was Rs.23,96,000/- plus registration and application fee-Rs.90,500/- whereas OPs had charged Rs.40,55,760/-. It is asserted in complaint and testified through affidavit of complainant (filed along with complaint) as well as in affidavit of attorney that: complainant 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. The last and final installment was also paid along with interest, prior to taking actual possession and issuance of handing/taking over certificate from OPs dated 19.11.2014-Ex.C-6/Ex.OP-26. He was allotted Flat No. G-202 on second floor vide letter dated 19.11.2014 (Ex.C-6/Ex.OP-26).
9. Undisputedly, possession of dwelling unit No. G-202 second floor was obtained by complainant on 19.11.2014 which is evident from Ex.C-6/Ex.OP-26. Had, there been any grievance confronting complainant regarding alleged escalated cost of dwelling unit and qua delay in handing over its possession to him, he could have vouched for his grievance by filing complaint before appropriate forum/competent authority within limitation period of two years so prescribed under Section 24A of Consumer Protection Act, 1986. This limitation period of two years has begun to run against him from 19.11.2014 and stopped on 18.11.2016. Cause of action had accrued in favour of complainant on 19.11.2014 to file complaint before competent authority.
10. Foremost contention by counsel for complainant that: he approached District Consumer Forum-Panchkula by filing complaint No. 304 of 2016 on 08.11.2016, which was dismissed in limni on 09.11.2016 with liberty granted to him to approach competent authority and as such period of limitation of two years to file complaint before competent authority would start running against him from 09.11.2016 deserves to be noted only, in order to reject it ultimately. Complainant had already consumed almost two years period (from 19.11.2014- the date when he obtained possession and accrual of cause of action in his favour, till 08.11.2016- when he filed complaint). He did not initiate any legal recourse for redressal of his grievance during above mentioned period and finally woke up on 08.11.2016. More so, his complaint No. 304 of 2016 filed on 08.11.2016 was dismissed in limni on 09.11.2016 by District Consumer Forum-Panchkula. Strictly speaking, on 09.11.2016, complainant had still nine (9) days period left in his favor, in order to file complaint before competent authority because prescribed period of limitation of two years to file complaint, which had begun to run on 19.11.2014, was still running on 09.11.2016. This limitation period was to stop on 18.11.2016 and as such 9 days period was still available with complainant to file complaint before competent authority. In opinion of this Commission; this period of 9 days was enough time to approach appropriate forum. Curiously enough, he did not avail even that period of 9 days. His fanciful contention that: entire earlier period from 19.11.2014 to 08.11.2016 stood condoned automatically, once he filed complaint before District Consumer Forum-Panchkula on 08.11.2016 is bereft of credence. Such like contention is not acceptable in legal parlance. Learned counsel appearing for complainant could not put forward any meaningful contention in order to wriggle out from bar of limitation. Ancillary contention on limitation front put across to this Commission that complainant was posted in front area in Srinagar has no fundamental and acceptable base. In any case, this circumstance, even if it exist, cannot be termed as legal disability confronting complainant, in order to stop period of limitation from running.
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
