IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Decision: 19.08.2014

First Appeal- 677/2011

(Arising out of the order dated 11.08.2010 passed in Complainant Case No. 189/2010 passed by the District Consumer Disputes Redressal Forum, (East) Convenient Shopping Centre, Saini Enclave, Delhi-92)

In the matter of:

1) Mr. Sanjay Gupta

    A-100, Pandav Nagar

    Delhi-110092

2) Smt. Neera Gupta

    W/o Mr. Sanjay Gupta

    A-100, Pandav Nagar

    Delhi-110092                                                ….Appellants

Versus

    Smt. Bishnu Prabha Gouda

    W/o Sh. Bijay Chandra Gouda

    R/o S-439, School Block,

    Shakarpur,

    Delhi-110092                                              ….Respondent

CORAM

S.A.Siddiqui, Member (Judicial)

S.C.Jain, Member

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

S.A.Siddiqui, Member (Judicial)

1.    This appeal has been filed under section 15 of the Consumer Protection Act, 1986 (Hereinafter called the Act).

2.  Relevant facts of this appeal are that Complainant/Respondent was approached by Appellants/OPs for purchase of a flat in plot no. A-124, First Floor, Front Side, Aruna Park Shakarpur, Delhi on 20.05.2014  for a sum of Rs. 10,80,000/-. A sum of Rs. 10,000/- was paid as advance. An agreement was entered between the parties on 20.05.2005 whereby the Respondent was to pay the balance amount of Rs. 10,70,000/- at the time of completion of this transaction as full and final settlement. Complainant/Respondent further paid a sum of Rs. 2,00,000/- on 12.07.2005. The time of completion of transaction under aforesaid agreement was uptill 22.10.2005. One of the terms of the agreement was that in case OP/Appellants fail/refuse to complete transaction within due period of agreement, Complainant/Respondent will be entitled to double of the earnest money from the appellant. In case of failure on the part of the Complainant/Respondent to complete the transaction within stipulated period of time under the agreement, the Appellants will forfeit the earnest money of the Complainant. The OPs/Appellants had assured the Complainant/Respondent that as soon as building will be completed, they will allot a flat to the Complainant. The building was completed in the year 2009. However, despite repeated request the OPs/Appellants refused to make allotment of the flat as promised earlier. The Complainant/Respondent had to file a complaint case No. 689/09 before Civil Judge, Karkarduma against OPs but the same was withdrawn with liberty to file fresh complaint. Thereafter, the Complainant/Respondent served legal notice to OPs on 11.02.2010 but no reply to the legal notice was given. Hence, OPs/Appellants filed consumer complaint.  

3.        Notices were issued to the OPs/Appellants. The counsel for the OPs/Appellants appeared on due date i.e. 03.05.2010, but thereafter he did not appear and the case proceeded ex-parte. The OPs/Appellants were directed to allot the flat in question to the complainant after taking Rs. 8,70,000/- from the Complainant/Respondent. The Appellants/OPs were further directed to execute registered sale deed of the flat in favour of the Complainant/Respondent. They were also directed to pay Rs. 5000/- towards compensation and Rs. 1000/- towards costs.

4.          The OPs felt aggrieved and filed present appeal against impugned order dated 11.08.2010  passed by DCDRF (East) Convenient Shopping Centre, Saini Enclave in Complaint Case No. 189/10, inter-alia on the following main grounds besides others:-

i)     Impugned order dated 11.08.2010 was erroneous in as much as it was not passed in accordance with law. The Ld. District Forum failed to consider that the cause of action had arisen on 22.10.2005 and the complaint was filed on 17.03.2010 after a lapse of 4½ years. It was thus highly time barred under section 24(a) of the Act. The Complainant also did not file any delay condonation application.

ii)     The Ld. District Forum further failed to appreciate that Agreement to Sell and Purchase dated 20.05.2005, provided that the transaction was to be completed by 22.10.2005. The Complainant/Respondent however failed to complete the transaction within stipulated period of 2 years and therefore earnest money was liable to be forfeited. The Ld. District Forum completely ignored this important aspect of the agreement while passing the impugned order dated. 11.08.2010. The impugned order dated 11.08.2010 was therefore erroneous and not legally sustainable.

5)      The Complainant/Respondent did not file any reply.

6)    We have heard Sh. S.M. Tripathi, Counsel for the Appellant and Ms. Vishnu Prabha, Counsel for the Respondent. We have also carefully perused the record.

7)    Firstly, at the very outset the Ld. Counsel for the Appellant argued that the appeal was not time barred.  Impugned order dated 11.08.2010 was an ex-parte order. The copy of the order was received by the Appellants on 24.11.2011 and appeal was filed on 30.11.2011 well within a period of 1 month prescribed under section 15 of the Act. As against this, Ld. Counsel for the Appellant emphasised that the filing of the complaint before the Ld. DCDRF was highly time barred and this important aspect of the matter was ignored by the Ld. Distt.  Forum. The agreement of Sale and Purchase was signed on 20.05.2005. The transaction under the agreement was to be completed 22.10.2005. The complaint was filed on 17.03.2010 after a period of 4½ years. The complaint was thus hopelessly time barred; no delay condonation application was moved. The Ld. DCDRF should have taken into consideration of this important aspect of law.

8)      Secondly, the Ld. Counsel for the OP/Appellant appeared before the DCDRF only once on 03.05.2010. Thereafter,  the counsel neither appeared on subsequent dates nor he informed the OP/Appellants and therefore the case preceded ex-parte.  Not only this, the Ld. DCDRF, while passing ex-parte impugner order dated. 11.08.2010 should have gone through the contents of Sale and Purchase Agreement dated 20.05.2005. One of the important clause of the agreement was that in case the transactions was not completed by 22.10.2005, the earnest money was to be forfeited.  The impugned order was thus erroneous and liable to be set aside in the larger interest of justice. 

9)         The LD. Counsel for the Complainant/Respondent, on the other hand, argued that Counsel for the OPs/Appellants did appear before the Ld. DCDRF collected copy of the complaint but he did not appear on the next date. Therefore, the Ld. DCDRF rightly proceeded ex-parte. The impugned order dated 11.08.2010 was legally sound and does not suffer from any kind of illegality or irregularity.

10.          It is a fact that section 24(a) prescribes maximum 2 years period for filing a complaint but the period is counted from the date on which cause of action for filing of the complaint arose. In cases like this no straight jacket formula for determining the exact date of cause of action can be given. Cause of action in such cases are continuing and we are of the  considered view that filing of the complaint was not time barred.

11.        The next important aspect of the matter was Agreement to Sell and Purchase Dt. 20.05.2005 (Annexure-A-2) which was binding between the parties. This agreement provided that the transaction was to be completed uptill 22.10.2005. Clause 4 provided that in case second party (i.e. Complainant/Respondent) failed to complete transaction within stipulated period of time, the first party will forfeited the earnest money of the second party meaning thereby that in case the transaction was not completed by 22.10.2005 the earnest money deposited by the complainant was to be forfeited. In the present case the transaction was not completed by the due date i.e. 22.10.2005, but this most important aspect of the matter was not considered by the Ld. District Forum. We are therefore, of the firm view that the case deserves to be remitted back to the Court concerned for de-novo disposal in accordance with law failing which the interest of justice would suffer.

ORDER

12.     Accordingly, the appeal is allowed. Impugned order dated 11.08.2010 is set aside. The complaint case is remitted back to Ld. DCDRF concerned for fresh trial in accordance with law after giving the parties full opportunity of leading evidence in support of their cases. Since considerable delay has been caused due to the avoidable conduct of the OP/Appellants, Rs. 6000/- will be paid as costs for compensating the Complainant/Respondent. This amount will be paid on the first date of appearance before the DCDRF (East), Saini Enclave, Delhi on 22.09.2014.

13.      Let copy of the judgment be forwarded to DCDRF concerned for compliance. Copies of the judgment will be provided to the parties free of costs.

14.        FDR, if any, shall be released by the Registry in favour of the Appellants.