Per Mr.Narendra Kawde, Member
[1] Complainant is a partnership firm dealing in real estate. During the process of public auction of plot bearing no.11A, Sector 5, Kalamboli, Navi Mumbai put forth by the opponent CIDCO participated in the auction by bid. Complainant’s bid was successful who paid EMD of Rs.10 lacs to the opponent. However, the final vacant and peaceful possession of the said flat was not delivered by the opponent CIDCO allegedly due to variations in terms and conditions set forth at the time of auction. On this background, complainant wanted to surrender their claim and avail refund of Rs.10 lacs paid as EMD. At this point of time, the dispute arose between the parties as opponent cleared certain obstructions/encroachments for delivery of peaceful and vacant possession of the plot. However, complainant showed no interest and refused to take over the possession by paying balance lease premium consideration in the stages set out in the bid documents. Complainant has filed this consumer complaint alleging deficiency in service against the opponent as EMD of Rs.10 lacs along with interest as EMD had not been refunded as yet.
[2] Opponent CIDCO contested the claim and the contentions by filing written version. While admitting the action of the disputed plot, it is stated by opponent that the complainant was under statutory obligation to pay lease premium of Rs.99,68,100/- for the subject plot admeasuring 1130.17 sq.mtr. and said amount was required to be paid in two equal installments after adjusting EMD Rs.10 lacs already paid. Payment of installments of lease premium on the stipulated date as per term of the agreement was essence of contract. Opponent had removed all the impediments [encroachments] on the said plot. 22 KVA transmission line was not passing through the plot as alleged by the complainant. However, in order to maintain safety distance as per Indian Electricity Act, 1956 the electric lines were shifted. Allotment of the said plot was subject to the provision of New Bombay Disposal of Land Regulations, 1975. After having cleared all these obstacles, complainant wad duly intimated to pay the installments of lease premium as agreed upon. However, complainants refused to abide by the offer and contrary to the stipulations to the agreements put forth revised offer, which was lower than the base price determined by the opponent. Therefore, opportunity was extended to the complainant as per revised offer and therefore, opponents issued the revised offer by letter dated 03/10/1997. Though, belatedly complainant expressed their consent to accept the said offer, but failed to comply the statutory obligation to pay lease premium Rs.99,68,100/- in two installments. Since the complainant failed to abide by terms and conditions of the agreement, opponent empowered to forfeit the earnest money deposit to recover compensation for loss or damage. Therefore, the earnest money paid by the complainant have been rightly forfeited which is perfectly legal.
[3] Heard learned advocate Mr.Uday Wavikar and learned advocate Mr.P.B.Kadam for the complainant and opponent respectively. We also perused the documents on record.
[4] Opponent CIDCO by letter dated 03/04/1998 informed the complainant to comply with the terms and conditions about acceptance of the offer since all the obstacles including milk booth, taparies, huts etc. removed and directed to acknowledge this offer else the offer would stand cancelled and EMD paid will be refunded. Thereafter, the complainant went on corresponding with the opponent. However, opponent allegedly failed to refund the amount.
[5] We find that the last correspondence between the parties addressed by the opponent is on 09/06/1999 directing the complainant to attend the opponent’s office for meeting to sort out the issue. However, the said meeting reportedly was cancelled and thereafter nothing is on record to show as to what was happened.
[6] Point of limitation in filing this consumer complaint was not raised in the written version, but it was argued at the time of hearing. Therefore, it was considered being a question of law. On going through the record, we find that cause of action for filing this consumer complaint arose on 09/06/1999 in favour of the complainant. There is no subsequent commitment on behalf of the opponent. Consumer complaint has been filed on 29/07/2002 which is clearly barred by the limitation as provided by Sec.24-A of the Consumer Protection Act, 1986.
[7] Complainant relied on - 2009 [I] Supreme 762, Karnataka Power Transmission Corpn. & Anr. Vs. Ashok Iron Works Pvt.Ltd.
As against this opponent relied on the following citations :-
- 2009 (3) CPR 97 (SC), U.T.Chandigarh Administration & Anr. Vs. Amarjeet Singh & Ors.
- Consumer complaint no.CC/99/568, M/s.Shah & Chheda Reality Builders & Developers vs. CIDCO Ltd., decided on 02/12/2013 by the State Consumer Disputes Redressal Commission, Maharashtra.
[8] In so far as reliance placed by the complainant on the authority, (supra), is concerned, this is not applicable to the present case since the facts are different in the decided cases. As against this, reliance of the opponent in the matter of - 2009 (3) CPR 97 (SC), U.T.Chandigarh Administration & Anr. Vs. Amarjeet Singh & Ors is proper in principle since the disputed plot was to be bought by the complainant by way of public auction. Therefore, complainant is not a consumer. The authority relied upon by the opponent in consumer complaint no.CC/99/568 is not applicable to the case because in that case the complainant sought possession of the plot.
[9] Having considered the facts and circumstances of the case, the complaint suffers from legal lacunae i.e. limitation since not filed within the limitation and moreover as held by the Hon’ble Apex Court in the matter of - 2009 (3) CPR 97 (SC), U.T.Chandigarh Administration & Anr. Vs. Amarjeet Singh & Ors., complainant cannot be held to be consumer. Therefore, the complaint is liable to be dismissed. Hence, we proceed to pass the order.
ORDER
- Consumer complaint stands dismissed with no order as to costs.
- One set of the complaint compilation be retained and rest of the sets be returned to the complainant.
- Copies of the order be furnished to the parties free of cost forthwith.
Pronounced
Dated 31st July, 2015.
