BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 19^TH DAY OF AUGUST 2022

   ORDER

SRI.K.S.BILAGI, PRESIDENT

This complaint has been filed through Power of attorney holder of the complainant under section 35 of C.P.Act 2019 (herein after referred as “Act”)  against the OPs for the following reliefs.

a)       Direct the OPs to jointly and severally pay a sum of Rs.1,00,000/- together with interest thereon @ 24% p.a., from 22.09.2007 till realization to the complainant.

b)       Direct the OPs to jointly and severally pay a sum of Rs.4,00,000/- to the complainant, towards the harassment, inconvenience and mental agony suffered by the complainant due to the negligent attitude of the OPs.

c)       Award costs and such other reliefs.

2.       The brief facts of the complaint is as follows:

OP1 assured to provide two plots through MGM scheme to the complainant if the complainant introduced two additional members.  The complainant having paid Rs.1,00,000/- became a member of OP1 under membership No.BLILM-755/COOLVS2177.  He was surprised to receive two letters from the OP2 demanding additional payment for registration of the site.  There is no agreement or communication between the complainant and OP2.  OP1 also did not mention about payment to OP2.

3.       It is further case of the complainant that the clubs maintained by OPs have no proper facilities.  Despite repeated reminders, the complainant was surprised to receive the gift deeds dated 18.09.2017 in respect of sites bearing No.78 and 88 each measuring 1089 sq feet, formed in sy.No.66 and 67/1, Palasamuduram Phase-6, Andhra Pradesh state, Ananthapur District.  The complainant was neither present at the time of execution of the gift deeds nor copy of the gift deeds is furnished to him.

4.       The complainant further alleges that he was promised site at Country Vedic Spa, Devanahalli, Bangalore, NH 17, Bangalore.  But OP failed to provide the site.  Ultimately complainant issued legal notice dated 09.12.2015 calling the OPs to refund his money with interest at 24% p.a., from 22.09.2017.  There is was delay in filing the present complaint due to covid-19.  The act of the OPs amounts to deficiency of service.  Hence this complaint.

5.       In response to the notice, OPs appeared and filed version.  They contended that the complainant become a member under BLILM scheme vide membership No.BLMLM 755 is provided to the complainant.  Membership fee is not refundable.  Complainant had filed a complaint No.20/2015 on the file of the District Consumer Forum, New Delhi, for refund of Rs.1,00,000/- with interest at 24% p.a.  The said complaint came to be dismissed on the ground of delay and on the ground of territorial jurisdiction.

6.       It is further case of the OP that subsequently the complainant filed another complaint bearing No.1432/2017 on the file the Ist Additional District consumer Commission, Bangalore, and the same was rejected on 14.06.2017 as not maintainable.  Therefore present complaint is hit by principal of resjudicate.

7.       The two gift deeds dated 20.09.2017 have been executed in favour of the complainant in respect of two sites each measuring 1089 sq. feet.  Since the date of registration of gift deed dated 20.09.2017 the complainant has been enjoying the property covered under two gift deeds. There is no deficiency of service.  The OPs requested to dismiss the complaint.

8.       The complainant files affidavit evidence and relies on 7 documents.  OPs have filed affidavit evidence of authorized signatory of OPs and rely on 10 documents. Heard the arguments of the complainant only.  No argument is advanced on behalf of the OPs. Perused the records.

9.       The points that would arise for our consideration are as under:-

1. Whether the complainant proves deficiency of service on the part of the OP?
2. Whether the complainant is entitled to reliefs mentioned in the complaint?
3. What  order?

10. Our answer to the above points are as under:

       Point No.1:- Negative

      Point No.2:- Negative.

       Point No.3:- As per the final order.

                                      REASONS

11.   Point No.1 AND 2:    Both the parties have reiterated the respective contention in their affidavit evidence and they have relied on the documents.

12.   This complaint came to be filed on 01.03.2021 stating that the cause of action to file this complaint arose on 22.09.2007, 11.07.2017 and on 09.12.2019 when the complainant approached the OPs.  The complainant also contents that there was delay in filing the present complaint due to covid-19.

13.   It is relevant to note that the effect of covid-19 started in India on 20.03.2020.  As per the circular No.7 of National commission earlier order of the National commission and order of the Hon’ble supreme Court of India the time in filing the complaint due to covid-19 was extended till 29.05.2022 with effect from 20.03.2020.

14.      The complainant has not filed any application to condone the delay arising before the effect of covid-19.  The complainant can claim the reason of covid-19 effect only from 20.03.2020.

15.      In view of this back drop, it is necessary to consider the case set up by both the parties with regard to the limitation.  It is admitted and proved that the complainant became the member of OP1 by paying Rs.5,000/- + 95,000/- towards membership fee on 13.09.2007.  Ex.P1 is the power of attorney executed by the complainant in favour of Rajesh Kumar.  Ex.P2 bunch of two payment receipt indicating payment of Rs.1,00,000/- by the complainant to OP1 on 13.09.2007.   Ex.P3 indicates that on 16.11.2017 the complainant addressed a letter to OP2 and copy of OP1 stating that complainant does not know country condos i.e., OP2 and he had relationship with country club.  Ex.P3 is dated 16.11.2016 is the letter of complainant to OP2 country condos Ltd., wherein complainant claims that he does not know country condos.  If there is no privity of contract between the complainant and country condos ltd., OP2, we fail to understand why complainant has impleaded OP2 claiming relief against both the OPs jointly and severally.

16.      The complainant is also produced another letter dated 11.07.2017 wherein he neither know OP2 nor he had contacted with OP2, but Ex.P4 and P5 two registered gift deed dated 10.07.2017 clearly indicate that OP2 and one M/s Akhila Developers Pvt. Ltd., executed two gift deeds in favour of the complainant in respect of site bearing No.78 and 88 each measuring 1089 sq. feet.  If the complainant had no privity of contract with OP2, M/s country condos ltd., we fail to understand why he remained silent after receipt of two registered gift deeds in the year 2017.  Even though presuming for the sake of argument that the complainant was not present at the time of registration of two gift deeds on 20.09.2017, these gift deeds indicate that one Mr.Pandiparthi of Ananthapur, representative of the complainant was present and signed gift deeds on behalf of this complainant.  The complainant nowhere denied the execution of any power of attorney in favour of the Pandiparthi and does not know Pandiparthi, even presuming for the sake of argument that the complainant has not executed any authority letter in favour of Pandiparthi, we fail to understand why complainant has not initiated any legal action either against Pandiparthi or executed to the two gift deeds.  The silence on the part of the complainant for the period from 20.09.2017 till 01.03.2021 is a clear indication that the complainant has accepted and acted upon two gift deeds.

17.      According to the complainant he had approached the OPs and got issued legal notice dated 09.12.2019 but law is well settled that mere issuance of the subsequent notice does not save limitation.  The complainant is not right claiming continuous cause of action on the basis of legal notice dated 09.12.2019.  Once a period of limitation starts, it cannot be enlarge or extended by prolonged correspondence between the parties.  This reasoning of us is supported by the decision of Hon’ble National Commission reported in IV (2011) CPJ 114 in the matter between Ramrathan M.Srivas –vs- Jayanth H Takkar.  It is the specific case of the OPs that the complainant had approached District Consumer Commission, New Delhi and Ist Additional District Consumer Commission, Bangalore, for similar reliefs and both the complainants were dismissed.  Therefore OPs contended that the complaint is barred by limitation as well as principal of resjudicata.

18.      Ex.R1 is the application for membership submitted by the complainant.  Ex.R2 is the letter of OP1 dated 08.01.2014 to the complainant stating that the plot measuring 1089 sq. feet is ready at Vedic SPA Pvt. Ltd., and called upon the complainant to get the sale deed registered in respect of the two plots, each measuring 1089 sq. feet in his favour at Vedic SPA.  Despite receipt of this letter the complainant neither approached the OP1 for registration of sale deed nor approached jurisdictional Consumer Commission for necessary relief.

19.      Ex.R3 indicates that the complainant has filed complaint No.20/2015 against the present OP1 before the District Consumer Commission, new Delhi, which is dismissed the complaint on 28.07.2016 on the point of limitation as well as territorial jurisdiction.  The complainant has not disclosed this fact in his complaint.  It means the complainant has purposefully suppressed this fact in order to gain sympathy of this commission.  Ex.R4 also supports the contention of OPs that complainant had filed complaint No.1432/2017 against the present OPs for same relief and complaint came to be rejected on 14.06.2017.  The complainant also suppressed and this order neither challenged before the appellate authority.  It clearly indicates that the complainant has approached this commission with unclean hands.  Ex.R5 and R6 are the copies of gift deeds dated 20.07.2017 which are already referred.  Ex.R7 is the letter addressed to the complainant and Ex.R8 is the acknowledgement.  Ex.R9 is the copy of the aadhar card of the complainant.  Ex.R10 is the resolution issued in favour of RW1.

20.      Even though complainant claims that due to covid 19 effect, he could not file the complaint.  But this reason cannot be accepted. The period of two years from the date of cause of action to file this complaint arose to the complainant on 28.07.2016 and 14.06.2017.  The complainant has not filed this complaint within two years from these dates.  The complainant has not filed any application to condone the delay after expiry of two years period from 14.06.2017. at this stage it is relevant to refer the following two decisions of Hon’ble Supreme Court of India and Hon’ble National Commission

2022(3) CPR 1 (SC) Supreme Court of India between Hyundai Motor India Limited –vs- Shailendra Bhatnagar in Civil Appeal No.3001/2022,

Limitation will run from the day defect surfaces in a case.

2022(3) CPR 86 (NC) National consumer Commission New Delhi between Regional Provident Fund Commisioner-II –vs- Puranmal Ghasiram Bhavsar in R.P.No.92/2022 – Limitation: Limitation has to be applied with all its rigour when the statute so prescribes, though it may harshly affect a particular party.

 The complainant is not only barred by limitation, but complaint is also hit by principal of resjudicata.  The complainant approached this commission by suppressing the material facts and with unclean hand.  Therefore, he is not right in saying that there is deficiency of service on the part of the OPs.  The complainant not only failed to prove the deficiency of service of the OP but he is not entitled to any of the reliefs from the OPs.

21.      At one stage the complainant claims that he has no relationship and privity of contract with OP2 Country Condos Ltd., but strangely he seeks relief against the OP2 also.  Till this date the complainant has not initiated any legal action in any civil court for cancellation of two registered gift deeds.  The complainant is silent in this regard. In totality the complaint is not entitle to any of the relief. Accordingly we answer point NO.1 and 2.

22.      POINT NO.3: In view of the discussion referred above, complaint requires to be dismissed on the point of limitation, resjudicata and suppression of material facts. In the result, we proceed to pass the following

O R D E R

1. The complaint is dismissed without cost.
2. Furnish the copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 19^th day of August, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1 :

HAV*