NCDRC

NCDRC

FA/183/2007

ASHOK KUMAR SAINIA - Complainant(s)

Versus

DELHI DEVELOPMENT AUTHORITY - Opp.Party(s)

MR. B.D.SAINIA

21 Mar 2013

ORDER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
APPEAL NO. 183 OF 2007
 
(Against the Order dated 02/02/2007 in Complaint No. 95/1998 of the State Commission Delhi)
1. ASHOK KUMAR SAINIA
11665/1, SAT NAGAR,
KAROL BAGH
NEW DELHI - 110005
...........Appellant(s)
Versus 
1. DELHI DEVELOPMENT AUTHORITY
VIKAS SADAN, INA
NEW DELHI - 110023
-
...........Respondent(s)

BEFORE: 
 HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
 HON'BLE MRS. VINEETA RAI, MEMBER
 HON'BLE MR. DR. S.M. KANTIKAR, MEMBER

For the Appellant :
Mr. B.D. Sainia, Advocate.
For the Respondent :
Ms. Madhumita Bhattacharjee, Advocate

Dated : 21 Mar 2013
ORDER

PER VINEETA RAI, MEMBER 1. This first appeal has been filed by Ashok Kumar Sainia, Appellant herein and Original Complainant before the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission) being aggrieved by the order of that Commission, which had only partly accepted his complaint and had not given adequate compensation and relief as requested for from the Delhi Development Authority, Opposite Party before the State Commission and Respondent in this first appeal. 2. FACTS IN THE COMPLAINT : The case of the Appellant is that he had registered himself under the 982 Fifth Self-Financing Registration Schemeannounced by Respondent in May, 1982 and deposited a sum of Rs.10,000/- as registration deposit. He applied for a built up flat located in Vasant Kunj under Category-II in his application. Although he was one of the lucky ones in the draw of lots for allocation of Category-II flats located in Vasant Kunj, this was not communicated to him because of ulterior motives on the part of Respondent officers. He again, therefore, applied for Category-II flat in December, 1993 in response to a newspaper advertisement and as per draw of lots he was informed that a flat in Rohini (West Delhi) was allotted to him. On 20.04.1994 he sent a protest letter to the Respondent stating that he had never given West Delhi as an option in his application form and, therefore, his case be reconsidered and an allocation be made to him as per his option i.e. in the South Delhi area either in Sarita Vihar or Sheikh Sarai. If this was not possible, Respondent should refund the registration deposit of Rs.10,000/- alongwith interest due. Appellant also addressed a representation to the Lt. Governor bringing to his attention the conspiracy and malpractices adopted by unscrupulous employees of Respondent because of which he was deprived of having a flat in Vasant Kunj in 1983 although he had been declared lucky in the draw of lots for allotment of a flat in that area. Appellant also filed a complaint before the State Commission and requested that Respondent may be directed to allot Appellant a Category-II flat in one of the South Delhi localities preferably in Vasant Kunj at a price prevailing in the year 1983 and in case this is not possible, then he may be allowed to pay the current price of the flat on installment basis i.e. interest free installments spread over 15 years or so. Appellant also sought a compensation of Rs.7,62,300/- on account of deficiency and negligence as per the following: . Compound interest of penal nature on deposit of Rs.10,000/- @ 18% per annum (From 1982 to the date of realization). The quantum for 16 years is evaluated at Rs. 1,31,000.00 ii. Refund of Registration money Rs.10,000.00 iii. Loss due to expenses incurred on conveyance/transport for taking several rounds of DDA for 16 years Rs.40,000.00 iv. Loss due to expenses incurred on various representations/ communications with the respondents Rs.5,000.00 3. Respondent on being served filed a written rejoinder denying the above allegations. While admitting that the Appellant had got himself registered in the 5th Self-Financing Scheme in the year 1982 under Category-II by depositing Rs.10,000/-, it was denied that he had been lucky in the draw of lots for a flat in Vasant Kunj. The flat which the Appellant alleged was allotted to him was allotted to one Vidya Wanti Khurana being successful in the draw of lots dated 04.08.1982 and the demand-cum-allotment letter was sent to her and the possession of the flat was also taken by her. Appellant, however, insisted on the allotment of a flat in Vasant Kunj area, which was not possible since the scheme had been closed and no other flats were available in South Delhi. He was offered flats in two other areas which he failed to accept. Respondent further stated that Appellant did not raise this issue for 15 long years and filed a complaint before the State Commission only in 1998 in respect of a cause of action that had arisen in 1983. Therefore, the complaint was barred on the grounds of limitation. 4. The State Commission after hearing the parties and on the basis of evidence filed before it concluded that there was deficiency in service on the part of Respondent in not informing the Appellant about either the allotment or non-allotment of the flat in the Vasant Kunj area and directed that the amount of Rs.10,000/- deposited by him be returned alongwith 12% interest per annum on this amount from the date of its maturity till the date of the order. Apart from this, Respondent was also directed to pay Rs.50,000/- towards compensation and cost of litigation. The relevant part of the order of the State Commission is reproduced: . In our view the complainant had only applied for a flat in the locality of Vasant Kunj and the offer of the flat made by the OP in some different area like Rohini or Paschim Puri was not as per his application nor as per his choice and therefore, the OP is guilty of deficiency in service in not informing the complainant about either the allotment or non-allotment of the flat in Vasant Kunj area. 8. Whenever there is any lapse on the part of OP in not sending the allotment letter, it is the duty of service provider to serve the allotment letter personally on the consumer and to ensure that the consumer has received the allotment letter and should not act merely on the premise that letter has been dispatched and the consumer might have received the same. This is very valuable right of the consumer. 9. It appears to be a case of double allotment against the FDR of the applicant because of assignment of the same number and since the scheme of SFS has already been closed and it is not possible for the OP to allot another flat to the complainant. Taking over all view of the matter and in the given facts and circumstances of the case, we hereby award interest @ 12% p.a. on the amount of Rs.10,000/- deposited by the complainant from the date of its deposit i.e. 1982 till the date of this order. This interest is on account of non-refund of this amount during this period as interest @ 7% being paid by the OP is not applicable in this case as the complainant has suffered due to the incorrect maintenance of the record with them. Over and above the OP shall also pay Rs.50,000/- towards compensation and the cost of the proceedings. 5. Aggrieved by the order of the State Commission, the present first appeal has been filed. 6. Learned Counsels for both parties made oral submissions. 7. Counsel for the Appellant stated that the State Commission while accepting that there was deficiency in service failed to give the required relief in this case. On the other hand, the malafide and deficiency in service of the Respondent was apparent from the evidence on record. Counsel for the Appellant stated that after wrongfully and illegally denying the allotment of a flat in Vasant Kunj since he was successful in the draw of lots, Respondent failed to allot him a plot in South Delhi on two other occasions when he had applied for the same. Instead they allotted him flats in West Delhi, which was not his option. It was pointed out that even the State Commission had concluded that in respect of the flat in Vasant Kunj the problem occurred because of assignment of the same number to two people. Apart from this, despite specific request to return his registration deposit, Respondent failed to do so and instead replied to his letter after three years i.e. on 24.07.1997 (Exhibit A/46 before the State Commission) asking him to submit an affidavit that no allotment was made to him in 1983 at Vasant Kunj so that further action could be taken for refund of his deposit. It was, therefore, again submitted that the compensation of Rs.7,62,300/- as requested for by the Appellant was fully justified. 8. Counsel for the Respondent on the other hand stated that the case was hopelessly barred on grounds of limitation since the cause of action arose in the year 1983 and the Appellant filed the complaint before the State Commission in the year 1998. No application for condonation of delay was filed before the State Commission and, therefore, the State Commission erred in entertaining the complaint. It was also stated that Appellant contention that he was denied allotment of a flat in Vasant Kunj because of malafide intentions on the part of some employees of the Respondent is not correct and the correct position is that he was not successful in the draw of lots. Subsequently two other allocations were also made to him at Paschim Puri and Rohini, to which also there was no response, otherwise the refund of the registration deposit would have been made much earlier. It was stated that the Appellant is now claiming allotment of a flat only in the Vasant Kunj area because prices have escalated manifold in this area and he wants to take advantage of the same. 9. We have heard learned Counsels for both parties and have also carefully gone through the evidence on record. We note that it is a fact that although the cause of action arose in the year 1983 i.e. when the draw of lots for the Vasant Kunj area under the Self Financing Scheme took place, Appellant filed a complaint before the State Commission in the year 1998. Clearly this case is barred by limitation since as per Section 24A of the Consumer Protection Act, 1986 a complaint can only be filed within two years from the date when the cause of action arose. When we specifically asked the Counsel for the Appellant to explain this delay, including why an application seeking condonation of delay was not filed before the State Commission, he stated that since the Appellant had been corresponding with the Respondent throughout this period and in fact it was the Respondent who delayed in giving a reply to Appellant letter, there was no delay in filing the complaint. It was filed within months of the Respondent letter dated 24.07.1997 asking the Appellant to file an affidavit for refund of deposit. Prior to that Appellant was hopeful that he would be allotted a flat in South Delhi as requested for. We are unable to accept this contention since it is well established that exchange of letters between the parties does not extend limitation under the Consumer Protection Act, 1986. On the other hand, there are a number of judgments of this Commission as also of the Honle Supreme Court of India, including the most recent in State Bank of India v. B.S. Agricultural Industries (I) [AIR 2009 SC 2210], that Section 24A of the Consumer Protection Act, 1986, which prescribes limitation period for admission of a complaint, is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. 10. Keeping in view the facts of this case and respectfully following the judgment of the Honle Supreme Court in State Bank of India v. B.S. Agricultural Industries (I) (supra), we are unable to uphold the order of the State Commission since the complaint is clearly barred by limitation. The order of the State Commission is, therefore, set aside. The present first appeal stands dismissed. No costs.

 
......................J
ASHOK BHAN
PRESIDENT
......................
VINEETA RAI
MEMBER
......................
DR. S.M. KANTIKAR
MEMBER

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