JUSTICE V.K. JAIN, PRESDING MEMBER (ORAL)

          The complainant booked a plot with the petitioners in a project namely ‘Ómaxe City’ which the OP was to develop in Sonepat.  Vide letter dated 25.10.2006, plot no.179 in the aforesaid project was allotted to the complainant.  No sale agreement however, was executed between the parties.  Out of the agreed sale consideration of about Rs.19 lacs, the complainant paid Rs.8,64,000/- to the petitioners.  The allotment came to be cancelled vide letter dated 08.03.2010 alleging therein that the complainant had failed to make the balance payment in terms of the demand raised by the petitioners.  The complainant therefore, approached the concerned District Forum by way of a Consumer Complaint filed on 11.05.2015, seeking restoration of the allotment or refund of the amount paid by him to the petitioners with interest and compensation.  

2.      The complaint was resisted by the petitioners who admitted the allotment made to the complainant but alleged that he had failed to pay the balance amount and therefore, the allotment was cancelled vide letter dated 08.03.2010 and the booking amount was forfeited. 

3.      The District Forum, vide its order dated 17.02.2017, allowed the Consumer Complaint and directed refund of the amount of Rs.8,64,000/- with interest. 

4.      Being aggrieved from the order passed by the District Forum, the petitioners approached the concerned State Commission by way of an appeal.  The complainant also instituted a cross-appeal seeking possession of the allotted flat as against the refund allowed by the District Forum.

5.      Vide impugned order dated 19.03.2019, the State Commission dismissed the appeal filed by the petitioners but allowed the appeal filed by the complainant to the extent that the interest was enhanced from 9% per annum to 12% per annum, litigation expenses were increased to Rs.50,000/- and a compensation of Rs.2,00,000/- was also awarded to the complainant.  Being aggrieved from the order passed by the State Commission, the petitioners are before this Commission. 

6.      The cancellation letter dated 08.03.2010, to the extent it is relevant, reads as under:

          You are aware that you have not complied with any of your commitments thereby causing immense financial losses to your company, amounting to Rs.828000.00 and interest of Rs.322463.00 is due on the aforementioned installments.  You did not care to make any payment and default seems to be intentional. 

          In light of the above, your allotment of Unit No.228, in “Rohtak Plots” has been cancelled due to your persistent default in payments and Rs.480000.00 paid by you towards the Booking stands forfeited due to the resultant losses to the Company as aforesaid and which is in accordance with the terms of the allotment letter you had agreed to abide by.  The balance (if any) will be refunded to you as per the terms of the allotment. You have, thus, lost all your lien, right or claim on the said Unit No.228, in “Rohtak Plots” and we are free to deal with the said unit in any manner we like. 

7.      The receipt of the cancellation letter has not been disputed by the complainant in the Consumer Complaint filed by him.  Rather, he has admitted the cancellation of the plot and sought restoration of the allotment or in the alternative, refund of the amount paid by him to the petitioners with compensation etc.  The allotment having been cancelled on 08.03.2010, a cause of action to institute the Consumer Complaint accrued to the complainant on the date the said letter was received by him.  The letter was sent to him through First Flight Couriers Ltd. on 09.03.2010 and therefore, would have been received within a few days thereafter. In any case, the date of receipt of the cancellation letter has not even been disclosed in the Consumer Complaint.  In terms of Section 24A of the Consumer Protection Act, the complaint ought to have been instituted within two years of the accrual of the cause of action.  Therefore, the complainant ought to have approached the concerned District Forum within two years of his having received the cancellation letter sometime in March 2010.  The complaint was hopelessly barred by limitation when it was instituted in May 2015, more than five years after the allotment had been cancelled.

8.      The learned counsel for the complainant relies upon the decision of this Commission in M/s Ravi Development Builders and Developers & Ors. Vs. Jayantibhai V Ranka & Anr. RP No.1058 of 2014 decided on 18.02.2014.  This judgment however, would be of no help to the complainant since in the said complaint, the complainants had denied having received the alleged termination letter.  On the other hand, in the present case, the complainant has not denied receipt of the letter dated 08.03.2010 and has rather specifically referred to the cancellation in the Consumer Complaint filed by him and sought restoration of the allotment.  The cancellation of the plot has been expressly referred in para 6 of the Consumer Complaint.  No application in terms of the proviso to Section 24A (2) of the Consumer Protection Act was filed by the complainant seeking condonation of the said delay which in any case, was for as much as more than three years. 

9.      In State Bank of India Vs. M/s B.S. Agricultural Industries (I), II(2009) CPJ 29 (SC) decided on 20.03.2009, the Hon’ble Supreme Court inter-alia held as under:     

47. Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the consumer fora thus:

"24A. Limitation period - (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in sub- section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay."

8. It would be seen from the aforesaid provision that it 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. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, `shall not admit a complaint' occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own 5whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.

10.    In view of the mandatory provisions of Section 24A of the Consumer Protection Act, the fora below were not justified in entertaining the Consumer Complaint without an application seeking condonation of delay in instituting the complaint.  The impugned orders therefore, cannot be sustained and are accordingly set aside.  The Consumer Complaint is dismissed with no order as to costs. 

11.    The learned counsel for the petitioners states that despite dismissal of the Consumer Complaint by this Commission, the petitioners will refund the refundable amount to the complainant alongwith 8% interest on that amount from the date of cancellation till the date the said amount is refunded to the complainant.  The complainant, if he is willing to accept the refund in terms of the statement made by the learned counsel for the complainant, shall convey his willingness to the petitioners within two weeks from today and the payment shall be made within six weeks thereafter.