MS. NIPUR CHANDNA, MEMBER
ORDER
20.03.2024
1. A complaint under Section 35 of Consumer Protection Act filed. In brief the facts are that complainant booked plot of 311 sq.yard in the project of OP named as “Manokamna” situated in Jaipur. It is alleged by the complainant that she deposited a sum of Rs. 31,000/- by way of cheque bearing no. 357073 dated 28.09.2007 against the booking of the said plot. It is further alleged by the complainant that she was allotted plot no. G3 in the project vide letter dated 22.12.2009. It is further alleged by the complainant that she paid total sum of Rs. 3,53,000/- from 28.09.2007 to 20.04.2011 as and when demanded by OP. After completion of the payment OP issued allotment letter dated 22.12.2009 in favor of the complainant. It is further alleged by the complainant that despite making the entire payment in respect to the plot in question OP failed to execute buyer agreement. It is further alleged by the complainant that despite depositing the entire cost of the plot in question and repeatedly requesting the OP to handover the plot in question no steps were taken by OP to handover the peaceful possession of the plot to the complainant. Being aggrieved by the conduct of the OP complainant approached this Commission for redressal of her grievance.
2. The present complaint case is on admission stage. We have heard Ld. Counsel for complainant Ms. Arpita Khandelwal on admission as well as limitation and have perused the record.
3. Along with his complaint, the complainant has placed on record the copy of registration letter issued by OP, copy of allotment letter, site plan, copy of the receipt issued by OP against the payment deposited, copy of statement account. Complainant has failed to place on record any communication in respect to the demand of possession made by her to the OP.
4. It is submitted by Ld. Counsel for complainant that despite receiving the total cost of the plot in the year 2011 and issuing the letter of allotment in favor of the complainant OP failed to handover the possession of the plot in question, hence, the cause of action is continuing one as such the present complaint case is well within limitation.
5. Let us peruse the relevant provision in respect of limitation provided under Consumer Protection Act, 2019.
As per section 69 of Consumer Protection Act, 2019: -
- 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.
- Notwithstanding anything contained in subsection (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, as the case may be records its reason form condoning such delay.
6. A perusal of the aforesaid statutory position reflects that the complaint should be preferred within a period of two years of the accrual of cause of action.
7. Admittedly, the OP allotted plot no. G3 to the complainant vide allotment letter 22.12.2009. As averred by complainant she had deposited last installment for a sum of Rs. 10,000/- with OP on 20.04.2011. In the letter dated 22.12.2009 the OP had assured the complainant that the registration as well as possession of the plot in question would be handed over to her very soon. No date of registration or handing over the possession of the plot was mentioned by OP in its letter dated 22.12.2009, hence, in our view the first cause of action for filing the present complaint arose vide letter dated 22.12.2009. The complainant had deposited last payment with the OP on 20.04.2011. Secondly, the cause of action for filing the complaint in our opinion arose on 20.04.2011 when the complainant deposited the entire payment asked by OP against the plot in question.
8. Where there is an oral agreement between the parties in respect to the possession of the unit and no specific date or period mentioned in respect to the handing over the possession of the unit then reasonable time will be considered. On the issue of the reasonable time for handing the possession of the unit we are guided by the judgment of Hon’ble Supreme Court in case titled as Fortune Infrastructure Vs. Trevor D’lima in Civil Appeal NO. 3533-3534 of 201 decided on 12.03.2012 it has been held as under:-
“When no date of possession is mentioned in the agreement the promoter is expected to handover the possession within reasonable time and the period of three years is held to be reasonable time”.
9. Admittedly, in the present complaint case no specific time for registration as well as possession of the plot was given to the complainant by OP as such the reasonable time for calculating the period of handing over the possession of the plot to the complainant be calculated from the last date of payment i.e. 20.04.2011 upto three years as such the last date of handing over the possession of the plot will come to 20.04.2014, which also gave substantive cause of action to the complainant for filing the complaint. Admittedly, there is no correspondence between the complainant and OP 1 in respect to the possession of the plot in question since April, 2011. For the sake of arguments if we considered that the substantive cause of action for filing the present complaint finally arose on 20.04.2014. Complainant ought to have file the present complaint within 2 years of the accrual of cause of action i.e. 20.04.2016. The complainant approached this Commission and filed the present complaint on 07.02.2024 i.e. after 08 years of the accrual of the substantive cause of action for filing the present complaint. The complainant ought to have file the present complaint within two years of the accrual of cause of action but the complainant failed to do so.
10. In view of the above discussion, we are of the considered opinion that substantive cause of action for filing the present complaint arose on 20.04.2011, the complainant ought to have file the present complaint within two year of the accrual of cause of action. The complainant has filed the present complaint on 07.02.2024 i.e after the delay of 08 years the present complaint is therefore barred by limitation, hence, dismissed. File be consigned to record room.
11. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving the application from the parties in the registry. Order be uploaded on www.confonet.nic.in.
Announced in open Commission on 20.03.2024.
Sanjay Kumar Nipur Chandna Rajesh
President Member Member
