ORDER

21.11.2024

Sh. Sanjay Kumar, President

1. The factual matrix of the present case is that complainant had applied for a flat for his residence in the project of the OP named Gyatri Life. It is further stated that a residential flat numbered T-606 in Terra Towers for a total price of Rs.34,37,556/- was allotted to him.
2. It is stated that the flat was to be delivered within a period of 40 months from the date of signing of the allotment letter with a grace period of 6 months thereof as mentioned in clause 16 of the allotment letter. It is further stated that complainant had paid a sum of Rs.3,13,008/- as initial amount along with his application.
3. It is stated that to finance the allocated flat, as per arrangement by the other party, the developer, a tripartite hire purchase agreement was executed between the complainant, other party as builder and L&T Housing Finance Ltd,. as financier. It is stated that the financier had agreed to advance a loan of Rs.27,40,000 to be disbursed periodically at different stages of construction. It is further stated that the broad terms of loan are mentioned in para 3 of tripartite agreement, which envisage that loan shall be repayable by the borrower in EMI as mentioned therein from date of possession of the flat. It is stated that till such time, the developer will pay Pre-EMI towards the interest accrued on loan disbursed by the L&T Financed to the developer on behalf of the borrower from time to time.
4. It is stated that the loan amount of Rs.27,40,000/- sanctioned by L&T to the complainant was to be disbursed to the Developers in different tranches based upon stages of construction. It is further stated that the interest accrued under the subvention scheme was payable by the developers as Pre-EMI. It is further stated that the liability of the complainant as such, would arise only after the possession of the flat is delivered. It is stated that the same was re-confirmed by the OP through their letter of 23.09.2015. It is further stated that as per loan agreement, so executed, the loan amount was to be refunded by the complainant in 240 installments of Rs.26261 effective from the date of possession. It is further stated that the lender, while executing the tripartite agreement had obtained 4 undated blank cheques duly signed by the complainant to be attached to the agreement.
5. It is stated that the project was started by the developers with big pump and show but did not do well. It is further stated that some blocks of the said project were raised in terms of super structure but the work came of a grinding halt. It is stated that the complainant had been visiting the site as well as office of the developer to abreast himself with the latest. It is stated that however, on each visit, the management would give some excuses for delay in construction informing that work at sight shall start soon and timely delivery of the flat was assured. It is further stated that in the meanwhile, the L&T Housing Finance Ltd., who had financed the project and entered into tripartite agreement, on the back of the complainant, took out the blank cheque which they had attached to the agreement, filled in a sum of Rs.78783/- and presented to the complainant’s bank. It is stated that the same were dishonoured for insufficient funds.
6.  It is stated that the consequent thereof, the lenders L&T Housing Finance Ltd. filed criminal complaint under section 138 of Negotiable Instruments Act for bouncing of cheque in January, 2019. It is further stated that the complainant had to seek bail and face the matter before the MM for nearly three years. It is stated that the same was finally dismissed for non-prosecution on 10.02.2023. It is stated that it had adversely affected the reputation of complainant so much so his CBIL score gone into negative. It is stated that the complainant had requested the OP for cancellation of the flat since it was not in sight, while the financier had instituted a criminal case under the stringent provision of the Negotiable Instruments act. It is stated that the other party in deference with the request of the complainant, cancelled the allotment vide their letter dated 02^nd April 2019. It is further stated that “we hereby accept your request subject to confirmation by bank and shall proceed with the settlement of loan in consultation and negotiation with the L&T Housing Finance Pvt. Ltd.
7. It is stated that the complainant had been demanding refund of his deposit and interest thereon in pursuant to his application for cancellation mentioned above. It is further stated that however, the OP had been avoiding payment stating that the financier is yet to settle with them. It is stated that the complainant insisted that he had nothing to do with the financier since his liability for repayment of loan would arise only after the possession is delivered to him while Pre-EMI are payable the OP. It is stated that as the allotment had been cancelled, the complainant was entitled to refund of his initial deposit and interest thereon. It is further stated that however, despite the best efforts of the complainant, the OP has miserably failed to concede to this request. Therefore, this complaint to the Hon’ble Consumer Commission.
8. It is stated that after long persuasion by way of telephonic calls and visit to the office the other party, the reminders were addressed on 5^th Feb., 2024 and 29^th Feb. 2024 for refund of his deposit, but no refund has been made till date. It is further stated that there had been deficiency in service on the face of it since the other party has failed to deliver the flat as per allotment letter and further after cancellation of the flat, has not refunded the deposit. It is stated that the other party has played fraud on the innocent buyer whose credibility has been arson and his CBIL has gone into negative thus denying him the facility of raising loan from the financial institution. It is stated that the other party have indulged in unfair trade practices by booking the flats and later abandoning the scheme. It is stated that it has caused great harassment and mental torture by deprivation of his cherished home as well as loss of creditability for raising of loan in future and even to secure a credit card due to fall in CBIL.
9. It is stated that complainant is entitled to interest on his deposit which he had made in 2015 for securing a flat for his residence. It is further stated that the same is claimed at the rate of 18% PA as per market practices and usages.
10. Complainant is seeking direction against OP to refund Rs.3,13,008/- being the initial amount paid by the complainant along with interest calculated at the rate of 18% PA, to pay pendetide interest, to pay compensation for the physical harassment and mental torture caused to the complainant and his family, to pay cost of litigation and any other order which deems fit and proper.
11. We have heard Sh. S.J Salwan counsel for complainant and perused the record.
12. As per allegations in the complaint a residential flat was allotted to complainant by OP1 for total price of Rs.34,37,556/- and complainant paid Rs.3,13,008/- from 29.06.2015 to 02.08.2016. The complainant also got financed the flat from L&T Housing Ltd. The complainant admitted that a cheque of Rs.78,783/- was got dishonored and a complaint was filed under section 138 of N.I. Act in January 2019 but after four years dismissed for non prosecution on 10.02.2023. It is admitted that complainant made request for cancellation of allotment vide letter dated 02.04.2019. It is admitted that cause of action lastly arose on 02.09.2019 for taking legal remedy against OP1 and 2.
13. Let us peruse section 69 which provides the limitation:

Section 69. Limitation period

1. The District Commission, 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 Commission,  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 District Commission or the State Commission or the National Commission, as the case may be, records its reasons for condoning such delay.

14. Now applying the above provision in the present case, admittedly, cause of action arose lastly on 02.09.2019 and as per limitation the complainant has to file the present complaint on or before 01.09.2021. Present complaint filed on 18.09.2024, there is a delay of three years. The complainant has not disclosed any sufficient cause for condonation of delay. We are of considered opinion that present complaint is barred by limitation, therefore, dismissed. No order as to cost. File be consigned to record room.
15. 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 an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  21.11.2024.

SANJAY KUMAR                 NIPUR CHANDNA                       RAJESH

       PRESIDENT                             MEMBER                                MEMBER