Per Shri S.R. Khanzode – Hon’ble Judicial Member:
(1) This is a complaint filed by shop purchaser against the builder inter alia claiming the following reliefs:
(a) That the Hon’ble Court be pleased to order the Opposite Party to hand over the peaceful and vacant possession of Shop No.2 in proposed Madhuri Building on Plot No.1, Sector 6, Airoli, New Bombay to Complainant.
(b) Alternatively, to direct the Opposite Parties jointly and severally to give alternate shop of the same size in the same locality for the same price without any additional cost or direct the Opposite Parties to pay to the Complainant the present market value of the shop prevailing in Sector No.6, Airoli, Navi Mumbai.
(c) This Hon’ble Court will be pleased to decree and Order the Opposite Parties jointly and severally to pay interest on the said sum of `7,46,182/- (Rupees Seven Lakhs Forty Six Thousand One Hundred Eighty Two only) from 8th day of March, 1995, till payment at the rate of 24% per annum.
(d) The Hon’ble Court will be pleased to order the Opposite parties jointly and severally to pay the damages for mental agony and physical suffering of the Complainant assessed at `1,00,000/-.
(e) Cost of this proceeding be paid by the Opposite parties to the Complainant.
(f) Further and other reliefs as the Complainant may entitle be granted.
(g) This Hon’ble Commission may be pleased to direct the Opposite Parties by an order of ad-interim injunction restraining the Opposite Parties, their servants, agents, marketing managers and anybody claiming under them from creating third party interest in respect of shop No.2 in Madhuri Building on Plot No.1, Sector 6, Airoli, Navi Mumbai pending the hearing and final disposal of the above numbered complaint.”
(3) The Complainant, initially, was seeking a relief only for refund of the amount paid with interest and later on other reliefs, supra, were added by an amendment on 06.03.2010. The original complaint was filed on 17th January, 2003.
(4) The complaint is opposed by the Opposite Party principally raising the plea of limitation and according to him, since the agreement stood terminated in the year 1999 itself, the complaint filed belatedly should be dismissed.
(5) Heard both sides.
(6) Referring to paragraph nos.12 and 13 of the consumer complaint, it can be seen that once the booking and agreement to purchase the shop stood terminated on the ground of default in payments, said booking agreement remain cancelled and as such there exists no relationship between the parties as a ‘consumer’ and ‘service provider’. Besides that, by the end of the year 1999, fearing that Opposite Parties were not in a position to complete the construction of shop, the Complainant (treating the agreement/booking as cancelled) demanded refund of consideration paid of `7,46,182/- along with interest and till the year 2003 there was no further action. From the undisputed facts it can be seen that cause of action, if any, to the complaint arose by the end of the year 1998 or at the most beginning of the year 1999 when the agreement stood terminated. Further, after receiving such communication (of termination), the Complainant preferred to ask for refund of consideration paid. Therefore, since the alleged agreement to purchase shop is no more in existence there cannot be any deficiency in service on the part of builder in respect of non-delivery of the possession of the shop. It may be pertinent to note that money claim for recovery of consideration paid, cannot be the subject matter of consumer dispute. Taking into consideration, supra, consumer complaint filed in the year 2003 is certainly time barred. It is a stale action on the part of the Complainant.
(7) For the reasons stated above, we hold accordingly and pass the following order:
O R D E R
(i) Consumer complaint stands dismissed.
(ii) In the given circumstances, both parties to bear their own costs.
