Haryana

StateCommission

CC/394/2019

SHIV RATAN SOLANKI AND ANOTHER - Complainant(s)

Versus

GOVERNMENT OFFICERS WELFARE ORGANIZATION - Opp.Party(s)

ARPANDEEP NARULA

07 Dec 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA Panchkula

 

                  

  Date of Instituion:23.12.2019

                Date of final hearing:21.11.2022

                                                Date of pronouncement:07.12.2022

 

Consumer Complaint No.394 of 2019

 

IN THE MATTER OF

 

1.      Shiv Ratan Solanki, aged 58 years, s/o Late Sh. Hari Chand, resident of G-601, Corona Optus, Sector-37C, Gurugram-122001.

2.      Sudha Solanki, wife of Sh. Shiv Ratan Solanki, aged 50 years, resident of G-601, Corona Optus, Sector-37C, Gurugram-122001.

                                                                                      .….Complainants

 

Through counsel Mr. Arpandeep Narula, Advocate

 

Versus

 

 

1.      Government Officers Welfare Organization (GOWO), UG 47 & 48, Ansal Chamber-II, Bhikaji Came Place, New Delhi-110066 through its Chairman.

2.      Corona Housing Pvt. Ltd., 504, DLF City Court, M.G. Road, Sikandpur, Gurgaon-12002 through its Chief Executive Officer.

 

….Opposite parties

 

Through counsel Mr. Vikram Singh, Advocate and Mr. Parveen Gupta, Advocate

 

CORAM:   S.P.Sood, Judicial Member.

                   S.C. Kaushik, Member.

 

Present:-    Mr. Arpandeep Narula, counsel for the complainant.

                   Mr. Vikram Singh, counsel for opposite party No.1.

Mr. Parveen Gupta, counsel for opposite party No.2.

 

O R D E R

 

S. P. SOOD, JUDICIAL MEMBER:

 

 

                   Facts put forth in brief goes like that present complaint has been filed under Consumer Protection Act, 1986 with the prayer that the OP be directed to pay compensation for the delay of 26 months entailed in handing over the possession of Flat No.G-601, to refund the excess amount charged for the increased super area, to refund the excess charging of the VAT, to refund excess charging of EDC, to get compensation for mental harassment and payment of the litigation expenses. After being admitted, notice of the complaint was sent to the OPs for filing of written statement.

2.                However, OPs rather than filing the written version filed an application seeking dismissal of the complaint such being barred by limitation. Copy of the application was supplied to the counsel for complainant for his response. In the reply, the complainant averred that the cause of action still continues as assured amenities are still missing, so complaint can well said to be filed within the limitation period itself. To adjudicate these applications both the learned counsels were requested to put across their views.

3.                Mr. Praveen Gupta, learned counsel for Ops argued that facts admitted in the complaint and that of the reply to this application are that possession was offered on 18.02.2017 (Annexure C-7), No Due Certificate was issued on 27.02.2018 (Annexure C-9) and conveyance deed was of the flat has been executed on 14.03.2018 (Annexure R-1 with reply of the application for dismissal of complaint). It is also not disputed that the complaint has been filed by the complainant on 12.09.2019. However, the cause of action in this case has arisen on 18.02.2017 when offer of possession of the flat in question was given to the complainant after getting the occupation certificate from Town & County Planning Department, Haryana. This is how present complaint has not been filed within two years from the offer of possession i.e. on or before 18.02.2019, but the complaint has been filed on 19.12.2019 i.e. after a delay of 304 days after expiry of two years period allowed U/s 24-A of the CP Act, 1986. It was also argued by learned counsel for the Ops that the Occupation Certificate has been obtained from competent authority on 17.02.2017 and only thereafter, possession was offered on 18.02.2017.  Once the occupation certificate is obtained from the Govt./competent authority, it is a conclusive proof that all formalities/amenities were complete in all respect and the flat could be handed over. Even in this case conveyance deed of the flat has also been executed on 14.03.2018 (Annexure R-1 with reply to the application for dismissal of complaint).

4.                Learned counsel for Ops further argued that keeping all these factual aspects complaint is highly time barred and even no application has been filed seeking condonation of delay. So, in the absence of any formal application for condonation of delay filed U/s 24-A(2) of the Act, the delay of 304 days cannot be condoned. It was also stressed that as per Section 9 of the Limitation Act, once the limitation begins to run, no subsequent event, disability or inability can stop it. Similarly, no correspondence or meetings could extend the limitation period which has already commenced from the date of accrual of the cause of action. In support of his contention, he relied upon:-

1.      NCDRC in FA/865/2019, GMADA Vs. Johanpreet Singh & others, decided on 29.04.2022. In this case, there was delay of 56 days in filing of the appeal. It has been observed as under:-

“Para-4. In the case of Ram Lal and Ors. Vs. Rewa Coalfields Limited, AIR  1962 Supreme Court 361, the Hon’ble Supreme Court has clearly held that the courts/commissions retain the discretion for condoning the delay as condonation of delay is not a matter of right and where sufficient reasons are not shown, the Court has no other discretion but to dismiss the application. The Hon’ble Supreme Court has further held that even where the sufficient causes are shown but if the applicant had not acted bonafidely, still the court can refuse to condone the delay. The Hon’ble Court held as under:-

“12. It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court ahs to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”            

Para-5. In the case of “R.B. Ramlingam Vs. R.B. Bhavaneshwari, I (2009) CLT 188 (SC), the Hon’ble Supreme Court has clearly held that the matter relating to condonation of delay has to be considered on the facts and circumstances of each and every case and the court is required to see that the delay stands properly explained. The Hon’ble Supreme Court has also held that whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition has also to be seen. Hon’ble Supreme Court has held as under:-

“7.We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

Para-6, Hon’ble Supreme Court in the case of “Anshul Aggarwal Vs. New Okhla Industrial Development Authority, (2011) 14 SCC 578,” has clearly held that since the Consumer Protection Act is a special act which periods a special period of limitation, which fact has to be kept in mind while dealing with applications seeking condonation of delay. The Hon’ble Supreme Court has held as under”-

“5.It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this court was entertain highly belated petitions filed against the orders of consumer Fora.”

Para-9. We do not find any reasons to condone the delay. Application is dismissed. Consequently, the appeal is also dismissed being barred by limitation.

Further, NCDRC in FA/265/2020, Manya Infra-Buildwell Pvt. Ltd. Vs. Muzammil Lahmad, decided on 20.02.2020. In this case, there was delay of 355 days in filing of the appeal. It has been decided as under:-

          Para-5. From the above facts, it is clear that appellant had not acted with reasonable diligence. They had a period of about 1 months after handing over the file to advocate. They have failed to show the reasonable  ground which prevented them from coming to the Court for filing the present appeal within the period of limitation. Delay of 355 days is a huge delay. Valuable right has accrued to the respondent/complainant.

          Para-6. For the aforegoing reasons, I found no ground to condone the delay. Application is dismissed.

          FIRST APPEAL

          Consequently, thereupon, since the application for condonation of delay has been dismissed, the First Appeal is also dismissed as barred by limitation.

Likewise, NCDRC in FA/417/2022, Preet Land Promoters & Developers Pvt. Ltd. Vs. Rekha, decided on 22.06.2022. In this case, there was delay of 881 days in filing the appeal. It has been decided as under:-

          Para-17. From the above discussion, it is apparent that Appellant has failed to give any reason what to say any sufficient reason or grounds for condoning the delay. The application does not contain any contention regarding delay. We are satisfied that Appellant has failed to explain the reasons for delay. Application has no merit and same is dismissed.

          Para-18. Since, First appeal is barred by limitation and application seeking condonation of delay is dismissed an delay is not condoned, the present Appeal is also dismissed.

5.                Continuing further, learned counsel for OPs also sought reliance upon what was observed by Hon’ble State Consumer Commission Punjab and that of Union Territory of Chandigarh, which have a persuasive value for this Commission.

          State Consumer Disputes Commission, Punjab, Chandigarh in CC/282/207, Gurcharan Singh Virdi & Other Vs. ATS Infrastructure Ltd., decided on 13.03.2018 has observed as under:-

          7. XXXXXXX In the instant case, the construction was completed by Ops in the year, 2012 and physical possession of the flat was delivered to complainants in the year, 2012 and conveyance deed was executed by Ops in favour of the complainants in the year, 2012 and complaint has been filed by the complainants in the year, 2016 and obviously it is barred by time. The submission of complainant that it was admitted for hearing is no sustainable ground on this point. It has to be ascertained only after hearing the parties and evidence on this point, as to whether complaint is within time or not. We thus, hold that the cause of action commenced in this case in the year, 2012, as referred to above and it is not a case of continuous cause of action and hence complaint is ex facie barred by limitation and is hit by Section 24-A of Consumer Protection Act, 1986.

          8.  Once, we have come to this conclusion that complaint is barred by time, hence we do not find any necessity to touch other aspect of the matter, because the complaint is obviously time barred and merits dismissal on that score. It is the primary duty of the Forum to consider this point, as to whether complaint is within time or not. It is immaterial whether the defendant/OP raises any such defence of time barred complaint because it is enjoined upon the Court to decide this point under Section 3 of Limitation Act, 1963, as to whether the complaint is within time or not.

          9. For the reasons recorded above, we hold that complaint is barred by time hence same is dismissed as time barred.

6.                State Consumer Commission, Punjab, Chandigarh in CC/284/2019, Mrs. Neeru Jasmit Juneja & another Vs. M/s M.D. Builder & Developers, decided on 1.04.2019 has observed as under:-

          8. XXXXXXX. In other words, it is the duty of the consumer Forum to take notice of Section 24-A 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.

          9. This view of law was further reiterated by the Hon’ble Supreme Court in its judgment reported as “V.N. Shrikhande (Dr.) V. Anita Sena Fernandes” 2011 CTJ 1(Supreme Court) CP. It was held by the Hon’ble Supreme Court as under:-

“Section 24A(1) contains a negative legislative mandate against admission of a complaint which has been filed after two years from the date of accrual of cause of action. In other words, the consumer forums do not have the jurisdiction to entertain a complaint if the same is not filed within two years from the date of which the cause of action has arisen. This power is required to be exercised after giving opportunity of hearing to the complainant, who can seek condonation of delay under Section 24A(2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under Section 24A(1). If the complaint is per se barred by time and the complainant does not seek condonation of delay under Section 24A(2), the consumer forums will have no option but to dismiss the same.”

12. In view of the ratio of law laid down in the above noted authorities, it is clear that no correspondence could extend the limitation period, which had already commenced from the date of accrual of cause of action in the present case on 04.03.2016. The complainants did not approach the Consumer Forum within two years therefrom. Therefore, the present complaint, being filed with huge delay of 401 days, is hopelessly barred by limitation.

13. XXXXXXX. There is no justifiable explanation rendered by the complainants for the huge delay, which occurred in filing the present complaint. As already observed above, once the time/limitation has begun to run, no subsequent disability or inability to institute a suit or make an application stops it.

14. In view of our above discussion, there is no merit in the application for condonation of delay and the same is hereby dismissed.

Main Complaint

15. Since the application for condonation of delay has been dismissed, so the complaint filed by the complainants is dismissed, being barred by limitation.

 

7.                On the other hand, Mr. Arpandeep Narula, learned counsel for the complainants argued that the complaint has been filed within the period of limitation as the cause of action is continuous. In case the basic amenities are not provided by the Builder/OP, the cause of action continues. He has relied upon the following judgments in support of his claim:-

1.      Wg. Cdr. Arifur Rehman Khan and Aleya Sultana Vs. DLF Southern Homes Pvt. Ltd. (2020) 16 SCC 512.

          Brief facts of the case are that a group of 339 allottees filed complaint before NCDRC regarding delay in possession, reimbursement of taxes, deficiency in providing of amenities, levy of excess electricity charges and failure to construct Club Houses etc. The said complaint was dismissed by NCDRC on 02.07.2019 on the ground that the flat purchasers are not entitled to get compensation in excess of what was stipulated in the Apartment Buyers Agreement (ABA). The Apex Court finally in CA/6239/2019 and 6303/2019 allowed the allottees compensation @ 6% p.a. on the amount paid by them for the delayed period and this would be in addition to the compensation @ Rs.5/- per sq. ft. as allowed to them under the agreement.

          The facts of this case are not applicable in the instant case because there was no plea of amenities being not provided in the complaint. Further, in the said case, the possession of the flat was offered even before getting the occupation certificate and completion of amenities, unlike of the facts of this complaint.

2.      NCDRC in RP/3723/2013, titled M/a Vyas Enterprises Vs. Das Darshan Cooperative Housing Society Ltd., decided on 01.05.2014. The facts of the case are that a dispute of the allottees of the flats was regarding some missing amenities and non registration of the conveyance deeds by the builder as the builder was not having the ownership of the land. The builder was only having a irrecoverable POS for the land that too for a period of 10 years. The DCDRC decided the complaint in favour of the allottees and directed the builder to get the conveyance deeds registered. The builder went in for appeal before the SCDRC and the appeal was dismissed. Thereafter the builder filed RP before NCDRC and that was also dismissed. The plea of the appellant/builder that the complaint is time bared was not accepted by SCDRC.

                   The facts of this case are again not applicable because in the instant case, the builder has made offer of possession after getting the Occupation Certificate from the competent authority. The complainant has taken possession of the flat after getting the NOC from the builder and has started residing in it. Most of the allottees have already got the conveyance deed registered in their names and there is no dispute regarding the ownership of the land.

8.                After hearing learned counsels of both the parties and after going through the pleadings, judgments filed by the counsels etc., we are of the considered view that the time barred complaint need to be dismissed especially when the complaint is not even accompanied with an application for seeking condonation of delay. The cause of action is to be reckoned from the date of offer of possession and once the limitation has begun to run, it cannot be stopped or extended by any subsequent disabilities, meetings, letters & correspondence etc. The offer of possession was made after getting Occupation Certificates from Town & Country Planning Department, Haryana and once the occupation certificate is received from the competent authority, the non completion of amenities is not to be disputed. Moreover, compensation for any of the missing amenities is not there in the prayer clause. This shows that the complaint has not been filed for the missing amenities but for other reliefs. There is no dispute about the ownership of the land with the respondent and most of the allottees have already got the conveyance deeds registered in their names and those who have not got the conveyance registered so far are being reminded again and again to get the conveyance deeds registered at the earliest possible.

9.                Hence, the complaint filed after 236 days of limitation and accordingly, this application is hereby allowed and main complaint is dismissed, leaving both the parties to bear their own costs.

10.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for the perusal of the parties.

11.              Application(s), pending, if any, stands disposed off in terms of the aforesaid order.

12.              File be consigned to record room alongwith a copy of this order.

 

Pronounced on 07^th December, 2022

 

                                                                                                            S.P.Sood

                                                                                                            Judicial Member                                                                                                                 Addl. Bench            

 

 

 

S.C Kaushik,

Member        

Addl. Bench

 

 

R.K