MS. NIPUR CHANDNA, MEMBER
ORDER
05.07.2024
1. A complaint under Section 35 of Consumer Protection Act filed thereby requesting to issue direction to OP to handover the possession of booked unit along with the prayer for refund of the booking amount as well as for closure of the home loan account besides other reliefs. In brief the facts of the complaint are that being influenced with the lucrative offer of OP1 complainant booked one residential unit in the month of July, 2014 with OP1 in a Group Housing Residential Complex known as “ Himalaya Tanishq”.
2. OP1 allotted to the complainant a unit in block tower B apartment no. C-11 on 11th floor at a total cost of Rs. 44,32,870/-. The OP1 also offered the complainant housing loan from OP2 for the said purchase. On the assurance of OP1 complainant purchased the aforesaid unit and entered into the tripartite agreement on 30.07.2014. The complainant paid a sum of Rs. 7,15,000/- as booking amount to OP1. The complainant continued to pay regularly monthly EMIs as per the agreement dated 30.07.2014 to OP2. It is alleged by the complainant that on 03.07.2020 he received the letter from OP1 in respect to the cancellation of booking without mentioning any detail or explanation, if any. The complainant approached OP1 for seeking the reason of cancellation and status of his allotment and loan account but no satisfactory reply was given by the official of OP1. After continuous persuasion, OP1 assured to the complainant in respect to the closure of the loan account as well as for refund of Rs. 7,15,000/- deposited with it on account of allotment.
3. OP2 vide legal notice dated 15.03.2023 asked the complainant to pay a sum of Rs. 2,45,699/- toward outstanding EMI against the loan account no. 612632229. The complainant tried to approach both the OPs but all in vain. Thereafter, the complainant requested OPs for closure of the loan account vide email dated 22.09.2023, 02.10.2023, 16.10.2023, 07.01.2024, 21.02.2024 and 28.02.2024 but the officials of OPs refused to entertain and the redressed the grievance of the complainant. Being aggrieved by the conduct of the OPs and deficiency in service on their part, complainant approached this Commission for redressal of his grievance.
4. The present complaint case is on admission stage. We have heard counsel for complainant Ms. Mrinmoi Chatterjee on admission as well as limitation and have perused the record.
5. It is submitted on behalf of complainant that in the month of July, 2014 complainant booked the unit with OP1 by paying a sum of Rs. 7,15,000/- as booking amount. Thereafter, the complainant entered into the tripartite agreement with OP1 & 2 as per which OP2 financed the housing loan to the complainant and complainant is regularly paying EMI to OP1. Vide letter dated 03.07.2020 OP1 cancelled the booking of the unit and the complainant requested on various occasion to OP to refund the booking amount as well as closed the loan account. It is argued by Ld. Counsel for complainant that vide legal notice dated 15.03.2023 OP2 asked the complainant to pay the outstanding of Rs. 2,45,699/- toward outstanding EMI against the loan account no. 6126322295, hence, the cause of action is continuing one and the present complaint case is well within limitation.
6. 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.
7. 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.
8. Admittedly, the complainant booked the unit with OP1 in the month of July, 2014. Vide letter dated 03.07.2020 the OP1 cancelled the booking of the complainant on the ground of non-payment of outstanding dues. The complainant averred in his complaint that after receipt of the letter dated 03.07.2020 he approached OP1 to know the status of the allotment as well as for the closure of the loan account. Despite bare version no documentary evidence has been placed on record by the complainant to substantiate the aforesaid averments rather after receiving the legal notice dated 15.03.2023 complainant for the first time sent an email dated 22.09.2023 to OPs thereby asking for the reason of cancellation of the Unit.
9. In view of the aforesaid peculiar facts and circumstances, we are of the considered opinion that the substantive cause of action for filing the present complaint arose on 03.07.2020 when OP1 cancelled the booking of the unit in question. The complainant ought to have approached this Commission after cancellation of unit within two years of the accrualof cause of actioni.e. 03.07.2022, the complainant failed to do so. Complainant approached this Commission on 31.05.2024 i.e. after the delay of one year and ten months of the accrual of cause of action. The present complaint is therefore, barred by limitation, hence, dismissed.
File be consigned to record room.
10. 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 05.07.2024.
Sanjay Kumar Nipur Chandna Rajesh
President Member Member
