CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)
ISBT KASHMERE GATE DELHI
No. DF/ Central/ Date
CC/71/2017
Smt. Neeta Kaura
House No. 197, Sector-19A,
Chandigarh-160019. …..COMPLAINANT
VERSUS
M/s. Hindustan Buildcon (P) Ltd.
Through its Director/A.R.
Regd. Office at:
2E/4, Jhandewalan Extension,
New Delhi-110055. …..OPPOSITE PARTY
CC/72/2017
Sh. Raman Kaura
House No. 197, Sector-19A,
Chandigarh-160019. …..COMPLAINANT
VERSUS
M/s. Hindustan Buildcon (P) Ltd.
Through its Director/A.R.
Regd. Office at:
2E/4, Jhandewalan Extension,
New Delhi-110055. …..OPPOSITE PARTY
CC/73/2017
Sh. Gaurav Kaura
House No. 197, Sector-19A,
Chandigarh-160019. …..COMPLAINANT
VERSUS
M/s. Hindustan Buildcon (P) Ltd.
Through its Director/A.R.
Regd. Office at:
2E/4, Jhandewalan Extension,
New Delhi-110055. …..OPPOSITE PARTY
Quorum : Ms. Rekha Rani, President
Mr. R.S. Nagar, Member
Ms. Manju Bala Sharma, Member
ORDER
Ms. Rekha Rani, President
- The aforesaid complainants are taken up together for adjudication as parties are relatives and facts pleaded are the same. Instant complaints were filed by Smt. Neeta Kaura, Sh. Raman Kaura and Sh. Gaurav Kaura (in short complainant no. 1, complainant no. 2 and complainant no. 3 respectively) under Section 12 of the Consumer Protection Act, 1986 as amended up to date pleading therein that they booked one, two and one flat in CC/71/2017, CC/72/2017 and CC/73/2017 respectively with M/s. Hindustan Buildcon (P) Ltd. (in short OP). At the time of booking, the complainants were assured that the plots will be developed and allotted shortly. The official website of OP is not showing any progress regarding allotment of plots and therefore the complainants requested OP for refund of the booking amount but they were shocked to learn about the cancellation of the bookings and there was no word regarding refund of the booking amount. Hence, instant complaints were filed by the complainants seeking direction to OP to pay a sum of Rs. 75,000/-, Rs.2,00,000/- and Rs. 75,000/- in CC/71/2017, CC/72/2017 and CC/73/2017 respectively along with interest @ 18% per annum from the date of payment of the booking amount till the date of payment, Rs. 50,000/- as compensation for causing mental agony and Rs. 15,000/- towards litigation expenses.
- On receipt of notice, OP appeared and contested the claim of complainants vide its written statement. It is inter-alia pleaded that complainants do not fall under the category of consumers. It is also submitted that the present complaints are barred by limitation because the last communication between the parties was on 21.09.2013 and instant complaints were filed on 07.03.2017 after delay of more than 3 years and 6 months and the time gap between the date of bookings and the date filing of the complaints is 9 years.
- We have heard Sh. Sayeed Anis Nizami, counsel for complainants. Parties have filed evidence by way affidavits.
- Complainants filed an application under Section 24A of the Consumer Protection Act seeking Condonation of Delay in filing the accompanying complaint. It is pleaded therein that complainants handed over the case files to their earlier Advocate somewhere in February 2014 for preparation of the complaint against the OP. The Advocate prepared the complaint and got the same singed by the complainant and the affidavit duly attested on 11.04.2014. It is further stated that the complainants from time to time inquired from their earlier advocate about the updates of the proceedings before the Consumer Forum. Complainants were informed by the said advocate that the case was being listed for some purpose or the other. Since the complainants were residents of Chandigarh, they were not able to attend regular hearings of the matter and thus they totally relied upon their advocate. In December 2016, the complainants visited the office of the said advocate and requested him for certified copies of the daily orders passed by the Forum in their respective cases. It was only then that the complainants were informed that complaint had not been filed.
- Complainants have placed on record letters of the OP dated 10.08.2008 vide which complainants were reminded to pay the first quarterly installment equal to the booking amount to avoid levying of interest on account of delay. Letters of OP dated 10.07.2008, 11.09.2008, 10.11.2008, 12.01.2009 and 11.06.2010 have been placed on record vide which complainants were reminded to pay the installments in time to avoid levy of interest and penalty. Complainants have also placed on record copies of letter of OP dated 21.07.2010 vide which complainants were informed that despite reminders of OP dated 10.07.2008, 11.09.2008, 10.11.2008, 12.01.2009 and 11.06.2010 they have failed to deposit the installments till date and therefore as per terms and conditions, the booking was cancelled due to non-payment of installments. Complainants sent a letter to OP dated 12.06.2013 asking for copies of certain documents. Complainants also sent a legal notice to OP dated 21.09.2013 to refund the booking amount along with interest @ 18% per annum from the date of payment till its realization.
- Vide their letter to OP dated 12.06.2013, complainants submitted that:
“While cancelling the said residential plots, you have till date never informed me. You are referring to some letters of various dates that is dated (Jun 2010) and final reminder of cancellation dated (21 July 2010) have never been received by me, as I had already shifted at my new address on 1 July 2009 duly informed telephonically. Kindly show me any document, that I have received the above two said reminders?”
- It is submitted on behalf of the complainants that since w.e.f. 01.07.2009 they had shifted to a new address and OP was duly informed about the same telephonically, they did not receive the letters of OP regarding non-payment of installments. There is no written communication of the complainants to OP that they had shifted to a new address w.e.f. 01.07.2009. In their letter dated 12.06.2013 it is stated that OP was informed telephonically. There is no proof of the same and the said submission about non-receipt of letters of OP is belied by the complainants own documents. Para 7 of their legal notice dated 21.09.2013 reads:
“through your latest communication dated 29.06.2013 you have again reiterated the cancellation of booking amount without saying anything regarding the refund of the booking amount. This amounts to unfair trade practice.”
Complainants have used the words ‘latest’, ‘again reiterated’ which means that they had received earlier letters which were sent to them by OP wherein OP had mentioned about payment of installments and cancellation of the booking. In the legal notice complainants have not mentioned that they did not receive the earlier letters/reminders of the OP asking for payment of their installments/dues.
In their letter dated 12.06.2013 their new address is mentioned. On receipt of the said order OP subsequently wrote to them on their new address only. So it follows that OP communicated with the complainants at their new address after it was informed about the same.
- Punjab State Commission in Pradeep Kumar Son of Shri Haridwar vs. Life Insurance Corporation First Appeal No. 1289 of 2009 dated 10.05.2013 had held that it is a settled law that the limitation for filing of the complaint starts form the date of knowledge of the repudiation of the claim to the person, who submit the claim as held by the Hon’ble State Consumer Disputes Redressal Commission, Panchkula in case “HUDA through it Administrator and Anr. Versus Raj Pal Singh”, 2010 (1) CLT 567.
Complainants admittedly came to know about the cancellation of their booking vide OP’s communication dated 29.06.2013 which was sent to them at their new address. The instant cases were filed on 07.03.2017.
- In their application under Section 24A it is pleaded that complainants are permanent residents of Chandigarh and therefore they could not come to Delhi for hearings of their complaint cases. Complainants collectively have booked four plots in Mumbai. They have not mentioned the purpose for which the said plots were booked. If they could afford to manage their plots in Mumbai, they could have come to Delhi for the purpose of watching proceedings in their respective complaint cases before the Consumer Forum.
It is pleaded in the application 24A of the Act that they had given instructions to file the complaint case to the earlier advocate in February 2014 and they kept on enquiring about the progress in the complaint cases and the advocate kept on telling them that the case was listed on different dates for different purposes. The same is not believable. An advocate cannot fool his clients for more than two years that he had filed a case and the same is listed on different dates for different purposes whereas the fact is that he did not even file the same. The complainants did not even file a complaint against the said advocate to the Bar Council or any other appropriate authority. It is easy to shift the blame on an advocate for one’s own dereliction. Daily orders of the Consumer Forum are uploaded on the website and Chandigarh is not very far from Delhi although Mumbai is, where they have booked their plots.
10. In Moddus Media Pvt. Ltd. vs M/S. Scone Exhibition Pvt. Ltd., RFA 497/2017seeking condonation of delay in filing the appeal under Section 5 of the Limitation Act, 1963 read with section 151 of the Code of Civil Procedure, the appellant had pleaded before Delhi High Court that their lawyer stopped appearing after 10.11.2014. It was also alleged that after the impugned judgment and decree dated 31.08.2015, their lawyer told them that the suit of the respondent/plaintiff company had been dismissed and they requested to supply them copies of order and decree.
Hon’ble Delhi High Court vide its order dated 18.05.2017 held that:
“The litigant owes a duty to be vigilant of his rights and is also expected to be equally vigilant about the judicial proceedings pending in the court of law against him or initiated at his instance. The litigant cannot be permitted to cast the entire blame on the Advocate. It appears that the blame is being attributed on the Advocate with a view to get the delay condoned and avoid the decree. After filing the civil suit or written statement, the litigant cannot go off to sleep and wake up from a deep slumber after passing a long time as if the court is storage of the suits filed by such negligent litigants. Putting the entire blame upon the advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory put forth by the appellant/applicant/defendant company, which cannot be accepted and ought not to have been accepted.”
In Para 12 of its judgment, Delhi High Court referred to its another judgment in Man Singh (deceased) through L.Rs. Vs. Gaon Sabha Jindpur and others, 2012 (4) ILR (Del) 50, wherein it was contented that appellants were under the bonafide impression that the matter was being properly looked after by the counsel. It was held that the litigant has to be vigilant and he should contact and take part in the proceedings with due diligence and if negligence on the part of the litigant was established in a particular case, then the courts are not to come to the rescue of such applicants.
11. Apex Court in Hameed Joharan Vs. Abdul Salam, (2001) 7 SCC 573 2001 Indlaw SC 21137 made the following observations:-
“Law courts never tolerate an indolent litigant since delay defeats equity - the Latin maxim vigilantibus et non dormientibus jura subveniunt (the law assists those who are indolent). As a matter of fact, lapse of time is a species for forfeiture of rights......"
12. In Office Of The Chief Post Master General & Ors Vs Living Media India Ltd. & Anr., II (2012) SLT 312 it was held by the Apex Court that unless there is
13. In Cicily Kallarackal Vs Vehicle Factory , IV (2012) CPJ 1 (SC)=VIII (2012) SLT 585, Hon’ble Supreme Court observed that while dealing with the application for condonation of delay special courts/ tribunals must keep in mind the special period of limitation prescribed under the statue(s) and further that condoning inordinate delay without any sufficient cause would amount to substituting the period of limitation in place of the period prescribed by the Legislature when the statures so prescribes.
14. In C.H. Vittal Ready Vs. The Manager, District vide order dated 04.12.2002 the Hon’ble NCDRC observed as under:
“Condonation of delay when it is the complaint has to be taken very seriously and that is why proviso to sub section (2) of Section 24A mandates recording of reasons. It must be understood that a suit filed in a Civil Court after the period of limitation prescribed under the Limitation Act has to be dismissed and there is no provision for condoning the delay on the ground of any sufficient cause being shown for not filing the suit within the period of limitation. This is the law which is in force since 1908 when the Limitation Act, 1908 came into force and same is the position of the Limitation Act, 1963. Sub section (2) of Section 24Ais a departure to the well settled law that a suit beyond the period of limitation prescribed under the Limitation Act has to be dismissed. A Consumer Forum has, therefore, to guard itself against the misuse of sub-section (2) of Section 24A and should not be quick to condone the delay unless cogent and verifiable reasons exist to condone the delay.”
15. In Baswaraj Vs. Spl.Land Acquisition Officer 2013 (14) SCC 81 the Hon’ble Supreme court held that it is settled legal proposal that law of limitation may harshly affect a particular party so it has to be applied with all its rigor when the statute so prescribes.
16. In Sanjay Sidgonda Patil Vs National Insurance Co. Ltd & Ors, the Apex Court while dismissing the Special Leave to Appeal (Civil) No. 37183 of 2013 decided on 17.12.2013, upheld the order of the National Commission wherein delay of 13 days was not condoned.
17. Accordingly in view of the aforesaid, the complaints are dismissed as barred by limitation. Copy of this order be sent to the parties as statutorily required. File be consigned to record room.
Announced on _____ Day of _____ 2019.
