Per Mr.B.S.Wasekar, Hon’ble President
1) The complainant has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986. According to the complainant, the O.P.No.1 is private limited company engaged in development and sale of real estate property. The complainant booked a plot measuring 7000 Sq.Ft. in the Mahal Mira Hills project of the opponents at Pen, District-Raigad on 22nd January, 1991. He paid the full amount of Rs.56,000/- for the allotment of the plot as per Receipt No.1676 dated 22nd January, 1991. The complainant repeatedly requested the opponents to execute the agreement in his favour but the O.P. did not pay any heed to his request and did not execute written agreement. Since 1991, the complainant was persuading the opponents to give him information about the project and allotment of plot to him but the opponents has not given any information to him in respect of location of the plot, survey number, project clearance details, conveyance details, project office address etc. The complainant wrote letter dated 17th August, 2007 requesting the O.P. to furnish status of the project and plot. The complainant issued reminders on 21st September, 2007 and 7th January, 2008. The complainant also issued legal notice dated 18th March, 2008 through advocate and 21st January, 2009. The opponents were requested to transfer the plot in his name or to refund the amount with interest and to pay compensation of Rs.5 Lakhs. As the opponents failed, the complainant has filed this complaint to direct the opponents to furnish information about the status of the project and to transfer the plot in the name of the complainant. Alternatively, the complainant has prayed for refund of amount of Rs.56,000/- with interest Rs.1,82,848/- and compensation of Rs.5 Lakhs.
2) The O.P.No.1 appeared and filed written statement. It is submitted that in the year-1991, the O.P. Priyesh Desai was minor. As per complaint, the complainant was not aware about the location of plot. The complaint has been filed without specifying the location of plot and on imagination. It is denied that the complainant paid Rs.56,000/- towards full payment and the receipt dated 22nd January, 1991 was issued. In the complaint, the complainant has demanded conveyance of imaginary plot. Therefore, the complaint is not maintainable. The complaint is also barred by limitation as there is delay of 17 years and there is no prayer for the condonation of delay. Therefore, the complaint is liable to be dismissed.
3) Earlier, the complaint was decided and our predecessors delivered the judgment on 6th October, 2010 and allowed the complaint. In the appeal, bearing First Appeal No.A/10/1313, the Hon’ble State Commission set aside the order of this Forum and the matter was remanded back to decide the complaint on merit according to law in the light of the observation of the Hon’ble State Commission. In the judgment, it is observed by the Hon’ble State Commission that developer company is not the party to the proceeding. After this judgment, the complainant amended the complaint and added developer company as O.P.No.2. The O.P.No.2 remained absent thought duly served therefore the O.P.No.2 was proceeded ex-parte vide order dated 1st June, 2012. Thereafter, the parties submitted their evidence. Arguments of both the parties were heard. After going through the record, following points arise for our consideration.
POINTS
Sr. No. | Points | Findings |
1) | Whether the complaint is barred by limitation ? | Yes |
2) | Whether there is deficiency in service ? | No |
3) | Whether the complainant is entitled for conveyance of the plot ? | No |
4) | Whether the complainant is entitled for the relief as claimed ? | No |
5) | What Order? | As per final order |
REASONS
4) As to Point No.1 :- As per the complaint, the complainant booked the plot on 22nd January, 1991 and paid the amount on the same day. The complainant has produced copy of the receipt dated 22nd January, 1991. Admittedly, no agreement was executed in favour of the complainant. The complainant himself has stated that flat was booked on 22nd January, 1991. In spite of his several requests, the opponents have not furnished the details and have not executed the agreement in his favour. Thus, the limitation starts from 22nd January, 1991. The complaint is filed on 6th April, 2009 i.e. after 18 years. As per the provision u/s 24(A) of the Consumer Protection Act, the complaint should be filed within two years from the date of cause of action. The complainant is filed after 18 years. The complainant has not filed any application for condonation of delay. It is submitted by the learned advocate for the complainant that notice was issued in the year 2007 and thereafter in the year-2008 and 2009. Therefore, the complaint is within limitation. It is settled law that merely issuing notices will not extent the period of limitation. Thus, the complaint is apparently is barred by the limitation.
5) As to Point No. 2 & 4 :- The complainant has filed this complaint for execution of conveyance in his favour. In prayer (a) of the complaint, the complainant has prayed for direction to the opponent to furnish requisite information/details about the status of project. In para 4 of the complaint, the complainant has submitted that the opponents has not furnished information about the location of the plot, survey number, N.A. clearance details, conveyance details, project office address etc. From this pleading, it is clear that there was no agreement about the specific plot to be allotted to the complainant. Admittedly, no agreement was executed in favour of the complainant. The complaint is based on the receipt issued by the opponent dated 22nd January, 1991. On perusal of it, it appears that amount of Rs.56,000/- was paid towards full payment for the plot to be allotted. The details of the plot and plot No. is not given. From this receipt, location and number of the plot can not be ascertained. Unless, the location and number of the plot is ascertained, no conveyance or agreement can be executed. Therefore, the complainant is not entitled for the relief of conveyance.
6) The complainant has claimed refund of amount of Rs.56,000/- with interest. But as discussed above, the claim is apparently barred by limitation. Therefore, the complainant is not entitled for the refund of the amount. The complainant has also claimed compensation of Rs.5 Lakhs towards mental agony. The so called cause of action took place in the year-1991. The complainant kept mum for 18 years. Therefore, he is not entitled for the compensation as claimed.
7) In the earlier judgment, our predecessors have not considered the point of limitation. The said judgment is already set aside in appeal by the Hon’ble State Commission. Therefore, the findings in that judgment are not binding on us.
8) Thus, the complaint is barred by limitation. In the absence of location and plot number, the complainant is not entitled for the conveyance. As the claim is barred by limitation, the complainant is not entitled for refund of the amount and compensation. Therefore, the complaint deserves to be dismissed. Hence, the following order.
ORDER
1) The Complaint stands dismissed.
2) Parties are left to bear their own costs.
3) Inform the parties accordingly.
Pronounced
Dated 20th December, 2013
