Delhi

StateCommission

CC/151/2017

AMAN ANAND BAJAJ & ANR. - Complainant(s)

Versus

M/S ANSAL PROPERTIES & INFRASTRUCTURE LTD. & ANR. - Opp.Party(s)

MAIBAM N SINGH

05 Mar 2020

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :05.03.2020

Date of Decision :04.05.2020

Decision delayed on account of lockdown due to Corona

COMPLAINT NO.151/2017

In the matter of:

1. Aman Anand Bajaj
2. Bhanu Dev Bajaj
3. Tarun Bajaj

All sons of Late Mr. Harish Chander Bajaj,

R/o. C-123, KIrti Nagar,

New delhi-110015.………Complainants

 

Versus

 

1. M/s. Ansal Properties & Infrastructure Ltd.,

Office at 115, Ansal Bhawan,

16 Kasturba Gandhi Marg,

New Delhi.

 

2. M/s. Star Facilities Management ltd.,

Office at 115, Ansal Bhawan,

16 Kasturba Gandhi Marg,

New Delhi.…..Opposite Parties

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

1. The case of all the three complainants is that they are sons and legal heirs of Shri Harish Chandra Bajaj who was original owner of plot no.C-2044, Type-3 measuring 250 sq. meter in Sushant Lok, Gurgaon. OP-2 has been entrusted for maintenance of the plots of the said complex.An agreement was executed by Shri H.C. Bajaj as karta of M/s. H.C. Bajaj and his son (HUF) with OP-1 vide which OP-1 agreed to sell the aforesaid plot at the rate of Rs.1076/- per sq. meter approximately. Schedule of payment and EDC was annexed with the agreement dated 27.09.89. The father of the complainants died on  31.01.91. OP-1 issued letter dated 22.09.95 stating that possession could be handed over to the buyer and conveyance of title through registered sale deed can also be done. OP-1 showed total dues payable as Rs.6,000/- for registration fee and misc. expenses, Rs.38,500/- for stamp duty charges and Rs.3,000/- as contingency advance against EDC payable to OP-2. The payment were to be made by 27.10.95.
2. At the time of death of their father on 31.01.91, complainants were minor and their mother was simple house wife who could not pursue steps to transfer the questioned property in the name of complainants. Moreover the complainants were having financial constrains. They could approach the OP to transfer the plot in their name in 2013.  On 06.04.10 their mother also died. Office of Executive Magistrate West District, Delhi issued a surviving member certificate dated 01.10.10 in the name of complainants. The complainants lodged FIR no.1075/12 at P.S. Nangloi stating that the documents of plot have been mis- placed. The complainants got published the said news in the news paper copies of which are annexure-C/6. The plot has been endorsed in the joint names of complainants w.e.f. 07.05.13 as per record of OP-1. Fresh statement of dues dated 24.08.13 was sent. In September, 2016 they approached OP for registration of the plot. OP-2 provided current status of dues vide email dated 20.09.16. Complainants were given option of getting 50% discount of interest, if they paid dues at one go. However OP-2 failed to explain as to how Rs.3,000/- of maintenance charges have become Rs.4,77,937/-.
3. To the utter shock and surprise of complainant, on 25.10.16 OP-1 sent demand letter raising huge amount of Rs.64,33,548/- as holding charges which was not mentioned in the statement of dues dated 24.06.13. OP-1 till date had not been able to explain under which clause, it had the power to demand holding charges. Act of OP-1 amounts to unfair trade practice and deficiency in service. OP-1 is trying to take away the rights from the complainants by enriching themselves and to gain wrongfully. Hence this complaint for declaring that demand raised by OP-1 under the head holding  charges is illegal and arbitrary, declaration of demand raised by OP-2 under the head of maintenance charges is illegal and arbitrary, direct OP to pay Rs.10 lakhs on account of mental agony and harassment, pay Rs.2 lakhs towards cost of the present proceedings, pay interest prior to filing of complaint, pendentelite and future interest @18% p.a.
4. OP was served for 05.03.18. It put in appearance through its counsel Shri Siddharth Kashyap. It failed to file WS within 30 days after receipt of copy of complaint. Its right to file WS was closed vide order dated 17.11.18.
5. In their exparte evidence the complainants have filed affidavits of all the three complainants in their evidence.
6. Complainant have filed written arguments.
7. I have gone through the material on record and heard the arguments. Copy of the agreement is at pages-21 to 31. Clause 5 at page-25 provides that it was incumbent on the buyer to comply with the terms of payment and other terms and conditions of agreement to sell failing which entire amount of earnest money deposited by him was liable to be forfeited and agreement was to stand cancelled and the buyer was to be left with no right in the plot. Clause 1 (d) provided that 20% of the sale price was to constitute as earnest money. Clause 5 itself provided for refund of the balance amount, if any, without any interest. Clause 10 of the agreement provided that  buyer was bound to start to construction of the house with due sanction of the competent authority within a period of three years from the date of intimation to take possession failing which the OP was entitled to resume the plot without any compensation and to allot the same to somebody else.
8. The complainants failed to start the construction within  a period of three years from the date of intimation to take possession. Hence the plots stands resumed by the OP.
9. It is interesting to mention here that the booking was done not by Shri H.C. Bajaj in his individual capacity but it was done by H.C. Bajaj & sons (HUF). It is settled law that HUF does not come to an end by the death of its karta. The eldest male member of the HUF would become karta. HUF is different entity from its karta. The complaint filed by sons of H.C. Bajaj is not maintainable.
10. The cause of action to seek mutation arose on death of Sh. Harish Chand Bajaj Karta which took place on 31.01.1991. It can be said that it arose on 22.09.1995 when OP-1 issued letter stating that possession could be handed over subject to certain conditions mentioned therein.  In any event latest it arose in 2013 when complainants approached OP to transfer the plot in their name.  Even from said date, limitation of two years to file complaint as prescribed under Section 24 Consumer Protection Act expired in 2015.  The complaint filed in 2017 is barred by limitation.  It is true that OPs have not taken said objection as their right to file WS stands closed due to non filing of the same within statutory period.  But the objection is purely legal and goes to the root of the case. It is duty of court to suo moto see the same as per decision of Hon’ble Supreme Court in SBI Vs. B.S. Agricultural Industry JJ (2009) 4 SC191 & V.N. Shrikhande Vs. Anita Sena Fernandes (2011) 1 SCC53.  Thus, complaint is liable to be dismissed on this ground alone.
11. Financial constraint of complainants or illiteracy of their mother is no ground to extend limitation. The complaint is dismissed.
12. Copy of the order be sent to both the parties free of cost.
13. File be consigned to record room.

(O.P. GUPTA)                                                   

MEMBER (JUDICIAL)