Delhi

StateCommission

CC/1608/2017

RAJIV KUMAR GUPTA - Complainant(s)

Versus

M/S BPTP LTD. - Opp.Party(s)

MRINAL BHARAT RAM

13 Oct 2017

ORDER

IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI

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

Date of Arguments :13.10.2017

Date of Decision :17.10.2017

Complaint No.1608/2017

IN THE MATTER OF:

 

Shri Rajiv Kumar Gupta,

S/o. Shri B.K. Gupta,

R/o. 100, Sunder Nagar,

Delhi-110003.                                                                                               ……Complainant

                                                                        Versus

M/s. BPTP,

Registered Office,

M-11 Middle Circle,

Connaught Circus,

New Delhi-110001.                                                                                  ….Opposite Party

 

HON’BLE SH. O.P.GUPTA, MEMBER(JUDICIAL)

HON’BLE SH. ANIL SRIVASTAVA, MEMBER

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

 

Present:        Shri Mrinal Bharat Ram and Shri Aditya Laroyia,

Counsel for the Complainant.

                        None for the opposite party.

 

PER  : SHRI ANIL SRIVASTAVA, MEMBER

          The dispute in the complaint filed by Shri Rajiv Kumar Gupta resident of Delhi, for short complaint, is whether he is entitled for the compensation from BPTP Ltd., hereinafter referred as OP for being deficient in rendering service to the complainant and if so whether this commission can issue a direction when the possession of the flat has already been taken over by the complainant unconditionally.

Facts of the case, necessary for the adjudication of the complaint are these.

On the representations and assurances of the OP, the complainant had booked a plot of land in the project of the OP known as Parksland, located at Faridabad, Haryana by paying the booking amount. OPs had allotted the  complainant  a plot bearing no.13-03, Block-J, Phase-I. This plot was booked by the complainant for his own use. The complainant had thereafter made  the payment to the  OP as demanded from time to time and he was also allotted a customer code bearing no.PF1/R0472. This plot was originally allotted to Smt. Saroj Jain when the provisional registration of the plot in the name of the complainant was done on 27^th November, 2006. The complainant entered into a plot Buyers Agreement at New Delhi with the OP for  purchasing the plot bearing no.J13-03, phase-I admeasuring 250 sq  yards in the Project Parksland, Faridabad, Haryana. The complainant has alleged that the terms and conditions as contained in the Plot Buyers Agreement are prima facie, unfair, one sided and heavily loaded in favour of the OP. For instance, as per Clause 12 of the Plot Buyer’s Agreement, if the complainant fails to make timely payments of the installments, then he will be liable to pay late payment charges along with interest on the amount @18% p.a. compounding at the time of every succeeding installment. Further, if the complainant failed to pay the installment within 3 months time from the due date then the OP had the option to cancel the agreement and to forfeit the earnest amount paid by the complainant. However, as per Clause 22.3, if the OP failed to deliver the possession of the plot within the stipulated time then it would be liable to pay a meager amount of Rs.6/- sq. mtr. per month for a period of such delay.

The complainant for the allocation of the said plot made the following payment:-

S.No.	DATE OF DEPOSIT	DATE OF RECEIPT	DESCRIPTION	AMOUNT (RS.)
1.	01.08.2006	20.11.2006	Registration amount	7,00,300/-
2.	07.11.2006	20.11.2006	Basic Sales Price	1,75,075/-
3.	09.11.2006	23.11.2006	Infrastructure Development Charges	55,625/-
4.	09.11.2006	23.11.2006	External Development Charges	64,000/-
5.	12.04.2007	16.04.2007	Infrastructure Development charges	51,620/-
6.	12.04.2007	14.04.2007	Basic Sales Price	1,37,259/-
7.	12.04.2007	17.04.2007	External Development Charges	59,392/-
8.	22.10.2007	25.10.2007	Basic Sales Price + External Development Charges	2,30,468/-
9.	14.11.2007	16.11.2007	Basic Sales Price	1,26,579/-
10.	20.12.2007	22.12.2007	Basic Sales Price + External Development Charges	2,30,468/-
11.	07.07.2008	11.07.2008	Basic Sales Price	1,26,580/-
12.	25.08.2009	26.08.2009	Basic Sales Price + UCC	99,386/-
13.	25.08.2009	26.08.2009	Maintenance Security Deposit + Sinking Fund Charges + Refundable Contingency Deposit + Maintenance Charges	74,010/-
14.	25.08.2010	27.08.2010	Maintenance charges	5,293/-
15.	Nil	01.11.2011	Maintenance Charges	4,785/-
16.	03.04.2012	03.04.2012	Basic Sales Price + EEDC + E STP	6,14,309/-
17.	03.04.2012	03.04.2013	Administrative Charges	7,997/-
18.	03.04.2012	03.04.2012	Conveyance Deed + Stamp Duty	1,34,050/-
		Total		28,97,196/-

However on 14.07.2009 the OP offered possession of the plot no.J13-03 admeasuring 241 sq. yards to the complainant. It is pertinent to mention that the complainant had booked a plot admeasuring 250 sq yards but was allotted plot no.J13-03 admeasuring 241 sq. yards. The complainant has made the payment for the plot of land of the size of 250 sq yards and he has made the necessary payment as if the plot is for 250 sq yards. The complainant under the belief that the excess amount paid by him towards  basic sale price, external development charges etc. would be refunded since the plot of land has been reduced in size. This was never done. On the contrary the complainant was forced to pay certain amount towards enhanced ECD alongwith other charges amounting of Rs.6,14,309/-. The complainant was also directed to pay for the conveyance deed charges and stamp duty for the registration of the plot of land.  The complainant had made the  requisite payment and had taken over the possession of the said plot on 26.08.2009 (Annexure C/7 page-86 to 88).

On perusal of para-2 of possession letter it is clearly indicated that the complainant has taken over the possession of the plot as per the agreement to the complete satisfaction and after due inspection and verification. The complainant has also further made the averment that he has no claim against the company of  any kind whatsoever in respect of the allocation of the plot of land of a lesser in size. To put it differently he has accepted the possession of the plot unconditionally and without any protest.

The OP as however despite receipt of payment towards the sale deed did not execute the deed leading to filing of  this complaint. The complainant had also  issued a legal notice  to the OP in this behalf but of no avail. All his  efforts done to persuade the OP to do the needful  regarding execution of the sale deed proved on exercise in futility. He made a request to the OP for the refund of the amount  paid by him but that also did not yield any results. Under these circumstances this complaint has been filed before this Commission under Section 17 under Consumer Protection Act praying for the relief as  under:-

a)      Direct the OP to refund the principal amount of Rs.28,97,196/- (Rupees twenty eight lakhs ninety seven thousand one hundred ninety six only) i.e. the total amount of money already paid by the complainant to the OP with respect to plot bearing no.J13-03 in the “Parksland” project of the OP along with interst @18% per annum to the tune of Rs.44,63,023/- (Rupees forty four lakhs sixty three thousand twenty three only) calculated from the date of first payment, therefore totaling to a sum of Rs.72,76,131/- (Rupees seventy two lakhs seventy six  thousand one hundred thirty one only) and;

b)      Direct the OP to interst @18% per annum on the principal amount of Rs.28,97,196/- (Rupees twenty right lakhs ninety seven thousand one hundred ninety six only) from the date of filing of the present complaint till the date of actual payment; or

c)      Direct of OP to execute and register the conveyance deed of the plot no.J13-03 admeasuring 250 sq. yards in favour of the complainant; and

d)      Set aside the holding charges posted in complainant’s account by the OP; and

e)      Direct the OP to pay the litigation expenses to the complainant amounting to Rs.2,00,000/- (Rupees two lakh only) for the present case; and

f)       Direct the OP to pay a sum of Rs.10,00,000/- (Rupees ten lakh only) to the complainant as compensation for harassment, mental agony and inconveniency to the complainant; and

g)      Pass any such other and further orders as this commission may deem fit and proper in the facts and circumstances of the present case.

This complaint was listed before us for admission hearing on 13.10.17 when the ld. counsel appeared and advanced his argument for the admission of the complaint. We have also perused the records of the case. We  note that the complaint is not maintainable on two accounts, namely, limitation and secondly on the ground that the complainant has taken over the possession of the plot unconditionally, in which case he is no longer a consumer.

The cause of action of the matter arose on taking over the possession of the flat on 26.08.2009 but the complaint has been filed in September, 2017. Section 24 of the Consumer Protection Act, 1986 envisage that the complaint to be entertainable has to be filed within two  years by the Consumer Fora.  

The said provisions of law posits as under:

24.A. Limitation period – (1) 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.

(2) Notwithstanding anything contained in sub-section(1), a complaint may be entrained 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 or the District Forum, as the case may be, records its reasons for condoning such delay.)

The term cause of action used under Section 24(A) has not been defined in the Act and thus the same has to be interpreted keeping in view the context in which it has been used. According to Section 24 A there should have been an application filed within two years from the date of the cause of action.  Cause of action in the given case arose on 12.10.2013 the date on which the possession of the flat was delivered but the complaint has been filed in 2017. No application has been filed praying for condonation of delay.

We have given a careful consideration to the matter.

In the matter of DDA vs. Krishna Lal – IV (2010) CPJ 7 (SC) – their Lordships did not condone the delay of 199 days since sufficient cause for the delay were not shown.

Similarly,

The Hon’ble NCDRC in the matter of Nilesh Goyal Vs. Symphony Infrastructure Pvt. Ltd. – IV(2016) CPJ 678 (NC) – did not condone the delay of 209 days in the absence of any satisfactory explanation.

 Keeping in view the provision of law read with the judgment of the Hon’ble Apex Court and Hon’ble NCDRC, we are  of the considered view that the complaint being barred by the limitation cannot be entertained and accordingly we order dismissing it in limine with no order as to costs.

There is another aspect to look into the matter. The complainant having taken over possession of the flat is no longer a consumer as per the law settled by the Hon’ble Apex Court and thus he is not entitled to raise a consumer dispute. In the given case the possession of the flat has already been taken over. The Hon’ble NCDRC in the matter of Harpal Arya vs Housing Board Haryana – II (2016) CPJ 36 NC – has held:

“Once petitioner has taken over possession with open eyes and without any precondition, he ceases to be a consumer”

Similar view was taken by the Hon’ble NCDRC in the matter of Smita Roy vs. Excel Construction – IV(2012) CPJ 204 (NC)

This is yet ground the complaint is not entertainable.

We order accordingly.

Let a copy of this order be sent to both the parties free of cost as statutorily required.

          File be consigned to Record Room.

(ANIL SRIVASTAVA)                                                  (O.P.GUPTA)

MEMBER                                                            MEMBER (JUDICIAL)