Delhi

StateCommission

CC/1269/2015

SH. AMIT MITTAL & ANR. - Complainant(s)

Versus

M/S PARSVNATH DEVELOPERS LTD. - Opp.Party(s)

VIPIN KUMAR GUPTA

27 Jan 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION : DELHI

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

 

                                                                         Date of Decision : 01.02.2016

                        Date of arguments heard : 27.01.2016

Consumer Complaint No. 1269/2015

1. Shri Amit Mittal

S/o Sh. Kuldeep Mittal

 

2. Mrs. Shikha Gupta

W/o Shri Amit Mittal

Both at present residing at

1325, New Haven Ct Glen allen, VA, U.S.A.

 

Also at:

 

78, Subhash Colony

Ambala Cantt, Ambala-133031

 

(THROUGH THEIR DUTY

 CONSTITUTED ATTORNEY

Shri Kuldeep Kumar Mittal

S/o Late Shri Diwan Chand Mittal

R/o 78, Subhash Colony, Ambala Cantt.

Ambala – 133031  (Haryana)

……Complainants

Vs.

 

M/s. PARSVNATH DEVELOPMERS LTD.

Through its Managing Director

Regd & Corporate Office:

6^th floor, Arunachal Building,

19, Barakhamba Roar,

New Delhi-110001

…Opposite Party

CORAM

 

O.P. Gupta,Member(Judicial)

 

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.       To be referred to the reporter or not?

 

O.P. Gupta, Member (Judicial)

 

1.         The present complaint for compensation of Rs74,03,421/- and interest @24% is being considered for the limited purpose of limitations. The break up of the compensation is as below :-

1. Rs.22,23,217/-  - Principle Amount
2. Rs.37,35,004/-  - Interest  from Sept., 08 till August, 15.
3. Rs.4,45,200/-    - As amount of penalty for delay in construction @                                  Rs.5/- per Sq. ft. from Sept., 11 to August, 15
4.  Rs.10,00,000/-  - As compensation on account of mental                                          harassment, agony and tension.

2.         Briefly narrated the allegations of the complainant are that they booked three bed room residential flat No. R-11 – 402 having super area of 1855 sq. ft. in Greater Noida vide receipt dated 15.7.08. After receiving Rs.10/- lacs, the OP confirmed booking of flat through letter dated 30.7.08. Flat Buyer agreement was executed. Complainant further paid Rs.12,23,217/- vide receipt dated 28.7.08. Complainants requested OP to furnish status of construction vide e-mail dated 18.6.14. However, the complainant visited the site and found that construction work lhas not been commenced. Hence letter dated 18.7.14 for refund was sent. Notice dated 12.1.15 was sent.
3.         Since complainants have not asked for possession, the complaint should have been filed within two years from the date when the OP committed default and the complainants became entitled to refund of the amount. As per clause 10 A of Flat Buyer Agreement (page 46), the flat was likely to be completed within period of 36 months The agreement bears dated 19.8.08. Thus the flat should have been completed by 19.8.11. But the complaint has been filed on 22.12.15. It was also put to the Counsel for the complainant that in case the complainant seeks possession of the flat, the cause of action is continuous. But as complainant is not seeking possession, the complaint is barred by limitation.
4.         The Counsel for the complainant cited decision of the National Commission in Vasant Mahaderao Kate Vs. Shastri Guha Nirvan Sarkari Sanstha Ltd. II (2015) CPJ 4 to make out that cause of action is continuous unless the plot is handed over to him.  In the said case as is clear from para 2 of the judgment, the complainant filed case with request to direct the OP to allot him booked flat. Counsel for the complainant also relied upon decision of the National Commission in Quality Coloniser Pvt. Ltd. Vs. Sunita Bali Vol IV (2014) CPJ 798. In that case no issue of limitation has been raised or decided. Same is the fate of decision in P. Ratna Kumari Vs. Y. Kiran Kr. II (2015) CPJ 52 NC.
5.         In EMMAR MGF Land Ltd. Vs. Parvinder Singh II (2015) CPJ 395 National Commission held that when builder never made the purchaser aware that flat was situated in acquired land and has falsely assured it as of necessary approval and promotes residential plots, the false information amounted to unfair trade practice. Again there is no discussion regarding limitation. Same is the situation in decision in K.C. Shah Vs. Indu T. Patil II (2015) CPJ 676 (NC).
6.         In Merut Development Authority Vs. Mukesh Kumar Gupta Vol IV (2012) CPJ 12 the Hon’ble Supreme Court did not find the complaint barred by limitations by observing that complaint has a recurring cause for filing complaint in the matter of non delivery of possession. This indicates that complainant sought possession in the cited case. In Sidhartha DE Sikder Vs. Ramesh Chandra Basak II (2015) CPJ 332, the cause of action was found to be continuous in a matter where conveyance deed has not been executed or registered in favour of the complaint. That is not the situation in the present case.
7.         In view of the above discussion, I find that the complaint is barred by limitation. The same is dismissed at admission stage.
8.         A copy of this order as per the statutory requirements be forwarded to the parties free of charge.
9. File be consigned to record room.

 

(O.P. Gupta)
Member (Judicial)