APPEARED AT THE TIME OF ARGUMENTS

PRONOUNCED ON : 23^rd FEBRUARY 2018

O R D E R

PER DR. B.C. GUPTA, MEMBER

          These two appeals have been filed under section 19, read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 29.09.2016, passed by the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in consumer complaints No. 1034/2016 & 1035/2016, vide which, the said complaints were ordered to be dismissed in limine.

2.       The facts involved in consumer complaint No. 1034/2016 are that the complainant Piyush Goel purchased a residential flat constructed by the Opposite Party (OP), M/s DLF Home Developers Limited in their project, called “New Town Heights” at Gurgaon, Haryana, for which an Apartment–Buyers’ Agreement was entered between the parties on 08.10.2008.  The possession of the constructed flat was to be delivered within 36 months of the date of the agreement, i.e., by 07.10.2011.  It has been stated that the actual delivery of the said flat took place on 11.10.2013.  The conveyance deed for the property was executed on 10.09.2015.  Alleging unfair trade practice on the part of the OPs in the late delivery of the property, the complainant filed the consumer complaint in question, seeking compensation from the OPs by way of interest on the amount deposited for the period of delay and also claiming refund of the amount charged for increase in super area and parking space respectively.  As per the prayer clause, the complainant demanded a sum of ₹53,40,724/- with future interest @18% p.a. and a sum of ₹2,66,653/- towards increase of super area and ₹6 lakh paid as parking charges.

3.       In the second complaint, i.e., CC No. 1035/2016 filed by Virendra Arya and others, almost similar facts have been narrated.  The possession of the flat was delivered on 15.10.2013 and the sale deed was executed on 15.03.2015.  A sum of ₹66,89,545/- was demanded as interest on delayed payment plus future interest @18% p.a. including a sum of ₹1 lakh for mental agony etc.  A sum of ₹3,16,553.13 was demanded as refund for payment charged for increase in super area and ₹6 lakh for parking charges.

4.       The State Commission vide impugned order dated 29.09.2016 held that the complaints filed on 05.09.2016, were barred by limitation, because the possession of the flats had been obtained by the complainants in the year 2013.  Whatever lacuna were there in the said flats, came to their knowledge at the time of delivery of possession and hence, they should have filed the complaints within the period prescribed under the Consumer Protection Act, 1986.

5.       During hearing before us, the learned counsel for the appellants/complainants submitted that the possession of the properties in question was admittedly delivered to them in the year 2013, whereas according to the terms and conditions of the Apartment–Buyers’   Agreement between the parties, such possession was to be delivered in the year 2011.  The learned counsel emphasised that certain other similar matters had been admitted for hearing by the State Commission and hence, the matters in question should also have been admitted, rather than being dismissed in limine. 

6.       The learned counsel for the OP Builder stated that since possession had been duly taken over by the complainants and the sale-deeds had also been executed, the relationship of consumer and service provider between the parties had already come to an end.  The complainant had, therefore, no right to file the present complaints against them.  In support of his arguments, the learned counsel has drawn attention to an order passed by this Commission in “Samita Roy vs. Excel Construction & Anr.”  [II (2012) CPJ 204 (NC)], and “Harpal Arya vs. Housing Board, Haryana” [2016 SCCONLINE NCDRC 361].   The learned counsel further stated that the complaints were barred by limitation, as the same should have been filed within two years of the delivery of possession in accordance with section 24A of the Consumer Protection Act, 1986. The learned counsel has drawn attention to an order passed by the Hon’ble Supreme Court in “State Bank of India v. B.S. Agriculture Industries (I) [(2009) 5 SCC 121]” and “Nilesh Kotecha & Anr. vs. Ramdas Bavise & Ors. [2016 SCC Online NCDRC 2650],” in support of his arguments.

7.       We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

8.       The main issue that merits consideration in these two cases is whether the consumer complaints are barred by limitation or not.  It has been stated in the consumer complaints itself that the possession of the properties in question was delivered on 11.10.2013 and 15.10.2013 respectively.  The sale-deeds for the said properties were also executed during the year 2015.  The complainants in both the cases have not been able to bring out, as to what prevented them from filing the complaints within the period of 2 years of the cause of action, as prescribed in section 24A of the Consumer Protection Act, 1986.  We have no reasons to differ with the conclusion arrived at by the State Commission that at the time of taking possession of the flats, the complainants were expected to be well aware of the lacunae, if any, in the said properties.  They should have taken steps to file the consumer complaints in question at that time.  As laid down by the Hon’ble Apex Court in “State Bank of India v. B.S. Agriculture Industries (I)” (supra), a consumer complaint filed beyond the period of limitation, is liable to be dismissed on this ground alone.  Further, it has been held by this Commission in “Nilesh Kotecha & Anr. vs. Ramdas Bavise & Ors.” (supra), as under:-

“Even otherwise, the complaint is barred by limitation since the construction of the flat was completed by June 1993 when sale deed in favour of respondent No.1 was executed by respondent No.3.  Respondent No.1 was the predecessor-in-interest of the petitioners/complainants in respect of flat in question did not find any defect or deficiency in the said flat and did not seek rectification of any defect in the said flat. The complaint came to be filed in the year 2010, 17 years after the flat had been constructed, possession delivered and sale deed in favour of respondent No.1. Even if the period of limitation is computed from 17.1.2008 when the sale deed in favour of the petitioners/complainants was executed, the complaint was barred by limitation, when it was filed in November 2010.”

9.         From the above discussion, it is evident that both the complaints are barred by limitation and have been rightly dismissed by the State Commission vide impugned order.  We do not find any illegality, irregularity or jurisdictional error in the said order and the same is confirmed.  Both these appeals are, therefore, ordered to be dismissed.  There shall be no order as to costs.