MRIDULA ROY, MEMBER.

MA/94/2013.

No. 11/30.08.2013.

This order relates to the Miscellaneous Application being No. 94/2013.

The Complainant M/s. Adarsh Dealcom Pvt. Ltd. has filed the instant case being No. CC/87/2012 under Section 12 of the Consumer Protection Act, 1986 alleging deficiency in service on the part of the M/s. Havelock Properties Ltd.  The Complainant’s case in brief, is that the Complainant making payment of Rs.3,70,000/- booked a flat on 12.05.2007 at an upcoming project to be launched by the O.P.  The Complainant made further payment of Rs.1,00,000/- on 17.05.2007 to the O.P.  The O.P. intimated the Complainant by a letter dated 19.05.2007 that the O.P. allotted a flat to the Complainant for total consideration of Rs.52,41,180/-.  The O.P. also issued a demand letter dated 19.05.2007 to the Complainant demanding Rs.8,329 /- and the said amount was paid to the O.P. on 14.09.2007 by the Complainant.  Thereafter, the O.P. made no contact to the Complainant although the Complainant made several correspondences to the O.P. asking the O.P. to intimate the fate and/or status of the project.  But the O.P. kept mum.  However, all on a sudden the Complainant received a letter dated 03.12.2008 from the O.P. wherein the O.P. unilaterally cancelled the booking of the said flat.  Thereafter, the officials of the Complainant visited to the office of the O.P. and made several correspondences to the O.P. for delivery of possession of the said flat but all were in vain.  Hence, the Complainant filed the petition of complaint praying for direction upon the O.P. to deliver the possession of the flat in question after receiving balance amount in terms of allotment letter dated 19.05.2007, alternatively to refund the booking amount of Rs.4,78,329/- along with interest @ 24% per annum thereon from the date of payment till date of refund and to pay Rs.5,00,000/- towards compensation.

The O.P. appeared and filed a Miscellaneous Application challenging maintainability of the complaint case stating inter alia, that an allotment dated 19.05.2007 along with payment schedule was issued by O.P. to the Complainant in response to the Application of the Complainant intimating that a residential apartment had been allotted to the Complainant for total consideration of Rs.52,41,180/-. 

The O.P. intimated the Complainant by a letter dated 03.12.2008 that the allotment had been cancelled due to non-payment of the instalment by the Complainant to the O.P.  The O.P. further stated that the said flat was subsequently allotted to Mr. Milton Basu and Paramita Basu on 15.10.2009.  The O.P. specifically stated that after lapse of more than three years from the date of cancellation of the allotment of the said flat the Complainant filed the instant complaint which should be treated as barred by limitation.  The O.P. further stated that the complaint was liable to be dismissed for non-joinder of parties, gross suppression of material facts and frivolity. 

In course of hearing of the instant Miscellaneous Application Ld. Advocate for the O.P. submitted that it is clearly mentioned in Section 24A of the Consumer Protection Act that the case should be filed within two years from the date of cause of action.  Ld. Advocate for the Complainant submitted that it was a case of continuing cause of action.  To determine the point of limitation we rely on the decision reported in 2013 (2) CPR 250 (NC) – Smt. Sonamoni Biswas & Anr. – vs. – Peerless Developers Ltd. & Anr wherein the Hon’ble National Commission held that no relief can be given on a time barred complaint.  In the instant case it is admitted by the Complainant that the Complainant received a letter dated 03.12.2008 from the O.P. by which the O.P. cancelled the allotment of the flat in question.  Therefore, the complaint case ought to have been filed within a period of two years from that date.  Further, Ld. Advocate for the Complainant has not filed and moved any application under Section 24A of the C. P. Act for condonation of delay before this Commission and in such circumstances, the Complainant filed the petition of complaint which was time barred and, as such, it is not maintainable before this Commission. 

Hence, ordered that the Miscellaneous Application being No. 94/2013 is allowed on contest but without any order as to cost.   Consequently, the petition of complaint stands dismissed.