SH. SANJAY KUMAR, PRESIDENT
ORDER
05.06.2023
A complaint under Section 35 of Consumer Protection Act filed. In brief the facts are that in the month of September 2004 OP came out with a lucrative scheme of investment in the residential plots to be alloted in sonipat near Tau Devi Lal Park, Haryana, under the present and future project and pursuaded the general public to invest their hard money in the aforesaid project.
In the third week of December 2005 complainant visited the office of the OP for enquiry regarding the ongoing residential project of the OP. The OP introduced one sunder lal talwar with the complainant who had already booked a plot admeasuring about 400 sq. yard in the aforesaid project by paying the advance of Rs.2,25,000/- vide receipt no. PS/S0335 dated 15.09.2004 but due to some financial constraint want to sale the said booking. Believing on the representation of OP company complainant purchase the said booking from Sh. Sunder Lal Talwar. OP further asked the complainant to pay a sum of Rs.5,35,000/- towards 50% of the cost of the plot in addition to the aforesaid booking amount and accordingly on 19.12.2005 the complainant purchased the aforesaid booking of the plot from Sh. Sunder Lal Talwar after paying him the booking amount of Rs.2,25,000/-. Complainant also paid a sum of Rs.5,35,000/- to the OP on 22.12.2005. The OP duly mutated the aforesaid booking in the name of the complainant by making an endorsement on the back of receipt no. PS/S0335. OP further assured the complainant for early allotment of the residential plot.
It is alleged by the complainant that since the date of the payment she is continiously pursuing the OP and has written numerous letters to the OP to allot and handover the residential plot in her favor and accept the remaining amount of Rs.7,60,000/- but OP did not pay any heed to the request made by her. It is further alleged that the representations made by OPs were false and were dishonestly made with the sole intention to cheat the complainant of her hard earned money. It is alleged by the complainant that OP failed to deliver the plot within stipulated time. The complainant sent a legal notice dated 20.03.2023 and 20.04.2023 to the OP. OP neither replied to the legal notice nor had complied the same. Being aggrieved by the conduct of the OP the complainant knock the door of this commission for redressal of her grievance.
Argument on admission heard. Let us peruse the relevant provision in respect of limitation provided under Consumer Protection Act.
As per section 69 of Consumer Protection Act, 2019: -
- 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.
- Notwithstanding anything contained in subsection (1). A complaint may be entertained 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, as the case may be records its reason form condoning such delay.
A perusal of the aforesaid statutory position reflects that the complaint should be preferred within a period of two years of the accrual of cause of action.
Admittedly, in the present case the cause of action for filing the present complaint arose first time on 19.12.2005 when the complainant paid a sum of Rs.2,25,000/- to Sh. Sunder Lal Talwar. Thereafter the cause of action further arose on 22.12.2005 when the complainant deposited a sum of Rs.5,35,000/- to the OP, thereafter finally the cause of action arose on 16.01.2006 when the OP issued the endorsement receipt in favor of the complainant. Thereafter the complainant remained silent for 17 years and thereafter the complainant issued the letters to the OP company regarding the allotment of plot in question, as stated in the pleading but the complainant failed to place on record any such correspondence. The complainant has placed on record the copy of the letters issued to the OP without any date but the same does not bear any receiving on the part of the OP nor any tracking report placed on record. The complainant has placed on record the copy of the whatsapp messages, but this messages has no legal sancity as the complainant failed to implede the same in its pleading moreover the complainant had failed to place on record as to whom he had send this whatasapp message and what is the designation of the person in the OP company to whom he had sent those messages, hence the same cannot be considered as correspondence between complainant and OP company.
During the course of the argument the Ld. Counsel for complainant relied on the judgment of Hon’ble State Commission, Delhi dated 04.08.2022 titled as Vikas Bhutani VS M/s TDI infrastructure Ltd. and submits that present case is squarely covered under the aforesaid judgment and the present complaint is well within limitation.
We have carefully gone through the record as well as the judgment cited by Ld. Counsel for complainant.
The complainant had relied upon the judgment of Hon’ble State Commission, Delhi, however the same is distinguishable in the present case as in this case the last date stipulated in the buyer agreement for giving possession expired more than two years ago and it is a settled legal proposition that failure to give possession of the flat is continuous wrong and constitute a recurrent cause of action as long as the possession is not delivered to the buyer. It is only when the seller virtually refuse to give the possession that the period of limitation prescribed under Section 24 A of C.P Act would start.
Admittedly, the complainant deposited the sum of Rs.7,60,000/- with the OP in the month of December 2005. Thereafter in January 2016 the OP issued the endorsement letter in favor of the complainant. The complainant has failed to place on record any agreement/contract arrived between the parties, thereby stipulating the specific period regarding the allotment of the plot in question. The complainant in its complaint at Para 6 had simply mentioned that the OP had assured her for the early allotment of the residential plot in question. Hence, we are of the considered view that when no specific time of allotment had been mentioned nor any contract has been placed on record regarding the consideration amount of the plot in question as well as the specific period of allotment the judgment cited above is not applicable in the present case.
In the present case the complainant has failed to place on record the builder buyer agreement or any contract signed between the parties, thereby stipulating the period of delivery of possession of the plot in question. In fact, the complainant deposited 50% of the consideration value of the plot (as stated by the complainant) whereas no such a document has been placed on record which shows that the consideration amount of plot in question is Rs.15,20,000/-. The complainant paid a sum of Rs.7,60,000/- with the OP in the year 2005 and thereafter never paid any amount to OP against the plot in question and had knocked the door of this Commission after 17 years of the deposit of the amount and that too without any delay condonation application.
In view of the above discussion we are of the considered view that the complainant failed to place on record any documentary evidence regarding the continuous accrual of cause of action in her favour. The complainant has filed the present complaint on 18.05.2023 i.e after 17 years of the accrual of the cause of action.
Now applying the above discussed provision and principle of law admittedly, the cause of action arose on 16.01.2006. There is no documentary proof and explanation why complainant failed to approach the commission within two years of the accrual of cause of action. The present complaint is therefore barred by limitation as filed after 17 years of the accrual of final cause of action. Hence dismissed.
File be consigned to record room.
Sanjay Kumar Nipur Chandna Rajesh
President Member Member
