Delhi

North

CC/123/2020

RAKHI GUPTA - Complainant(s)

Versus

M/s.VVIP HOMES, - Opp.Party(s)

AMIT GUPTA

31 May 2023

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

CC No. 123/2020

Mrs. Rakhi Gupta

W/o Sh. Sharad Gupta

R/o Shanti Niwas, 6 Underhill Road

Civil Lines, Delhi-110054                                                       …       Complainant

 

Vs.

M/s VVIP Homes,

Solitaire Infrahome Pvt. Ltd.

Through its

Chairman/ Managing Director/ Director

 

Registered Office at:-

D-835, New Friends Colony,

Delhi-110065

Corporate Office at:-

VVIP Addresses

Rajnagar Extension, NH-58

Ghaziabad-201002, Uttar Pradesh

 

Project Office:-

GC-03K/GH-03, Sector 16-C,

Greater Noida (West),

G.B Nagar -201306                                                             …       Opposite Party

 

 

31.05.2023

Present: Shri Amit Gupta, Ld. Advocate for Complainant

Shri Rudrashish Bhardwaj, Ld. Advocate for OP

 

ORDER

(Divya Jyoti Jaipuriar)

By way of this order, we are disposing the application filed by the OP. By way of the said application, the OP has sought dismissal of the complaint on the ground of delay in filing the complaint. Pursuant to issuance of notice on this application, Complainant has filed its reply and has opposed the stand taken by the OP. We have heard the arguments of Ld. Advocates of respective parties on last date of hearing before listing this application for orders.

2. Before proceeding further it is important to point out certain facts relevant to this case. The Complainant booked a flat in the project namely “VVIP Homes” which was to be constructed by Opposite Party herein at Greater Noida in the year 2014. The total agreed cost of the flat was Rs.45,21,977/- and the Complainant made the payment of Rs.2,24,736/- to the OP while booking the said flat on 04.11.2014. Accordingly, the both the parties have signed the Builder Buyer Agreement, which is titled as “allotment letter” on 03.01.2015. Parties have not disputed signing of this builder buyer agreement/ allotment letter.

3. Subsequently, the allotment of the Complainant was cancelled and the amount so paid by the Complainant was forfeited by the Opposite Party. The Complainant has challenged the said forfeiture of the amount and prayed for a direction to the Opposite Party, inter alia, to refund the amount so forfeited by them. The Opposite Party contends that as the Complainant was required to make the subsequent payment within 45 days of the booking which the Complainant paid to make the allotment of the Complainant was automatically cancelled and the booking amount so paid by the Complainant was forfeited in accordance with clause 9 of the Allotment Letter/ Builder Buyer Agreement.

4. The Complainant alleges that before cancelling the allotment and forfeiting the amount, no intimation was given to the Complainant. During argument Ld. Advocate for the OP has indicated that although the clause 9 of the Builder Buyer Agreement mandates automatic cancellation in case there is default of payment by more than 45 days, the Opposite Party, in goodwill gesture, did not cancel the allotment until 29.07.2015 after issuing several demand letters and reminders to the Complainant as there was failure on part of the Complainant in making the payments.

5. For the convenience, the clause 9 of the terms & conditions of the Builder Buyer Agreement is re-produced here:

“9. That timely payment of installments as indicated in the schedule of payment is the Essence of the Allotment. No separate letter for payment of installments on the due dates will be issued. It will be obligatory on the part of the Allottee to make the payment on or before the due dates. If any installment(s) as per the payment schedule is not paid by the due date the Company will charge 24%interest per annum on the delayed payment for the period of delay. However, if the payment remains in arrears for more than 45 (Forty Five) days or 2 (Two) consecutive demands whichever is earlier, the Allotment will automatically stand cancelled without any further intimation to the Allottee and the Allottee will cease to have any lien on the Apartment. In such a case, the amount deposited up to 5% of the basic sale price of the Apartment + services tax as applicable will stand forfeited and the balance amount received by the Company if any will be refunded without any interest. However, in exceptional and genuine circumstances the Company may, at its sole discretion, condone the delay in payment by charging a minimum interest @ 24% per annum of the amount outstanding, but shall not  be bound to do so.”

6. The terms & conditions clearly stipulates if the payment of instalment remains unpaid for more than 45 days or two consecutive demand whichever is earlier, the allotment shall automatically stand cancelled without any further intimation to the allottee. The said condition also stipulates that in case of such cancellation 5% of the total cost of the flat shall be forfeited. Ld. Advocate for the OP states that cost of which in terms of Builder Buyer Agreement including the service tax is Rs.45,21,977/- and the 5% of the said amount comes to Rs.2,24,736/-. As the total payment made by the Complainant was even less than 5% of the total cost of the flat, the said amount was duly forfeited.

7. Ld. Advocate for the OP has also argued that the allotment of the Complainant was cancelled on 29.07.2015 but the Complainant has filed this complaint only on 16.12.2020. As the Complainant has only sought the refund of the amount so paid and has not alleged any delay in possession of the flat, it is argued by Ld. Advocate for the OP that the Complainant cannot take the plea of continuous cause of action. In the case in hand, the cancellation of the allotment and forfeiture of the amount by the OP is the actual cause of action which arose in duly 2015 and the Complainant should have been filed before July 2017. The Complainant has not done so and has also not moved an application seeking condonation of delay of has not even explained in the main complain, the reasons for coming to Commission at such belated stage. Accordingly, Ld. Advocate for the OP prays for dismissal of the complaint on the ground of delay in filing the complaint.

8. In the reply as well as during the arguments has maintained that there is no delay in filing this complain and this complaint is maintainable under the provision of the Consumer Protection Act. However neither in the application nor during the argument Ld. Advocate for the Complainant could explain that when the Complainant had the knowledge of the cancellation done in July 2015, why the Complainant was waiting for almost 5 years before filing this complaint. It is pertinent to mention here that in paragraph 8 and 9 of the complainant, the Complainant has clearly mentioned that the booking of the Complainant was cancelled in July 2015. There is no specific averment in the complaint about the date of knowledge about such cancellation, in absence of such averment we are safely assuming that the Complainant was in complete knowledge of cancellation in July 2015 itself. Once there is knowledge than the limitation period for filing complaint starts from such date and the complaint must be filed within two years period as prescribed under the Provisions of Consumer Protection Act, 2019.

9. In consumer cases, it is an established principal that the complaint should be filed within a period of two years from the date when the first cause of action arises. In the case in hand, the first cause of action arose in the year 2015 when the allotment of the flat was cancelled by the OP. Hence the complaint should have been filed within two years from the date of such cancelation by OP. The Limitation period, thus, by all means, ended in the year 2017. But the Complainant has filed this complaint only on 16.12.2020 without explaining the reasons for delay or even seeking condonation of delay in filing the complaint.

10. In the matter of Kandimalla Raghavaiah Vs. National Insurance Company Ltd. [(2009) 7 SCC 768], Hon’ble Supreme Court has held that for the purpose of calculating the limitation under the provisions of Consumer Protection Act, the date on which first cause of action has arisen should be considered. In the case in hand the first cause of action arose in 2015 when the allotment was cancelled. Hence the limitation period of two years as prescribed under the Consumer Protection Act, 1986 as well as under Consumer Protection Act, 2019 starts from 2015 and the complaint must be filed within the limitation period as prescribed in CPA.

11. Further, in Kandimalla Raghavaiah case (Supra), Hon’ble Supreme Court has also held that the complaint is liable to be dismissed, if the delay is not duly explained. In the case in hand, the Complainant has not explained the reasons for the delay in filing this complaint. In the matter of State Bank of India vs B S Agriculture (I) [(2009) 5 SCC 121], Hon’ble Supreme Court has held that Consumer Forum should deal with the merit of the case only if the complaint is filed within the limitation period or if the Complainant has explained the cause of delay. In such case, the Consumer Forum is required to pass a reasoned order condoning a delay. In the case in hand, the Complainant has not explained the reasons for the delay and it is also filed this complaint beyond the limitation period as prescribed.

12. It is also to be noted here that the limitation can be extended in cases where the delay is attributed to the action/ inaction by the Opposite Party. In the case in hand, the Complainant has not been able to establish that the cancellation of the allotment and forfeiture of the amount was not communicated in time and such delayed communication would extend the time for filing the complaint. As a matter of fact, the Complainant, in the complaint, has accepted that the cancellation was done in July 2015 and she had the knowledge of cancelation. In absence of any averment about the delay in communication of cancellation, we cannot simply assume facts in favour of Complainant.

12. Accordingly, we are of the opinion that the Complainant has filed this complaint beyond the limitation period as prescribed under the provisions of the Consumer Protection Act and has also not explained the reasons for such delay. Therefore, while following the judgments of Hon’ble Supreme Court as quoted above, we are inclined to allow the application filed by the Opposite Party.

13. Accordingly, the application filed by the Opposite Party is allowed and the complaint filed by the Complainant herein is dismissed on the ground of delay. However, in the interest of justice, we grant liberty to the Complainant to avail any other remedy as available to her under the law, if so advised. While doing so, the Complainants may seek the benefit of the judgment of Hon’ble Supreme Court in the matter of Laxmi Engineering Works vs. P.S.G. Industrial Institute [(1995) 3 SCC 583] to explain the delay, if any, if the same is available to her. Needless to say we have not expressed any opinion on the merits of the case and if the Complainant approached any other Forum/ Court, the same shall decide the case on its own merit without being influenced by any of the observations made in this order.

14. Office is directed to supply the copy of this order to the Complainant as per rules. Office is also directed to return all original documents filed by the Complainant, if any, after keeping copies of the same in the record. Thereafter, file be consigned to the record room.

15. Ordered accordingly.

 

 

___________________________

Divya Jyoti Jaipuriar, President

 

 

 

___________________________

Ashwani Kumar Mehta, Member

 

 

 

___________________________

Harpreet Kaur Charya, Member