Haryana

Ambala

CC/148/2023

MOHINDER KUMAR MAJITHIA. - Complainant(s)

Versus

MUNICIPAL CORPORATION (IMPROVEMENT TRUST CELL) AMBALA. - Opp.Party(s)

ABHINAV KALIA

19 Apr 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AMBALA

 

Complaint case no.	:	148 of 2023
Date of Institution	:	11.04.2023
Date of decision	:	19.04.2023

 

Mohinder Kumar Majithia aged about 79 years, resident of H.No.52, Vikas Vihar, Ambala City, Haryana.       

……. Complainant.

                                                Versus

Municipal Corporation (Improvement Trust Cell) Ambala through its Commissioner, (Ambala City).

….…. Opposite Party

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member

 

Present:      Shri Amandeep Bawa, Advocate, counsel for the complainant.

 

Order:        Smt. Neena Sandhu, President.

1.                Office report seen. This complaint has been filed by complainant, under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to it:-

1. To refund Rs.91,313/- charged illegally towards enhancement of additional price over and above than due on plot owned by complainant.
2. To pay interest @ 15% per annum on above amount from the date of payment to OP, till realization.
3. To pay Rs.15,000/-, as compensation for causing financial loss, mental agony to the complainant.
4. To pay Rs.5,000/-, as litigation costs.
382.  

          Grant any other relief which this Hon’ble Commission may deem      fit.        

2.           Brief facts of the case are thatthe complainant purchased plot bearing no.52, measuring 207 Square Meters situated at Vikas Vihar (also known as Scheme No.19) Ambala City, which was carved out as per Master plan by erstwhile Improvement Trust Ambala, after which, the same was approved by the State of Haryana and now by act of Government, the said Improvement Trust Ambala is merged with the OP. The plot owned by complainant was carrying tentative price and the condition of the then Improvement Trust Ambala regarding payment of additional price was agreed to by complainant in accordance with terms and conditions of allotment letter/conveyance deed. It is pertinent to mention here that the complainant never received any demand notice dated until 17.11.2015 and still vide letter dated 17.11.2015, the OP demanded an amount of Rs.1,16,168/- towards additional price pertaining to plot owned by the complainant and Rs.7,261/- towards interest of delay in payment by complainants. Despite the fact that the complainant had never received any such demand prior to the date i.e 17.11.2015 and accordingly the complainant had deposited the payment of Rs.1,16,168/- and requested the OP to waive off the interest as he had never received any letter prior to 17.11.2015,  vide receipt No.8789 dated 18.11.2015. It is further relevant to mention here that on 11.12.2018, the complainant again received a demand letter for the OP to deposit the payment of Rs.11,097/-, on account of penalty for delay in depositing the additional price pertaining to the plot owned by the complainant, despite the fact that there was no delay in making the payment on the part of the complainant. The complainant was left with no other option but to deposit the sum of Rs.11,097/-. The said amount recovered by the OP was illegal and without any justification as a similar situated case has been filed by some of the resident of Vikas Vihar (same colony where complainant resides) vide consumer complaint No.14 of 2018 and this Commission had passed the order on 02.08.2019 in the favour of the residents by directing the OP to refund the amount which had been deposited by the residents, after the demand raised by the OP. After the passing of the judgment dated 02.08.2019, the complainant came to know about the fact that the OP was directed to refund the excess enhanced amount to the allottees as the said amount demanded by the OP was in excess. Thereafter, complainant contacted the OP to refund the excess amount paid by him in lieu of demand notice dated 18.05.2015, but it did not pay any heed towards the same and advised the complainant to file a complaint before this Hon’ble Commission. Feeling aggrieved by the inaction of the OP, complainant filed the present complaint before this Hon’ble Commission. It is apposite to mention here that the Hon’ble Apex Court vide order dated 10.01.2022 had excluded the time of limitation w.e.f 15.03.2020 to 28.02.2022. However, complainant is having a concurrent cause of action against the inaction of the OP, being the competent authority had charged the excess enhancement amount from him. The cause of action has accrued to the complainant firstly on 18.05.2015, when the OPs sent a demand letter. Further the cause of action had accrued on 02.08.2019, when this Hon’ble Commission had passed an order directing the OP to refund the excess amount charged by the OP, in the similar situated case. In the case of the complainant, the cause of action is concurrent in nature and continuing as the OP had not refunded the amount so deposited by the complainant till date. Thus, the present complaint is being filed within the period prescribed under the Act, therefore, is well within the period of limitation. The OP while spreading out award of Hon'ble High Court arising out of CWP 2815 of 1987 (decided on 19.12.2008) wrongly added following area as 'non saleable area' and accordingly charged the amount of enhancement pertaining to following area from plot holders of residential area and including complainant as under:-

(a) Area toward INCO side = 7835 S M

(b) Area towards Railway line =4080 S M

(c) Area under Sarai (Community Centre) - 2100 S M

The OP wrongly took area under shopping consisting of Shops under rent, SCFs, Booths as 3480 S M and not 6970 SM including parking in front of said shopping area. As a matter of fact, the total shopping area is 6970 S M in Scheme no.19. The award of enhancement passed by the Hon'ble High court in the above detailed CWP was on entire area consisting of 79515 square meter and not on limited area. The OP out of total calculated enhancement of Rs.2,29,19,354.93, charged a sum of Rs.46,25,021.17 towards interest illegally which is not payable being time barred as the OP did not issue demand notice to plot holders/assignees for more than 6 years (i.e. 77 months) and charged interest @ 15% on the amount of enhancement of price during that period, illegally. The OP under the threatened action as detailed in the notice dated 18.05.2015, is trying to recover the amount mentioned in the impugned notice and in case the total amount of Rs.2,29,19,354.93 is spread over the entire saleable area (excluding non saleable area falling underneath Roads, Parks, green belts etc. in residential area) and excluding excess amount of interest as mentioned above, the recoverable rate would come out to be Rs.208.76 per Square meter. The OP has committed deficiency in service. Hence, the present complaint.

3.           We have heard the learned counsel for the complainant and have also carefully gone through the case file.
4.           Learned counsel for the complainant has submitted that the complainant received the demand notice dated 17.11.2015 for payment of additional amount of Rs.1,16,168/-, pertaining to the plot owned by him, from the OP. Accordingly, complainant paid the amount of Rs.1,16,168/- vide receipt No.8789 dated 18.11.2015. Vide letter dated 11.12.2018, OP demanded a sum of Rs.11,097/-, on account of penalty for delay in depositing the additional price, which was duly paid by complainant, on 14.12.2018. The said amount was recovered by the OP illegally and without any justification and in a similar situated case, some of the resident of Vikas Vihar filed a consumer complaint No.14 of 2018 before this Hon’ble Commission, which was allowed and vide order dated 02.08.2019, this Hon’ble Commission directed the OP to refund the amount received from the said consumer. After coming to know about the said order passed by this Hon’ble Commission, complainant requested the OP for refund of the amount taken in excess from him, but it refused to refund the said amount. The cause of action accrued to the complainant on 14.12.2018 when he paid the amount of Rs.11,097/-, as demanded by the OP and thereafter on 02.08.2019, when this Hon’ble Commission ordered the OP to refund the excess amount.
5.           It may be stated here that OP raised the demand of Rs.1,16,168/- vide demand notice dated 17.11.2015. Complainant paid the amount of Rs.1,16,168/- vide receipt No.8789 dated 18.11.2015 and thereafter, paid the penalty amount of Rs.11,097/-, on 14.12.2018, as demanded by the OP vide letter dated 11.12.2018.  Meaning thereby, cause of action has arisen to the complainant for redressal of his grievances, finally on the date when he deposited the entire amount alongwith penalty with the OP i.e on 14.12.2018 and not from the order dated 02.08.2019, passed in CC No.14 of 2018, in the case of Viplove Kumar Vs. Municipal Corporation (Improvement Trust Cell). As per Section 69 of Consumer Protection Act, 2019, the complaint could be filed within the period of two years from the date of accrual of the cause of action. The plea of the complainant is that the Hon’ble Apex Court vide order dated 10.01.2022, had excluded the time of limitation w.e.f 15.03.2020 to 28.02.2022. It may be stated here that if the period of two years are counted from December 2018, after excluding the period from 15.03.2020 to 28.02.2022 due to COVID 19, in view the order dated 23.03.2020 passed by the Hon’ble Supreme Court in Civil Original Jurisdiction, Miscellaneous  Application  No.21  of 2022 In  Miscellaneous  Application   No. 665 of 2021 In Suo  Moto  Writ  Petition (C)  No. 3 of 2020, In  Re:  Cognizance  For  Extension of Limitation, that the period from 15.03.2020 till 28.02.2022 (with extension of 90 days) i.e. till the end of May 2020 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings. If we exclude the period of extension of limitation from 15.03.2020 to 28.02.2022 even then, the complainant could have filed the complaint in the year 2022 but he has filed the present complaint on 11.04.2023 as there is delay of one year and ten days in filing the present complaint. The complainant has even also not filed any application for condonation of delay. It may be stated here that passing of order by this Commission in some other complaint case, referred to by the complainant, will not extend the period of limitation, in favour of the complainant. Since, the complainant has filed the present complaint on 11.04.2023, for redressal of his grievance i.e. after a delay of about one year and ten days, from the date of accrual of cause of action. Therefore, the complaint filed by the complainant is time barred and is liable to be dismissed in limine.
6.           In the case of State Bank Of India vs M/s. B.S. Agricultural Industries (I), CIVIL APPEAL No. 2067 of 2002, decided on 20 March, 2009, the Hon’ble Supreme Court has held that:- provisions of Section 24-A of CP Act, 1986 is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of action. It is further held that “………If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside……”
7.           In view of the aforesaid discussion, the complaint filed by the complainant is dismissed in limine being barred by limitation. Certified copy of this order be supplied to thecomplainant, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.     

Announced on:-19.04.2023.

 

	(Ruby Sharma)	(Neena Sandhu)
	Member	President