DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.192/2021
Mr. Sunil Kapoor
S/o Late Sh. M.K Kapoor
R/o E 27 Saket,
New Delhi 110017
….Complainant
Versus
- Mr. Bijdendra Agarwal
The Chairman
New Delhi Gymkhana Club India Ltd
At: 56, Krishna Tower, Pocket-7, Block B, Sector 23, Dwarka,
New Delhi-110075
- New Delhi Gymkhana Club India Ltd.
Registered Office at:
New Delhi Gymkhana Club Ltd.
At: 56, Krishna Tower, Pocket-7, Block B, Sector 23, Dwarka,
New Delhi-110075
….Opposite Party
- Delhi Gymkhana Club
2, Safdarjung Road,
New Delhi-110011
Date of Institution: 02.07.2021
Date of Order :18.11.2024
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Present: Adv. Vrinda Kapoor along with Adv. Saumya Soni for
complainant.
None for OP.
ORDER
Member: Ms. Kiran Kaushal
1. Briefly put, complainant purchased membership of New Delhi Gymkhana Club India Ltd. (OP-2). President/Chairman of OP-2 who is responsible of day to day business of OP-2 is hereinafter referred to as OP-1.
2. It is stated that OPs claimed and represented that they were setting up a club ‘New Delhi Gymkhana Club’ as branch/wing of the Gymkhana Club, New Delhi. The said club was to offer recreational services at Sector 23 Dwarka, New Delhi and invited the applications for allotment of membership in the said club. The membership of the club was offered against the consideration of Rs.11,00,000/- payable in installments as per the installment linked plan.
3. Complainant paid the booking fee of Rs.2,00,000/ along with application for membership. Upon receiving the payment of booking as well as registration fee, complainant was confirmed with membership and was provided a membership letter. It is stated that complainant paid the first installment of Rs.2,00,000/- on 29.03.2016 and OP issued receipt no. 1052 for the same. After almost two years complainant was informed by one of the representatives of OP-1 and OP-2 that the project is stalled and construction has not started due to non-availability of land clearance and the amounts paid by the members are rightfully decided to be refunded.
4. Complainant without any further delay was constrained to cancel the agreement and demanded immediate refund vide email dated 07.01.2018. However, despite repeated reminders, money paid by the complainant was not refunded. Hence, the complaint.
5. Alleging deficiency of service and unfair trade practice, complainant has approached this Commission with prayer to refund Rs.4,00,000/- with interest @18% p.a; to pay Rs.2,00,000/- towards damages and compensation for the delay of five years to pay Rs.25,000/- towards the cost of litigation.
6. Despite efforts made to locate the OPs as the OPs were not traceable, substituted service was affected by way of publication. As none appeared on behalf of OPs despite the substituted service, OPs were proceeded exparte vide order dated 13.12.2022. Exparte evidence and written arguments have been filed on behalf of complainant.
7. While hearing the arguments, counsel for the complainant was asked to convince the Commission on the ground of limitation. Counsel for the complainant argued on the point of limitation and filed judgments in support of the case. Material placed on record is perused.
8. On perusal of the material placed before us, it is noted that complainant paid the initial booking amount for the membership of club on 17.01.2016 and was issued a membership letter on 24.08.2016. It came to the knowledge of the complainant that the construction of the club had not started till 07.01.2018 therefore the complainant requested for cancellation of the membership and refund on the even date. Numerous mails written on behalf of the complainant for refund till the year 2021 have been annexed with the complaint.
9. It is noted that the cause of action arose on 07.01.2018 and the complaint case is filed on 02.07.2021 which is beyond the statutory period for limitation. As per the statutory period complaint could have been filed before 07.01.2020 i.e before the commencement of the pandemic in March, 2020. It is settled position of law that correspondence between the parties do not extend the period of limitation.
Section 69 of CPA is reproduced as under –
Limitation period.
1. The District Commission, 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.
2. Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Commission, 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 District Commission or the State Commission or the National Commission, as the case may be, records its reasons for condoning such delay.
10. Complainant in support of her case has relied on Dharnidhar Mishra Vs State of Bihar (2024 INSC 415) and Anges D’Mellow Vs Canara Bank and Anr. (1992) 1 CPJ 335 (NC). The said cases are of no help to the complainant as facts of the cases mentioned above are distinguishable from the facts of the instant matter.
11. In light of the discussion above complaint is dismissed being barred by limitation.
