Punjab

Ludhiana

CC/14/663

Shashi Gupta - Complainant(s)

Versus

Omaxe Ltd - Opp.Party(s)

Narinder Chhibba

21 Sep 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Complaint case No. :   663 of 19.09.2014

Date of order            :   21.09.2015

 

1.Shashi Gupta aged 55 years w/o Sh.Subhash Gupta

2.Mayank Gupta aged 26 years son of Sh.Subhash Gupta

   Residents of 65-I, Sarabha Nagar, Ludhiana.

….. Complainants.

Versus

1.Omaxe Ltd. through its authorized signatory having its Regd. Office at Royal Residency, Opp. Sterling Resort, Pakhowal Road, Ludhiana.

2.Omaxe Ltd, through its authorized signatory, 7, Local Shopping Centre, Kalkaji, New Delhi-110019.

..…Opposite parties.

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.SAT PAUL GARG, MEMBER

MS.BABITA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainants                    :         Sh.Sukhjinder Singh, Advocate.

For Ops                                  :         Sh. Nitin Kapila, Advocate.

 

PER G.K DHIR, PRESIDENT

 

1.                          Application filed by Ops for rejection of complaint by claiming that as per contents of complaint, Ops vide letter dated 23.7.2010 cancelled unit No.502 RS1 at Pakhowal Road, Ludhiana, which reflects that complainants were aware of the cancellation of the unit. Despite that they did not file  complaint within the statutory period of 2 years. Long silence on the part of complainants itself reflect their consent to the cancellation. Subject matter of the complaint is the flat in project of Omaxe Royal Residency in Ludhiana.

2.                In reply submitted by complainant, it is claimed that application is not tenable because complaint cannot be dismissed in the alleged manner. Sole purpose of filing the application is to get benefit by the Ops of their own wrongs. The averments made in the complaint are matter of record, but it is denied that complainants were having knowledge of cancellation of unit. Other allegation qua non submission of complaint within statutory period also denied.

3.                Arguments on this application were heard.

4.                It is vehemently contended by the counsel for the complainants Sh.Sukhjinder Singh, Advocate that initially allotment of the Flat No.402 in Tower RS2 of 4^th Floor Block II was done, but subsequently, the number unilaterally changed to 502 in Tower RS-1. That change was ordered without notice and as such, it is contended that Ops(applicants) violated the terms and conditions of allotment letter. Copy of allotment letter bearing No.OL/ORR/39 is thereon record to show that initially apartment No.402-Royal Sherwood-2 at The Royal Residency Ludhiana was allotted to the complainants. Even in receipt dated 22.2.2008 produced by the complainant mention of the same alleged number is made. Even if that be the position, despite that through letter dated 23.7.2010, it was disclosed to complainant that his allotment of unit No.502 in Tower RS-1 in Omaxe Royal Residency, Ludhiana has been cancelled due to persistent default in payments. Amount of Rs.7,78,240/- paid towards booking has been signified through this letter of 23.7.2010 to be forfeited according to the terms of the allotment letter. Vide letter dated 5.7.2010, complainant was intimated by the Ops qua his failure to remit the installments amount, resulting in jeopardization of the completion of the project.  Complainant was called upon through this letter dated 5.7.2010 to pay sum of Rs.71,80,661.60P with interest within 10 days of receipt of letter, failing which, allotment shall stand cancelled. Even vide letter dated 16.3.2010, complainant was intimated about the proposed levy of service tax on the activity of construction of property. Reference of allotment of apartment No.502 in Royal Sherwood-1 Tower in Omaxe Royal Residency, Ludhiana was specifically made in this letter dated 16.3.2010. Reminder for intimation of due installments was also sent through letter dated 16.3.2010 by mentioning the number of unit as 502 in Royal Sherwood-1. Similar reminders on 14.12.2009, 8.10.2009 and 28.4.2009 were sent to complainant by mentioning number of unit as 502. Even letter dated 28.4.2009 produced to show that complainant was intimated about changes in the tentative allotment plan. Through this letter dated 28.4.2009, complainant was intimated that in lieu of their previous allotted flat bearing No.402 in 4^th Floor in Royal Sherwood-2 Tower, he was allotted flat bearing No.502 in 5^th Floor Royal Sherwood-1 Tower as per tentative allotment plan. So, this correspondence produced on record shows that complainant was intimated of the change of the number of allotted unit for the first time through letter dated 28.4.2009. However, in the earlier reminders of 23.9.2008, 13.8.2008 and 10.4.2008, number of the alleged unit was mentioned as 402. Thus, unilateral change of the allotted flat number took place w.e.f.28.4.2009. Intimation of this change was given to the complainant through subsequent reminders of dates 28.4.2009, 8.10.209, 14.10.2009, 16.3.2010, 5.7.2010 and finally through letter of 23.7.2010.

5.                As the installments amount of changed unit No.502 not paid and that is why letter dated 23.7.2010 was issued for cancelling the allotment. It is contended by counsel for the complainant that reminders/letters above referred were never received by the complainant and as such, complainant was kept in dark in unilaterally changing  the number of the apartment. However, after going through paras no.3 and 5 of complaint, it is made out that complainant got the knowledge of change of flat no.402 to 502 and of subsequent cancellation thereof through letter dated 23.7.2010. It is on account of this that mention  of  this  letter  dated  23.7.2010 has been specifically made in the complaint. Even if the change of the allotment of the unit was unilateral, despite that the complainant was intimated of the change of the subsequent cancellation of the allotment through letter dated 23.7.2010 is a fact known to the complainant as revealed by contents of paras no.3 and 5 of the complaint itself.

6.                Though, it is contended by counsel for the complainant that complainant was not aware of the letter of cancellation dated 23.7.2010, but it is not mentioned in the complaint as to on which date, the complainant  got the   knowledge of letter dated 23.7.2010 qua cancellation of unit No.502. It is for the complainant to show that complaint has been filed by him within limitation and as such for proving the same, the complainant must have disclosed the date, on which he got the knowledge of issue of letter dated 23.7.2010 qua cancellation of unit No.502. No such date of knowledge given in the complaint and as such virtually complaint has been filed by suppressing facts in that respect. Undated letter sent by the complainants to Ops produced to show that they called upon Ops to handover the possession of the original booked flat bearing No.402 in Tower RS-2. Though, registered AD dated 16.8.2014 was sent by the complainant to Ops through counsel for claiming that unilateral change of allotment of flat is illegal, but on back of this letter, photo stat copies of postal receipts of date 25.8.2010 are printed to show dispatch of some letters to the Ops by the complainant. Date 16.8.2014 has cutting over the registered AD. Below word 2014, 2010 in print are legible and as such, the same show as if protest regarding change of allotted flat submitted by complainant for the first time in August, 2010. In view of that it is obvious that material produced on record shows as if cancellation of the changed allotted unit even took place through letter dated 23.7.2010 qua which the complainant got the knowledge in August, 2010 itself. As claim of the complainant for possession of flat no.402 virtually was rejected by Ops through letter dated 23.7.2010 and as such, complaint could have been filed within two years from that rejection. However, this complaint has been filed on 19.9.2014 i.e.after 4 years of issue of cancellation letter dated 23.7.2010.

7.                As per law laid down in case Luxmi Bai and others vs. ICICI Lombard General Insurance Company Limited and others-III(2011)CPJ-507(N.C.) in case, a claim is rejected by the respondent/insurance company, then cause of action arises from the date of rejection. As rejection of the claim of complainant in case before us took place on issue of letter dated 23.7.2010 and as such, cause of action accrued to the complainant w.e.f.24.7.2010.

8.                Question of limitation is a question of law, it can be raised any stage of pending proceedings. In view of Section 24-A of The Consumer Protection Act, 1986, it is obligatory for the Forum to decide the question of limitation. Before dismissing the complaint as time barred, an opportunity of hearing has to be given to the complainant, who can seek condonation of delay under section 24-A(2) of The Consumer Protection Act, 1986 by showing that there is sufficient cause for not filing the complaint within the prescribed time. That opportunity of hearing was given to the complainant in this case, but despite that he failed to mention as to       on which date he got the knowledge of cancellation letter dated 23.7.2010. No application for amendment of complaint was filed in that respect and nor mention   of date of knowledge made in the reply submitted by the complainant to the application under Section 11 of The Consumer Protection Act, 1986 through which rejection of complaint sought. Even no application for condonation of delay has been filed and as such virtually complainant failed to show the sufficiency of cause for not filing the complaint within prescribed period of 2 years on accrual of cause of action.

9.                As per law laid down in case SAGO Packing Pvt. Ltd. vs. New India Insurance Company Limited and others-III(2015)CPJ-5B(CN)(WB), cause of action arises with repudiation of claim and thereafter, limitation period cannot be kept on lingering by submission of fresh representation. Making of representation cannot stop limitation from running as per this cited case. In view of this fresh period of limitation not to start by submission of representation through registered letter dated 16.8.2014 sent by the complainant to Ops through counsel. Rather this registered letter even sent by the complainant beyond prescribed period of 2 years of filing complaint and as such, this registered notice does not extend the period of limitation.

10.              As complaint has not been filed within two years of accrual of cause of action and sufficiency of cause for not filing complaint within limitation not shown and as such, complaint being barred by limitation merits dismissal in view of Section 24-A of The Consumer Protection Act, 1986.

11.              So, after acceptance of application for rejection of complaint filed by Ops, complaint is ordered to be dismissed being barred by limitation. However, complainants will be at liberty to approach Civil Court or any other Forum as per rules for Redressal of their grievance. Copies of orders be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

(Babita)               (Sat Paul Garg)                                    (G.K.Dhir)

Member               Member                                                President

Announced in Open Forum

On 21.09.2015

Gurpreet Sharma