Haryana

StateCommission

A/32/2016

TDI INFRASTRUCTURE PVT.LTD. - Complainant(s)

Versus

RAJ KUMARI - Opp.Party(s)

RECEIVED FROM NCDRC,NEW DELHI

17 Feb 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

Remand Appeal No : 32 of 2016

First Appeal No.       672 of 2012

Date of Institution:     30.05.2012

Date of Decision :     17.02.2016

 

TDI Infrastructure Private Limited formerly known as In Time Promoters Private Limited, 9 Kasturba Gandhi Marg, New Delhi-110001, through its authorized representative Sh. Chaman Lal.

                                      Appellants/Opposite Party

Versus

 

Raj Kumari w/o Sh. Dharam Pal Singh, Resident of House No.1069/7, Gali No.2, Jain Bagh Colony, Sonipat.

                                      Respondent/Complainant

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. B.M. Bedi, Judicial Member.

                                                                                                         

Present:               Shri Manoj Vashistha, Advocate for appellant.

                             Shri Kamal Mor, Advocate for respondent.

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

This appeal has been preferred against the order dated January 6^th, 2011, passed by District Consumer Disputes Redressal Forum, Sonipat (for short ‘the District Forum’) in Complaint No.575 of 2009.

2.      Brief facts of the case are that Raj Kumari-complainant/respondent, booked a residential plot admeasuring 350 square yards, with TDI Infrastructure Private Limited (hereinafter referred to as ‘the builder’)-Opposite Party. She paid Rs.5,95,000/- on 01.12.2005. The builder allotted plot No.K-69 in Block-K, TDI City, Kundli, District Sonipat. The complainant further paid the instalments besides External Development Charges (EDC) from time to time till 15.11.2006. In all the complainant paid Rs.24,46,500/- and the final instalment was to be paid at the time of possession. Thereafter, the builder supplied a copy of Plot Buyer’s Agreement (hereinafter referred to as ‘the agreement’) wherein the area of the plot was mentioned as 250 square yards and the rate was Rs.5250/- per square yard, that is, the total price of the plot was shown as Rs.13,12,500/- alongwith EDC at the rate of Rs.719/- per square yard and the plan for payment opted “B” making an aggregate to Rs.15,10,000/-. However, still the builder did not offer possession to the complainant, rather demanded Rs.3,35,868/- towards EDC. Legal notice dated 7.10.2009 was served upon the builder but to no avail. Forced by the circumstances, the complainant filed complaint under Section 12 of the Consumer Protection Act, 1986.

3.      The opposite party/builder, in its reply denied the averments made in the complaint. It was stated that the complainant had made the last payment on 06.12.2006. It was denied that there was no balance payable towards the complainant. The rate of plot to be Rs.5250/- per square yards and the area of the plot to be of 250 square yards, was denied. As per proposal letter dated 01.12.2005, the builder was under obligation to allot the plot within 12 months and there was no time stipulation for delivery of possession. The complainant was allotted plot within the agreed time. Despite notices issued, the complainant did not pay the balance amount and ultimately the builder vide letter dated 02.08.2010 cancelled the allotment. Denying any kind of deficiency in service, it was prayed that the complaint be dismissed.

4.      On appraisal of the pleadings and evidence of the parties, the District Forum accepted complaint directing the builder as under:-

“This Forum finds force in the arguments advanced by the learned counsel for the complainant and taking into consideration the same, this Forum hereby directs the respondent to allot plot in Block K measuring 350 Sq. yards to the complainant at the rate of Rs.7750/- per sq. yards, for which, the respondent can charge Rs.2,66,000/- (Rs.2712500/- tentative price of the plot minus Rs.2446500/- already lying deposited with the respondent) from the complainant. It is also directed that the complainant shall also pay the EDC charges of the Govt and also shall complete all the requisite and required formalities of the respondent. However, in the opinion of this Forum, definitely, the complainant is entitled to get interest on the amount of Rs.24,46,500/- from the date of  its payment. Accordingly, the respondent is also directed to pay interest at the rate of 09% per annum on the amount of Rs.24,46,500/- to the complainant w.e.f. 15.11.2006 till the actual physical possession of the plot is delivered to the complainant. The respondent is further liable to compensate the complainant to the tune of Rs.5000/- (Rs.five thousands) for rendering deficient services, for causing mental agony & harassment and further to pay a sum of Rs.5000/- (Rs.five thousands) under the head of litigation expenses.”

5.      The appeal is barred by 462 days, though the appellant/builder has mentioned the delay of 484 days.

6.      An application has been moved seeking condonation of delay mentioning that  the counsel who represented the appellant before the District Forum passed on all the papers to Shri Kuldeep Kumar, Advocate, based at Panchkula, for filing appeal before the State Commission, who intimated that he had filed the appeal and kept informing dates. It was only learnt when notice of execution was received that no appeal was preferred.

7.      No affidavit of Shri Kuldeep Kumar, Advocate, to whom papers had been handed over for filing appeal, has been filed. Even affidavit of Advocate, who represented the appellant before the District Forum, who was stated to have handed over papers to Shri Kuldeep Kumar, Advocate, has not been filed. The complaint was decided by the District Forum on 06.01.2010 while appeal was filed on 30.05.2012.

8.      The appellant is company. They must have passed resolution for taking decision to file appeal, besides having signed the documents etc. A perusal of the file shows that the grounds of appeal were drawn on 18.05.2012 and the Power of Attorney was signed in favour of lawyer on 16.05.2012. Therefore, it appears that a false defence has been set up in the application for the purpose of gaining sympathy in seeking condonation of delay in filing of appeal. Delay can only be condoned in case of bonafide applicant and no such discretion can be exercised in favour of the applicant taking false plea.

9.      Hon’ble Supreme Court in Bikram Dass Versus Financial Commissioner and others, AIR 1977 Supreme Court 1221 has held as under:-

“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case law has grown around S.5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his right must explain every day’s delay.”

10.    In Pundlik Jalam Patil (dead) by LRS vs. Executive Engineer, Jalgaon Medium Project and Another, (2008) 17 SC 448, Hon’ble Supreme Court held as under:-

“…The evidence on record suggests neglect of its own right for long time in preferring appeals. The court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and “do not slumber over their rights”.

11.    In the case in hand, the appellant has taken casual approach and have not proved to be a prudent litigant. The plea taken by the appellant is not believable. A valuable right has accrued to the other party/respondent/complainant. Under the facts and circumstances of the case, no case for condonation of delay of 462 days in filing of the appeal is made out.  Hence, the application for condonation of delay is dismissed.

12.    Even on merits, undisputedly, the respondent/complainant had booked a residential plot admeasuring 350 square yards on 01.12.2005. The total cost of the plot was Rs.27,12,500/- inclusive of EDC etc. The complainant deposited total sum of Rs.24,46,500/- upto 06.12.2006. The builder not handing over possession, the complainant came up with complaint under Section 12 of the Consumer Protection Act, 1986, seeking direction to the builder to hand over possession and to pay compensation.

13.    The opposite parties/builder, contested complaint admitting the booking of the plot, payment made and total price etc. The builder failing to deliver possession, was denied. It was stated that as per letter dated 01.12.2005, the possession was to be offered within 12 months and the allotment was made on 06.12.2006; however, the total payment not being made, it was cancelled. 

14.    As per own admission of the builder, the possession was to be delivered within 12 months. The date of booking is not disputed as 01.12.2005. The builder has not delivered possession even till date. The complaint was filed on 15.12.2009. The District Forum, thus, rightly directed that since the complainant has paid the amount of Rs.24,46,500/- out of the total cost of Rs.27,12,500/-, the complainant would pay the balance amount besides EDC etc and complete the formalities. The District Forum has directed to pay interest @ 9% per annum from 15.11.2006 till the actual physical possession is delivered to the complainant, which we feel is in conformity with the agreement executed between the parties. Therefore, even on merits no case for interference is made out.

15.    In view of the above, the appeal fails and is hereby dismissed on both the grounds, that is, being barred by limitation as well as on merits.

 

Announced: 17.02.2016

(B.M. Bedi) Judicial Member

(Nawab Singh) President

 

CL