BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.485 of 2015

Date of Instt. 06.11.2015

Date of Decision: 23.01.2018

Kumkum Bhatia W/o Sh. Deepak Bhatia R/o 1256, Urban Estate, Phase-I, Jalandhar.

..........Complainant

Versus

1. Sahara City Homes Marketing and Sales Corporation/Sahara India Parivar, Sahara India Bhawan, 1-Kapurthala Complex, Lucknow Through its Director.

2. Sahara India Parivar, 40-Babbar Akali Market Central Town, Phagwara.

3. Sahara India Parivar, near SBI Main Branch Civil Lines, Jalandhar through its Manager.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Sh. Rajesh Khanna, Adv Counsel for the Complainant.

Sh. Rabinder Sharma, Adv and Sh. PMS Narang, Adv Counsel for the OP No.1 to 3.

Order

Karnail Singh (President)

1. The instant complaint presented by the complainant, wherein alleged that the OPs allured the complainant as well as other public by way of advertisement in different news papers, by stating that they were going to acquire 100 acre land at G.T. Road, Jalandhar near Jalandhar Bye Pass, on which number of houses, flats and commercial places will be constructed and further allured that like this they were going to acquire 100 acre land in other hundred cities for the said purpose. While coming to the said inducement, the complainant deposited a sum of Rs.4,00,000/-, vide different receipts issued by the OP for purchase of the house at Jalandhar. That the OPs promised to deliver possession of the property within 3 years.

2. That after waiting for 3 years, the complainant started approaching the OPs for her said property, but the OPs started dilly dialing the matter and even failed to point out the area acquired for construction of houses in Jalandhar, which has caused great anxiety to the complainant. As a last resort, the complainant started demanding back her said amount with interest, but the OP flatly refused to pay back the same and told that the complainant has only one choice i.e. she could take 75% amount out of the said amount that to on 12% interest and having no option as in need of money, she took Rs.3,00,000/- from her own amount and the OPs started deducting 12% from her remaining Rs.1,00,000/-, kept by the OPs. After about one year, one Sahara agent namely Kiran Kumar of Phagwara Branch approached the complainant and told/allured/induced that her entire balance amount would be lapsed on interest and offered for booking of 3 bed room flat at Banglore under one of the housing scheme of the OP and total cost quoted by him is Rs.46,97,000/- and already trapped the complainant as left no choice, but to agree for the same and she booked a flat of unit area measuring 135.95 sq. mt. Opposite Airport Banglore by depositing Rs.2,35,835/- and allotment letter dated 30.07.2007 bearing receipt number was also issued by the OPs in this regard, it was a 5% amount of the total amount of Rs.46,97,000/-. The OPs promised to deliver its possession within 3 years.

3. That the complainant is suffering for great financial, mental as well as physical harassment due to the callous act and on account of the deficiency in service, unfair trade practice and negligence of the OPs, which gave arise to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the deposited amount with interest @ 24% per annum or in the alternative to deliver the possession of the flat and also compensate the complainant for delay in delivering the possession or adequate compensation should be provided, so that she can purchase a flat of the size as agreed.

4. Notice of the complaint was given to the OPs and accordingly, all the OPs appeared and filed their joint written reply, whereby contested the complaint by taking preliminary objections that the present complaint of the complainant is not maintainable before this Forum because as per terms of Clause 20 of the terms and conditions that all the disputes were subject to arbitration. So, in case of any dispute between the company and the applicant regarding the said plot, then remedy with the each party is only to refer the matter to be an Arbitrator and as such, this Forum has no jurisdiction. It is further averred that the complainant does not fall within the definition of “Consumer” as defined in Section-2(d) of the 'Consumer Protection Act', 1986 and as such, the complaint is not maintainable and even the complainant has hopelessly failed to point out the deficiency in service or unfair trade practice and negligence on the part of the OP. It is further alleged that the complainant has no locus standi to file the present complaint as the complainant is himself guilty of inaction and violating the terms and conditions of its agreement with the OP and even the present complaint is an abuse of process of law because the same has been filed just to harass and humiliate the OP and further alleged that the present complaint is barred by the principle of estoppel, waiver and acquiescence and even there does not arise any cause of action in favour of the complainant and against the OP for filing the present complaint and even the complaint of the complainant is barred by limitation as per Act and further alleged that this Forum have no territorial jurisdiction to try and adjudicate upon this complaint. On merits, the factum in regard to deposit of amount by the complainant for purchase of the plot is not denied, but the other facts as narrated in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

5. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith documents Ex.C-1 to Ex.C-11 and then closed the evidence.

6. In order to rebut the evidence of the complainant, counsel for the OP No.1 to 3 tendered into evidence affidavit Ex.OPA alongwith documents Ex.OP-1 and Ex.OP-2 and closed the evidence.

7. We have heard the learned counsel for the respective parties and also scanned the case file very minutely with the able assistance of both the counsel for the parties.

8. We have considered the respective pleading of the both the parties and find that the OP has categorically took a plea that the complaint of the complainant is time barred and second legal objection raised by the OP is that this Forum has no territorial jurisdiction to decide the issue in dispute.

9. Before imparting, on merit, we prefer to take this legal issue firstly. So, for the concern of territorial jurisdiction of this Forum is concerned, the learned counsel for the OP could not able to satisfy this Forum, how this Forum is not having the territorial jurisdiction because the OP has Branch Office in Jalandhar and moreover, as per version of the complainant for the negotiation in regard to purchase of plot took place with the Branch Office at Jalandhar. So, from the above discussion, itself established that the version of the OP is not standing on a sound footing, therefore, the same is not acceptable.

10. So, for the concern of limitation is related regarding that the complainant has not mentioned in the complaint, when cause of action accrued to the complainant for filing the instant complaint, it is admitted fact that the consumer can file a consumer complaint within two years from the date of accrual of cause of action, so keeping in mind that there are two years period for filing the complaint before the Consumer Forum and then taken into consideration the case of the complainant as well as plea taken by the OPs that the complaint of the complainant is time barred. As per version of the complainant, as elaborated in the complaint, firstly the complainant deposited the amount as advance money for purchase of the said plot on 11.09.2003 and then categorically mentioned in the para No.4 of the complaint that the OPs promised to deliver possession of the property within 3 years. So, it means that the cause of action accrued to the complainant after 3 years of the date of deposit of the earnest money i.e. 11.09.2003, means on 11.09.2006 first time cause of action accrued to the complainant for filing the complaint and from that date, the complainant can file the complaint within two years i.e. upto 2008, but the complainant has filed the instant complaint in the year 2015, after 7 years. Then the complainant alleged in Para No.7 that she booked an other unit area in Banglore and deposited a sum of Rs.2,35,835/- on 30.07.2007 and then again asserted in para No.8 that the OPs promised to deliver its possession within 3 years, means the OP had to deliver the possession till 30.07.2010 and if possession not delivered, then a cause of action accrued to the complainant for filing the consumer complaint within two years from the date of accrual of the cause of action i.e. 30.07.2010 to 30.07.2012, but again the instant complaint filed by the complainant in the year 2015 after 5 years. So, from any angle, if we see the complaint of the complainant, the same is not within limitation as prescribed in the 'Consumer Protection Act'.

11. No doubt, the counsel for the complainant alleged that there is recurring cause of action accrued to the complainant because the possession has not been delivered and also referred the term and condition as mentioned on the reverse side of the copy of the receipt Ex.C-12 and accordingly, we have gone through the said receipt dated 30.07.2017 Ex.C-12 and find that there is no condition mentioned regarding delivery of the possession within 3 years, but it is categorically mentioned that the possession shall be given as mentioned in the allotment letter and after receipt of the final installment alongwith all other dues charges, but intentionally and willfully the complainant has not brought on the file the said allotment letter, even if in the absence of the said allotment letter if the pleading of the complainant itself explanatory that the period of the delivery of possession is given 3 years, then there is no need for further clarification of that plea taken by the complainant, so, accordingly, we accept the pleading of the complainant that the OP agreed to deliver the possession of the property within 3 years, so, accordingly, in view of the above detailed discussion, itself established that the complaint of the complainant is hopelessly time barred and accordingly, the same is not maintainable and therefore, the complaint of the complainant is dismissed with no order of cost. Parties will bear their own cost. The complaint could not be decided within stipulated time frame due to rush of work.

12. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

23.01.2018 Member President