Haryana

Panchkula

CC/179/2021

AJAY NARAYAN GOYAL. - Complainant(s)

Versus

SAHARA CITY HOMES MARKETING & SALES CORPORATION . - Opp.Party(s)

RAHUL BEDI

01 Apr 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA.

                                                                       

Consumer Complaint No	:	179 of 2021
Date of Institution	:	12.03.2021
Date of Decision	:	01.04.2021

                                                                                         

 

Ajay Narayan Goyal, R/o H.No.31, Sector-21, Panchkula (Haryana)

 

                                                                                                ….Complainant

Versus

1. Sahara City Homes Marketing & Sales Corporation S.C.F.40-41, Phase-5, Mohali-160059, Punjab through its authorized representative or its director.
2. Sahara City Homes Marketing & Sales Corporation Comond Office Sahara India Bhawan, 1, Kapoorthala Complex, Lukhnow-226024 through its authorized representative or its director.

 

                                                                              ….Opposite Parties

COMPLAINT UNDER SECTION 35  OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:                   Sh.Satpal, President.

                               Dr.Pawan Kumar Saini, Member.

                               Dr.Sushma Garg, Member.

 

 

For the Parties:      Sh. Rahul Bedi, Advocate, counsel for the complainant.                      

ORDER

(Satpal, President)

1.                  Today the case is fixed for consideration on its admissibility. Briefly stated, the facts of the case are that the OPs floated a residential group housing scheme in the name of Sahara Rajat Yojna scheme in Mohali in the year 2005, in response to which, the complainant deposited an amount of Rs.10,004/- on 05.12.2005 vide receipt no.010210912969. It is alleged that the OPs did not start the construction at site even after receiving a huge amount from the complainant. The complainant visited office of OP No.1 numerous times where he was assured by the OP No.1 that the construction work is still going on and the OPs are not in a position to deliver the possession. It is further alleged that the complainant has written various letters dated 27.07.2018, 28.08.2018 and 06.12.2018 followed by legal notice dated 18.02.2021 seeking the refund of his deposited amount but to no avail. Hence the present complaint.

2.                  The main grouse of the complainant is that the OPs have failed to abide by the terms and conditions of the agreement, wherein it was stipulated that the residential space would be allotted to him and thereafter, possession of the same would be delivered. Reliance has been placed upon the sale receipt no. 010210912969 dated 05.12.2005.

3.                  We have perused the said receipt which does not indicate in any manner that the amount of Rs.10,004/- as alleged was paid towards any scheme pertaining to the allotment of  a residential space. On the contrary, the receipt does indicate that the amount was invested by the complainant in Sahara Rajat Yojana vide receipt no.010210912969 dated 05.12.2005. For the sake of clarity and convenience, the terms and conditions mentioned on the said receipt are reproduced as under:

Note:-1. The terms and conditions of the scheme like period, rate of interest/Bonus etc. are mentioned in the certificate/pass-book.

2.         This receipt shall be treated as provisional receipt in case of payment by the investor/depositor in cheque/ draft. A fresh receipt shall be issued in lieu of this receipt after realizing of cheque/draft.

3.         Please receive Rs.20,000/- and above by way of account payee cheque/draft.

                       4.         Please preserve this receipt for future reference.

4.                  The above terms and conditions makes it crystal clear that an amount of Rs.10,000/- was not paid towards the allotment of any residential space; rather the terms and conditions mentioned on the said receipt negates the version of the complainant that the said amount was paid to the OPs towards the allotment of the residential space. Despite our asking, the Builder Buyer Agreement, if any, as alleged in the complaint, has not been produced before us.

5.       A complaint, before it is admitted for adjudication, is required to qualify, inter alia, various parameters, which may be enumerated as below;

1. That the complainant falls under the category of a consumer and that there exist a consumer dispute.
2. That the complaint has been instituted within the period of limitation as required under Section 69 (1) of CP Act,2019.
3. That the relief claimed do not exceed the pecuniary jurisdiction of this Forum.
4. That this Forum has territorial jurisdiction to entertain and decide the present complaint.

6.                  With regard to the filing of a complaint within the limitation period, it is alleged that the various letters i.e. dated 27.07.2018, 28.08.2018 and  06.12.2018  followed by legal notice dated 18.02.2021 were sent to the OPs and thus, the complaint has been filed within the prescribed period of limitation. It is also contended that the cause of action is of continuing nature. As per the Section 69(1) of CP Act, a consumer complaint can be instituted within a period of two years from the date when the cause of action has arisen. In the present case, an amount was deposited on 05.12.2005 and thus, the period of limitation for filing of the complaint, if any, was upto 04.12.2007. As per well settled legal proposition, the period of limitation cannot be stretched further by writing letters and sending legal notice. No reasonable reason has been furnished, which prevented the complainant to file the complaint within the prescribed period. Moreover, the complainant has preferred not to file an application seeking condonation of delay. The last plea taken by the complainant that OPs have not responded to the legal notice dated 18.02.2021 is also of no avail to him in view of the well settled legal proposition that the period of limitation is not liable to be extended on the basis of exchange of letters between the parties. Further, as discussed above, the amount of Rs.1,0004/- was not paid by the complainant in any residential scheme and thus, the cause of action is not of continuing nature in this case.

7.                  In support of above discussion, we may, safely, rely upon the order dated 16.12.2016 passed by Delhi State Consumer Disputes Redressal forum Delhi in 1^st appeal No.460 of 2010 titled as “ Delhi Development Authority Versus Pawan Sethi” wherein it has been held as under;

Section 24A-Limitation- Held-It is well established that the exchange of letters between the parties does not extend the period of limitation under the Act.

                     The Hon’ble Delhi State Consumer Disputes Redressal Forum Delhi, while deciding the case supra, has relied upon several case law which may be mentioned as under:-

1.      Ashok Kumar Sainia vs. Delhi Development Authority, FA No. 183/2007 decided on 21.03.2013 by the National Commission.
2.     Himachal Futuristic Communications Ltd. Vs. K.C. Aggarwal, IV (2013) CPJ 567 (NC)
3.     Haryana Urban Development Authority Vs. Tej Refrigeration Industries Ltd. decided on 16.07.2013.
4.     Harbhjan Sharma Vs. Haryana Urban Development Authority & Anr. 1 (2015) CPJ 672 (NC) wherein the National Commission        took the similar view. The relevant portion of judgment is reproduced as under;

Mere writing of letters to the respondent authority and waiting for reply for unduly long time would not extend the period of limitation. It is well settled position of law that the requirement of limitation under Section 24A(1) is a mandatory requirement and the Consumer Forum  shall not admit a complaint unless it is filed within two years of date on which the cause of action has arisen.

(V)              State Bank of India Vs. B.S. Agricultural Industries, 2009(2) CLT Page 541,decided by the Hon’ble Apex Court wherein it has been held as under;

                               “Limitation –Held that provisions of Section 24A is pre-emptor 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 cause of action-As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has filed within two years from the date of accrual of cause and delay condoned for the reasons recorded in writing- if the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality-The aggrieved party would be entitled to have such order set-aside.

                     “Consumer Protection Act, 1986, Section 24A-Limitation-Cause of Action to the complainant accrued on June 7, 1994 and complaint filed on 05.05.1997-Neither application for condonation of delay nor any sufficient cause shown-The question of condonation of delay in filing the complaint does not arise-complaint barred by time and ought to have been dismissed as such-The appeal allowed-The orders of Foras below liable to be set-aside and complaint dismissed as time-barred”

          Apart from above, the Hon’ble Apex Court decided the case titled as Kandimalla Rahavaiah & Co. Vs. National Insurance Co. Ltd. & Anr. III (2009) CPJ 75 (SC) on similar lines wherein it is held as under;

Limitation-Time Barred-Insurance Claim-Fire in tobacco godown took place on 22/23 March, 1988-Intimation to Bank in whose favour stock hypothecated, given on 23 March itself-Insurance Company informed in November, 1992-Period of limitation expired-Section 24A-Consumer Protection Act bars Consumer For a from admitting complaint after two years from date of cause of action-Complaint before Consumer Forum filed in October 1997, dismissed as time-barred-Civil appeal filed-Contention, denial of insurance company in honouring claim received in Marc-Limitation period will commence from the date-Contention not acceptable-Cause of action not continuous till denial of claim-Filing of claim by Bank in 1988 in no way helped complainant-Insurance Company’s reply to legal notice in March, 1996, declining to issue claim forms, not resulted in extending limitation period. Complaint filed in 1997, without application of condonation of delay manifestly barred by limitation-Dismissal of complaint justified-No interference requires in appeal.

8.                  In view of the aforementioned factual as well as legal position it may, safely, be concluded that the present complaint has been preferred beyond the prescribed period of limitation and the same is accordingly dismissed in limini with liberty to the complainant to approach the competent authority/court if he is so advised. A copy of this order be sent to the complainant free of costs and file be consigned to the record room after due compliance.

Announced on: 01.04.2021

 

Dr.Sushma Garg               Dr.Pawan Kumar Saini                      Satpal

                Member                            Member                         President

 

Note:            Each and every page of this order has been duly signed by me.

 

                                                   (Satpal)

                                                     President