MS. NIPUR CHANDNA, MEMBER
ORDER
26.07.2024
1. The complainant has filed the present complaint alleging deficiency in service on the part of OP. In brief the facts of the complaint are that complainant booked 2 BHK flat, bearing no. C1 admeasuring 1037 sq.ft for a total consideration of Rs. 24,64,000/- in the upcoming project of OP namely Shikhar Heights, Bhowali District, Nainital.
2. It is further alleged by the complainant that he has opted under flexi payment plan w.e.f. 29.08.2012 by paying the booking amount of Rs. 2 Lakh followed by another part payment of Rs. 4,16,000/-. In total complainant paid sum of Rs. 6,16,000/- which is equivalent to 25% of the cost of the flat. The OP has assured the complainant that the possession of the flat would be handed over on 01.03.2015 failing which a compensation of Rs. 10,000/- p.m was to be paid by builder.
3. It is further alleged by the complainant that since the OP failed to complete the requisite developments and no intimation of the possession of the subject flat has been given, thus the balance 75% of the amount was neither been asked by the OP nor has been paid. The complainant approached OP to enquire about the status of the project through various chats and letter as well as through personal contacts and every time the officials of the OP assured to handover the possession very soon.
4. After continuous follow up OP issued cheque amounting to Rs. 6,16,000/- in favor of the complainant against the payment made in the year 2012, but the said cheque also got dishonored on 25.11.2019 with the remark insufficient fund. The complainant again approached OPs and request to refund the money deposited but besides bare assurance no steps have been taken to redress the grievance of the complainant. The complainant served legal notice dated 01.08.2023 upon the OPs thereby requesting them to refund the amount deposited along with interest but OP neither replied to the legal notice nor had complied the same. Being aggrieved by the conduct of the OPs complainant approached this Commission for redressal of his grievance.
5. The present complaint case is on admission stage. We have heard complainant on admission as well as limitation and have perused the record.
6. Perusal of the record shows that complainant has booked the flat in question with OP by paying a sum of Rs. 6,16,000/- on 29.08.2012. The OP assured the complainant to hand over the peaceful possession of the flat on 01.03.2015. Despite assurance OP failed to complete the project and as such complainant approached OP and requested for refund of the money. As per the averments made in the complaint OP issued cheque amounting to Rs. 6,16,000/- in favor of the complainant against the payment made in the year 2012, but the said cheque also got dishonored on 25.11.2019 with the remark insufficient fund, thereafter on several occasions complainant approached OP for refund of the money and also served legal notice dated 01.08.2023 but OP failed to refund the deposit amount. It is further stated that since the OP has neither handed over the possession of the flat nor had refunded the money, the cause of action is continuing one, hence, present complaint is well within limitation.
7. Let us peruse the relevant provision in respect of limitation provided under Consumer Protection Act, 2019.
As per section 69 of Consumer Protection Act, 2019: -
- The District Forum, 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.
- Notwithstanding anything contained in subsection (1). A complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, 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 National Commission , the State Commission, as the case may be records its reason form condoning such delay.
8. A perusal of the aforesaid statutory position reflects that the complaint should be preferred within a period of two years of the accrual of cause of action.
9. Admittedly, on 29.08.2012 complainant booked the flat in question with OP and despite assurance OP failed to handover the possession of the flat on 01.03.2015 as such on the request of the complainant OP issued cheque amounting to Rs. 6,16,000/- in favor of the complainant against the payment made in the year 2012, but the said cheque also got dishonored on 25.11.2019 with the remark insufficient fund, hence, we are of the considered opinion that the substantive cause of action for filing the present complaint arose on 25.11.2019. The complainant ought to have file the present complaint on or before 25.11.2021, which complainant failed to do. The complainant has filed the present complaint on 17.05.2024 i.e. after the delay of 02 years and 05 months that too without citing any cogent reason for such delay, the present complaint is therefore barred by limitation, hence, dismissed.
File be consigned to record room.
10. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving the application from the parties in the registry. Order be uploaded on www.confonet.nic.in.
Announced in open Commission on 26.07.2024.
Sanjay Kumar Nipur Chandna
President Member
