Present (1) Nisha Nath Ojha,
District & Sessions Judge (Retd.) President
(2) Smt. Karishma Mandal,
Member
Date of Order : 31.07.2017
Nisha Nath Ojha
- In the instant case the Complainant has sought for following reliefs against the Opposite party:-
- To pay the Rs. 2,06,000/- along with interest @ 14% from the date of payment till realization.
- To pay Rs. 1,00,000/- to the complainant as compensation.
- To pay Rs. 25,000/- as litigation cost.
- Brief facts of the case which led to the filing of complaint are as follows:-
The complainant has asserted that he had paid Rs. 50,000/- as an advance to opposite parties against shop no. 28/29 on ground floor of Raj Tower for which the complainant had paid Rs. 1,000/- + 1,000/- to opposite parties between 15.12.1990 to 04.05.1991 as will appear from annexure – 2. The rate of the said shop was fixed by opposite parties as Rs. 40,000/- for allotting the said shop no. 28/29 to the complainant. As per agreement/contract the aforesaid shop was to be allotted in the name of Pankaj Kumar and Rupesh Kumar.
It has been further asserted that as per agreement the aforesaid shop was to be allotted within 3 years from the date of final payment. As per agreement the rest amount of Rs. 3,50,000/- was required to be paid in installments and the complainant had paid Rs. 2,06,000/- on different dates to opposite parties against the shop no. 28/29 for which opposite parties have issued receipt as will appear from annexure – 3 series.
It has been further asserted by the complainant that as per agreement opposite parties did not started project and despite passing of 3½ years the project work was not started. The opposite parties continued to give false assurance to complainant as the work did not started as per agreement even despite request by the complainant then complainant stopped payment of the rest amount. Thereafter the complainant suddenly received an allotment letter through post issued by opposite parties. In this letter it has been stated that the construction work has been started and the complainant has been allotted shop no. 28/29 on the ground floor.
It is surprising that in this allotment letter the date of allotment has not been mentioned but there was a reference of only payment of Rs. 50,000/- only, this was done due to bad and malafide intention for which the complainant complained to opposite parties who stated not to worry because these are the matter of record. The aforesaid allotment letter has been annexed as annexure – 4.
The complainant has further asserted that as the original agreement paper stood misplaced or lost by the complainant hence he requested opposite to agreement but no action has taken by opposite parties in this regard.
The grievance of the complainant is that despite aforementioned circumstances, the opposite parties neither refunded the deposited amount to the complainant nor the construction has been completed and the complainant wants to withdraw his money.
A preliminary objection has been filed on behalf of opposite parties stating there in that this case is hopelessly barred by limitation because as per complainant itself the cause of action has been arisen in the year 1990 and continued till year 1993 but this case has been filed after 19 years the complainant awoke from the deep sleep and this case has been filed in 2012.
It has been further asserted that it is a settled law that mere communication letters by the parties does not extend the limitation period hence the limitation expired in 1995 itself.
It has been further asserted by opposite parties that the complainant has not shown any relationship with one Pankaj Kumar son of Late Ramji Prasad on whose behalf a legal notice containing annexure – 1 has been served upon the opposite parties.
It has been stated that if the complainant has not paid the final payment where there is deficiency.
From the record it appears that after hearing the parties this forum has dismissed the case vide order dated 14.08.2015 passed in complaint case no. 221 of 2012 on the ground of limitation as well as in absence of any deed of agreement paper. The aforesaid order dated 14.08.2015 passed in this case by this forum was challenged by the complainant before Hon’ble State Consumer Dispute Redressal Commission by filing an appeal which was numbered as appeal case no. 254/15 ( Rupesh Kumar Vrs. Director Raj Engeon Project (I) Ltd.). The aforesaid appeal was heard by Hon’ble State Consumer Dispute Redressal Commission and the Hon’ble Commission vide order dated 01.06.2016 has been pleased to allow the appeal after setting a side the impugned order dated 14.08.2015 passed in this case. The Hon’ble Commission remanded this case to this District Forum “ for fresh hearing, for taking evidence if any and for passing a reasoned order within three months from the date of receipt of this order.”
The learned counsel for the complainant has submitted that in the light of finding of Hon’ble Commission containing in Para – 7 of the appeal order dated 01.06.2016 referred above, this forum has no scope but to allow the complaint case.
On behalf of opposite parties the fact asserted in the preliminary objection has been repeated.
No any evidence has been filed by either of the parties.
Heard the learned counsel for the parties.
As stated above this forum had earlier dismissed the complaint case of the complainant on two grounds, firstly hopelessly barred by limitation because the cause of action continued from 1990 to 1993 but this case has been filed on 05.06.2012 i.e. after laps of 19 years of the cause of action and the second ground was that no copy of the agreement has been annexed with the complaint case. The Hon’ble Commission in Para – 7 of the appellant order have been pleased to record the following findings, “having considered the submissions of the parties and on perusal of the order passed by the District Forum as also the material available on record, it appears that the District Forum has not considered all facts in right perspective. It is undisputed fact that the appellant deposited Rs. 2,06,000/- to the respondent for allotment of a shop on the ground floor of “ Raj Tower” during 1990 to 1993 and the respondent has not allotted the shop and not refunded this amount to the appellant till now. The complaint has been dismissed on two grounds. It is hopelessly barred by limitation as the cause of action arose in 1993. The complaint was to be filed in 1995 but the complaint is filed in 2012. So, it is not maintainable. In our view, the respondent opposite party has replied the legal notice issued by the appellant on 29.05.2012, which is on record. Hence, the cause of action continued till 29.05.2012 and the complaint has been filed in June 2012. Hence, there is no delay and the complaint is maintainable. Another point for dismissal of the complaint is devoid of merit as the agreement paper was not produced before the Forum. The appellant has not been given opportunity to reply the preliminary objection of the opposite party respondent. Thus, in our view, the case needs re – hearing. Hence, the appeal is allowed to set aside the District Forum order. It is remanded to District Forum for fresh hearing for taking evidence if any and for passing a reasoned order within three months from receipt of this order.”
From the aforementioned finding of the Commission it is crystal clear that the submission of the learned counsel has been upheld in toto and as such we have no option but to allow this case.
Hence we direct the opposite parties to refund Rs. 2,06,000/- to the complainant 14% interest from the date of original payment till its realization within the period of two months from the date of receipt of this order or certified copy of this order.
Opposite parties are further directed to pay Rs. 25,000/- to the complainant by way of compensation and litigation costs within the period of two months.
Accordingly this complaint case stands allowed to the extent referred above.
Member President
