HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This consumer complaint case has been filed by the complainant under section 34 & 35 of the Consumer Protection Act, 2019 ( in short, ‘the Act’) alleging deficiency in service and unfair trade practice adopted by the opposite parties No. 1,2 & 4 valued at Rs.71,48,000/- ( Rupees seventy one lakh and forty eight thousand) only. The complainant has filed this consumer complaint case praying for the following reliefs :-

“i) Handover the physical possession of the said flat making it habitable by completing all interior and exterior works of the flat by executing the registered Deed of Conveyance in favour of  complainant.

ii) Handover and / or supply the completion certificate of the said project to the complainant.

iii) Refund a sum of Rs.29,22,782/- (Rupees Twenty Nine Lakhs Twenty Two Thousand Seven Hundred Eighty Two) only towards earnest money paid by the complainant to the opposite parties alongwith interest

iv) Pay a sum of Rs.50,000/- (Rupees Fifty Thousand only) as the cost of the legal expenses tentatively incurred by the complainant.

v) Pay a sum of Rs.7,00,000/-  (Rupees Seven Lakhs only) for compensation.

vi) Refund the earnest money along with interest @18% per annum which will be calculated from the date of receiving of the said money by the opposite party

AND

vii) During the pendency of the instant complaint case interim order may kindly be passed for maintaining status quo as on this date so that the said flat may not be encumbered with anywise by the opposite parties and/ or restraining the opposite parties from annihilating the said plot of land and from selling to third party

viii) Ad interim orders in terms of the prayer (v) above.

ix) And to pass further order or orders as Your Lordship may deem fit and proper. “

2. Heard the Learned Advocate appearing for the complainant at length and in full on the point of admission.

3. We have carefully perused the complaint case wherefrom it appears to us that the opposite parties No. 1,2 & 4 are the land owners / sellers and developers. The complainant and the opposite parties entered into an agreement for sale on 07.09.2013 and an agreement for sale was executed between the parties. As per the agreement for sale made by and between the complainant and the opposite parties, the opposite parties are supposed to give a self contained residential flat at Unit No. 5B on the 4^th floor in Block No. 14 having an aggregate super built up area (SBA) of 1712 sq. ft. be the same and little or more or less, together with one car parking space on the stilt floor together with the amenities and facilities attached thereto in the Project of the opposite parties namely “Sanjeevan Orchards II” for a total consideration of Rs.68,48,000/- (Rupees sixty eight lakh and forty eight thousand) only for the flat and Rs.3,00,000/- (Rupees three lakh) only for garage, total amounting to Rs.71,48,000/- (Seventy one lakh and forty eight thousand) only within a stipulated period of thirty months from the date of agreement for sale with a grace period of six months thereafter as assured in page No. 4 under the heading “completion and delivery of possession” of the said agreement for sale i.e. within March, 2016.

4. Further case of the complainant is that the opposite parties have not only failed to act according to the contractual obligation but have also engaged in fraudulent trade practice, and even after 10 years, the project site is partially vacant and only few work has been done. The opposite parties have clearly failed to hand over the physical possession of the said flat by executing the registered deed of conveyance after the expiry of the stipulated time along with the grace period. Further case of the complainant is that the complainant has visited the  offices of the opposite parties and the project site on several occasions but the opposite parties have always resorted concocted stories and avoided disclosing the actual fate of the project and estimated time of the completion of the project for completion of construction.

5. Further case of the complainant is that having no other alternative the complainant sent notice dated 30.05.2017 to the opposite parties claiming the refund of earnest money along with interest, which was duly served to the opposite parties. But no step has been taken by the opposite parties to refund money in favour of the complainant till date. The complainant has clearly and categorically stated in para no. 16 of the petition of complaint that cause of action at first arose on 07.09.2013 i.e the date of execution of the agreement for sale of a self contained flat as mentioned in the schedule to the petition of complaint.  The cause of action is still subsisting and/ or continuing and again cause of action arose on and from 30.05.2017, the date on which the notice was sent by the complainant to the opposite parties.

6. This complaint case was filed on 15.06.2023 which reveals that after six years from the date of serving notice to the opposite parties. The complainant has filed this complaint before this Commission which is not legally permitted in view of the Consumer Protection Act, 2019. Section 69 of the Consumer Protection Act, 2019 runs as follows :-

“69. (1) The District Commission, 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.

(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Commission, 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 District Commission or the State Commission or the National Commission, as the case may be, records its reasons for condoning such delay.”

7. From the said aforesaid provision it appears that the provision is peremptory in nature, requiring the Consumer Commission to examine before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Commission, however, for the reasons to be recorded in writing may condone the delay in filing the complaint, if sufficient cause is shown.

8. On careful perusal of the record it appears to us that this complaint has not been filed in time. There is a delay in filing the petition of complaint by the complainant. Moreover, it appears to us that this complaint is not accompanied with a separate petition praying for condonation of delay.

9. At the time of hearing on the point of admission, the Learned Advocate appearing for the complainant has submitted that on 30.05.2017, the complainant sent legal notice to the opposite parties for refund of the earnest money. But the opposite parties did not refund the earnest money, did not hand over the possession of the flat and did not register the deed of sale as per agreement dated 07.09.2013. We fail to accept the contention made by the Lawyer appearing for the complainant.

10. The Hon’ble Supreme Court in State of Tripura & Ors. Vs. Arabinda Chakraborty & Ors., reported at (2014) 6 SCC 460 has held the following :-

“10. In our opinion, the suit was hopelessly barred by law of limitation. Simply by making a representation, when there is no statutory provision or there is no statutory appeal provided, the period of limitation would not get extended. The law does not permit extension of period of limitation by mere filing of a representation. A person may go on making representations for years and in such an event the period of limitation would not commence from the date on which the last representation is decided.........”

11. The Hon’ble National Commission in Mahesh Nensi Shah Vs. Oriental Insurance Co. Ltd. reported at III (2006) CPJ 414 NC, has observed that :-

“no amount of correspondence between the parties can extend the period of limitation.”

12. In the present case also the complaint case has been filed after almost six years from the date of serving legal notice to the opposite parties. Even though the complainants have made several requests to the opposite parties but the same cannot be considered as the accrual of fresh cause of action.

13. We find that the complaint is not accompanied with a separate petition praying for condonation of delay. Then, it was the duty of the complainants to approach before the Court of Law by filing a complaint within the stipulated period of limitation i.e. within two years from the date of cause of action. But without doing so, the complainant filed this complaint before this Commission after a long six years from the date of serving notice to the opposite parties without filing any separate petition praying for condonation of delay which is contrary to the provision of section 69 of the Consumer Protection Act, 2019. Learned Lawyer appearing for the complainant has referred two judgments passed by the Hon’ble National Commission and the Hon’ble Apex Court. However, reliance on these two judgments in the adjudication of complaint, facts being at variance, would be misplaced.

14. In the result, the consumer complaint case being No. CC/83/2023 is hereby dismissed being barred by limitation and without being admitted.

15. The consumer complaint case is thus disposed of accordingly.