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GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI
N.A. Britto, President and Vidhya R. Gurav, Member
Thomas James Fishers —Complaint
versus
Girdharlal Mohanlal Gangani —Opposite Party
C.C. No. 17 of 2010
Decided on 3.1.2013
Counsel for the Parties:
For the Complainant:Mr. M. Amonkar, Advocate.
For the Opposite Party:Mr. N.R.S. Bodke, Advocate.
IMPORTANT POINT
If complaint is barred by time and yet Forum decides complaint, Forum would be committing illegality.
Headnote:(A) Consumer Protection Act, 1986—Sections 12 , 17 and 24-A—Real estate—Flat—Termination of agreement by complainant—Amount not refunded—Complaint dismissed by District Forum—Complainant is not entitled to relief sought for by him of recovery of possession because complainant himself has terminated agreement and also because even after lapse of more than a decade complainant has failed to obtain approval from RBI to purchase immovable property—Complainant ought to have filed complaint within two years from 6.8.2001 or ought to have shown sufficient cause why it could be filed within said period—Complainant has failed to do so—Complaint filed on 24.11.2010 is hopelessly time barred—Complaint dismissed. (Paras 9 to 13)
(B) Consumer Protection Act, 1986—Section 24-A—Complaint—Limitation—Expression, ‘shall not admit a complaint’ occurring in Section 24A is sort of legislative command to Consumer Forum to examine on its own whether complaint has been filed within limitation period prescribed thereunder—As a matter of law, Consumer Forum must deal with complaint on merits only if complaint has been filed within two years from date of accrual of cause of action and if beyond said period, sufficient cause has been shown, and delay condoned for reasons recorded in writing—If complaint is barred by time and yet Forum decides complaint, Forum would be committing illegality and aggrieved party would be entitled to have such order set aside. (Para 10)
N.A. Britto, President—The complainant is a British National. By complaint filed on 24.11.2010 under Section 17 of the C.P. Act, 1986, the complainant seeks to recover from the O.P. a builder, possession of the suit flat complete in all respects or in the alternative refund of the money paid with interest plus compensation and costs.
2. The complainant during one of his visits to Goa met the O.P. and orally agreed to purchase from him a flat, namely flat No.6, situated on the second floor in the O.P’S. proposed building complex to be known as Gokul Residency situated in survey No. 111/3 of Serula Village, Bardez Taluka, for a sum of Rs. 9.75 lacs and paid to the O.P. in December 1996 a sum of Rs. 3.5 lacs. The O.P. by letter dated 20.9.1996 assured the complainant the refund of Rs. 3.5 lacs in case the complainant failed to obtain RBI approval for the purchase of the said flat.
2.1. The complainant on 10.12.1997 applied to the Reserve Bank of India for permission and by letter dated 11.3.1998 the complainant was informed by the Reserve Bank of India to submit a valuation report from the Government approved valuer of the value of the immovable property to be purchased by the complainant. The complainant was again informed by the O.P. by letter dated 8.1.1998 that all monies paid by him would be refunded to him with interest thereon at the rate of 12% p.a. in the event the complainant’s application for permission was rejected by the RBI.
3. On or about 4.2.1998 the complainant and O.P. entered into a written agreement. The agreement was executed by the O.P. on 4.2.1998. By virtue of this written agreement the O.P. was to deliver the suit flat to the complainant within a period of 12 months. The agreement also stipulated that in the event the O.P. was unable to complete the construction and deliver the possession to the complainant of the suit flat within a said period of 12 months, the complainant was entitled to exercise the option to cancel the agreement and demand immediate refund of all moneys paid to the O.P. and in such an event the O.P. was required to refund to the complainant all the money received without interest, within 60 days of the receipt of the notice in writing in that behalf from the complainant and in case of default of payment of the said money within the stipulated period of 60 days, the builder was made liable to make payment of interest at the rate of 24% p.a. from the date of default till payment.
4. The complainant by letter dated 11.3.1998 was informed by the RBI to submit a valuation report and by another letter dated 27.6.2000, the complainant was informed by the Reserve Bank of India that foreign nationals of non-Indian origin holding short tourist visas were not allowed to acquire immovable property situated in India. The complainant was also advised, in case he was holding a long term visa, to submit certain documents mentioned therein. It appears that the complainant did not pursue the matter further.
5. On or about 27.4.1998 the complainant paid another sum of Rs. 50,000 to the O.P. The payment of Rs. 8 lacs by the complainant is admitted by the O.P. or in any event, it is proved by the complainant. The complainant thereafter terminated the agreement by notice dated 8.6.2001 through his Advocate Mr. S.M.S Usgaonkar and called upon the O.P. to refund the sum of Rs. 8 lacs with interest at the rate of 12% from July 2000 till payment.
6. Both the parties have filed their affidavits-in-evidence. The complainant has filed the affidavit-in-evidence through his attorney. Both parties have been cross-examined by interrogatories. Both the parties have not placed on record all the correspondence exchanged between them. We have heard learned Advocates on behalf of the parties.
7. Mr. Amonkar, the learned Advocate of the complainant would submit that the complainant had paid to the O.P. Rs. 8 lacs and the balance was to be paid at the time of handing over the possession of the suit flat to the comp
