IMPORTANT POINT
Case must be filed within period of limitation.

J.M. Malik, Presiding Member—There is a delay of 207 days in filing the instant complaint. The complaint was filed on 1.4.2014, whereas the cause of action had arisen on 21.12.2010 and at the most on 6.11.2011.

2. Learned counsel for the complainants has filed an application for condonation of delay, which also contains the facts of this case on merits, as well. Mr. Niloba Ghanshym Naik and Mrs. Yogita Niloba Naik, husband and wife, respectively, booked 4 BHK flat with the Lodha Pranik Developers Pvt. Ltd.-opposite party No. 1 and its Chairman, Mr. Mangal Prabhat Lodha, opposite party No. 2, M.D. of Lodha Group, Mr. Abhishek Lodha, opposite party No. 3 and Mr. Abhinandan Lodha, Dy. M.D. Lodha Group, opposite party No.4. The consideration of the said flat was Rs.4,90,73,850/- in the building known as “Exclusive Tower-Fiorenza” at Lodha Fiorenza, Goregaon East, Mumbai and accordingly paid a sum of Rs.9 lakh by cheque on 13.11.2010 as part of the total consideration amount and the opposite parties had issued receipt of the same.

3. However, the opposite parties did not execute the registered agreement for sale of the said flat and violated the provisions of Section 4 of the Maharashtra Ownership Flats Act, 1963. ( in short, ‘MofA’). Several requests were made orally as well as black and white but the request made by the complainants fell on deaf ears.

4. The succinct facts of the case are as follows:

The complainants paid a sum of Rs. 9 lakh by cheque dated 13.11.2010 to the opposite parties. The complainants sent email to the opposite parties requesting them to give time to make payment till 10.1.2011 and not to charge interest for the same on 21.12.2010. The opposite parties replied through email informing that they want some more time to discuss with the superior officers for the grace period. On the next very day i.e. on 22.12.2010, the opposite parties through email informed the complainants that they would give only 3 days grace period for depositing the amount. The complainants replied that 3 days’ time was not sufficient for depositing the huge amount of Rs.40,07,385/- and the opposite parties were making fun of their request. They asked for refund of the earnest amount of Rs. 9 lakh by cancelling the booking. On 23.12.2010, the complainants sent email to Mr. Ashutosh Khatawakar, Deputy General Manager of Lodha Group and requested him to look into the matter and allow him to make payment on or before 10.1.2011 otherwise their booking should be cancelled and the amount be refunded.

5. Till 11.1.2011, the complainants did not respond. Due to frustration, the complainants wrote letter to the opposite parties for refund of the earnest money after cancelling the booking on 11.1.2011. On 30.8.2011, the complainants sent another email to the opposite parties and once again requested for refund of the earnest money. On 6.9.2011, the opposite parties informed the complainants that the amount of earnest money was forfeited.

6. Vide letters dated 2.10.2011 and 14.6.2013, the complainants asked the opposite parties to execute the agreement for sale of the said flat or in the alternative refund the earnest money because there was deficiency on their part and unfair trade practice. The said letter was replied by opposite parties on 7.12.2013 denying all these facts. Legal notice was issued on 11.11.2013. It is explained that under the circumstances, there is no delay in filing the present complaint. However, as an abundant precaution, the application for condonation of delay has been filed on record.

7. It is further explained that on 2.2.2104, the father of the complainant No. 1 expired and due to his sudden demise, he could not file the complaint in time as he was busy with the last funeral rites of his father at his native place. Immediately after his arrival in Delhi, he signed the complaint on 28.3.2014. It is explained that in the reply notice dated 7.10.2013, the opposite parties for the first time came with a case that fla