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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
V.K. Jain, Presiding Member
Shri Yogesh Sharma & Anr. —Complainants
versus
M/s Unitech Limited —Opp.Party
Consumer Case No.267 of 2014
Decided on 26.11.2015
For the Complainants:Ms. Ritu Gupta, Mr. Ajay Kumar, Mr. Yatinder Garg, Advocates
For the Opp.Party:Mr. Sunil Goel, Mr. Jatin Kumar, Advocates
IMPORTANT POINT
No necessity of opposite party expressly admitting its liability to refund amount received from complainants, jural relationship between parties admitted by offer of alternative accommodation to complainants.
Headnote:(i) Consumer Protection Act, 1986 — Section 24-A — Limitation Act, 1963 — Section 18 — Limitation — Residential Flat booked — First acknowledgement made on 19.08.2011 — Fresh period of limitation commencing from that date — Before expiry of aforesaid period new offer made by opposite party vide email — HELD — Period of limitation computed from date of second acknowledgment — Complaint well within period of limitation prescribed in S. 24-A of CP Act. (Para 6)
(ii) Consumer Protection Act, 1986 — Section 2 (g) & 21 —Indian Evidence Act, 1872 — Section 85 —Deficiency in service — Residential Flat booked — HELD — No substance in plea that construction of project — Delayed on account of agitation by famers. (Para 11)
(iii) Consumer Protection Act, 1986 — Section 21—Pecuniary Jurisdiction—HELD — No reason why interest claimed by complainants or at least part of it — Should not be taken into consideration — For purpose of deciding pecuniary jurisdiction of Commission. (Paras 14 & 15)
Result: Complaint disposed off.
V.K. Jain, Presiding Member—The complainants, who are husband and wife, booked a residential flat with the opposite party in a project named ‘CAPELLA’, which it was seeking to develop on Plot No.GH-01, Sector-MU, Greater NOIDA, Distt. Gautam Budh Nagar, U.P. The price of the flat was agreed at Rs.57,96,116/- and the complainants paid a total sum Rs.55,49,812/- to the opposite party. It was agreed that the possession of the flat will be handed over to the complainants within 40 months of the Agreement. The opposite party however failed to deliver the possession of the flat by the stipulated date. Being aggrieved, the complainants are before us by way of this complaint seeking refund of the aforesaid amount of Rs.55,49,812/- along with Rs.64,93,279/- as interest on that amount @ 18% per annum computed w.e.f. 03.12.2007 and compensation for mental pain, harassment etc. quantified at Rs.50,00,000/-.
2. The complaint has been resisted by the opposite party inter-alia on the ground that it is barred by limitation and has not been filed by a competent person. On merits, allotment of Apartment No.404 in Tower 9, measuring 1870 sq. ft. to the complainants has been admitted. It is however alleged that though the land measuring 100 acres was allotted to the opposite party by Greater Noida Industrial Development Authority in Sector MU of Greater Noida on 15.09.2006 and Lease Deed in its favour was also executed on 22.01.2007, followed by possession certificate dated 29.01.2007, actual physical possession could not be handed over to the opposite party due to agitation by local farmers. It is further alleged that due to global meltdown and local market dynamics in real estate industry, the investment value in this project underwent a sea-change and the project therefore got belated due to circumstances beyond the control of the opposite party. It is also claimed by the opposite party that since the amount paid by the complainants was less than Rs.1 Crore this Commission does not have pecuniary jurisdiction to entertain this complaint.
3. The first question which arises for consideration in this case is as to whether the complaint is barred by limitation prescribed in Section 24-A of the Consumer Protection Act. The contention of the learned counsel for the opposite party in this regard is that since last payment was made on 17.01.2008, the complaint could have been filed latest by 17.01.2010. He also contended during the course of hearing that even if the period of limitation is computed from the date by which the possession was promised to the complainants, it is barred by limitation.
4. Section 24-A of the Consumer Protection Act, to the extent it is relevant, provides that the complaint shall not be admitted unless it is filed within two years from the date on which the cause of action has arisen. The term ‘cause of action’ has not been defined in the Act but it is generally understood to mean the whole set of facts which the party will have to prove, in order to succeed in his claim. It was held by Hon’ble Supreme Court in Dr. V.N. Srikhande vs. Mrs. Anita Sena Fernades, JT 2010 (11) SC 524 that the term cause of action used in the aforesaid section has to be interpreted keeping in view the context in which it has been used and the object of the legislation.
5. The complainants having booked the residential flat which the opposite party promised to deliver within 40 months from the date of the agreement between the parties which in this case was 10th January 2008, they had no cause of action to file this complaint before 10th May 2011 when the aforesaid period of 40 months expired. Computed from that date the complaint could have been filed by 10th May, 2013. However, before that date, the opposite party offered allotment of an alternative flat to the complainants. Vide email dated August 19, 2011 sent to the complainant, the opposite party offered to provide a unit in Habitat and Verve in Greater Noida and he was requested to com
