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Judgment
Heard Mr. Gautam Dhamija, Advocate, for the complainants and Mr. Mohit D. Ram, Advocate, for the opposite parties.
Above complaint has been filed for directing the opposite parties to (i) hand over possession of Flat no.204, 2nd floor, “Gundecha Premiere” situated at Thakur Village, Kandivali (East), Mumbai-400101, (ii) pay rent of Rs.654000/-, for the period from 07.07.2014 till 06.07.2016, (iii) pay Rs.2000000/-, as loss of appreciation of the property, (iv) pay Rs.1500000/-, as compensation for mental agony and harassment, (v) pay Rs.1500000/-, for emotional trauma, (vi) pay Rs.3500000/- as punitive damages and (vii) pay interest on the above amount @24% per annum compounded quarterly or alternatively, direct the opposite parties to pay consolidated sum encompassing all the above totalling to Rupees Three Crores with interest @24% per annum compounded quarterly.
The complainants stated that opposite party-1 was a partnership firm and other opposite parties were its partners. They were engaged in the business of development and construction of group housing projects. The opposite parties launched a group housing project in the name of “Gundecha Premiere”, at CTS No.168/10 & 168/11, Village Megathane, Sub Plot No.D-2, situated at Thakur Village, Kandivali (East), Mumbai in the year 2010 and made wide publicity of its facilities and amenities. Believing upon the representations of the opposite parties, the complainants booked a flat in the above project on 18.09.2010 and deposited the booking amount of Rs.10/- lacs. The opposite party allotted Flat no.204, carpet area 937 sq. ft. for a total consideration of Rs.10394100/- in above project. Thereafter, the complainants deposited Rs.521615/- at the time of execution of agreement. The opposite parties executed an agreement to sell on 12.05.2011. The complainants applied for loan to HDFC Bank. HDFC Bank sanctioned loan of Rs.13000000/- on 09.03.2011. However, subsequently, the loan was not disbursed by the bank on the ground that the papers relating to the project were unclear and non-approval of the property which is situated in red zone. In the meantime, the opposite parties issued demand letters for payment of the instalments. The complainants paid Rs.311824/- through cheque dated 23.07.2011 and Rs.623646/- through cheque dated 16.09.2011. Although the complainants approached various other financial institutions for sanction of the loan but all the financial institutions demanded approved layout plan and commencement certificate which has not been supplied by the opposite parties. The opposite parties terminated the agreement vide letter dated 01.03.2012. The complainants again paid Rs.500000/- on 27.11.2012, Rs.500000/- on 13.12.2012, Rs.500000/- on 16.05.2013, Rs.1700000/- on 04.06.2014, Rs.1192682/- on 06.04.2014 and Rs.107318/- on 06.04.2014. On pursuance of the complainants, Axis Bank sanctioned a loan of Rs.4394960/- but again, due to defect in the title of the project, the loan was not disbursed. The complainants visited the office of the opposite parties on 04.02.2015 and enquired about the completion of building and handing over of possession. The opposite parties informed that the price has been enhanced from Rs.1.20 Crores to Rs.1.53 Crores although the work was not complete even at that time. The complainants then gave a legal notice on 23.04.2015 asking the opposite parties to hand over possession of the flat along with delayed compensation. In spite of service of legal notice, the opposite parties did not give any reply. Then this complaint was filed on 30.05.2016.
The opposite parties filed their written reply on 26.10.2016 and contested the matter. The complainants filed a rejoinder reply and Affidavits of Evidence of Mrs. Saraswati Durgaprasad Bhadouria and Mr. Durgaprasad Budhsingh Bhadouria. The opposite parties filed Affidavit of Evidence of Mr. Bharat Parekh. Both the parties have filed their short synopsis of arguments.
The counsel for the opposite parties raised a preliminary issue that the complaint is barred by limitation and no application under Section 24A of the Consumer Protection Act, 1986 has been filed for condoning the delay. Therefore, the complaint is liable to be dismissed on the ground of limitation. Inasmuch as the agreement between the parties was terminated vide letter dated 01.03.2012 as inspite of repeated demands through letters dated 24.01.2011, 15.03.2011, 31.03.2011, 07.06.2011, 15.06.2011, 02.07.2011, 01.08.2011 and 30.08.2011, the complainants failed to pay the dues of Rs.3283760/- + Service Tax + VAT + Interest. Thereafter, through letter dated 21.09.2012, after forfeiture of earnest money, balance amount was returned to the complainants. The complaint was not filed within two years even from 21.09.2012. The complaint is long barred by limitation and in the absence of any application for condoning the delay, it is liable to be dismissed.
The counsel for the complainants does not dispute the above facts. In fact, in paragraph 38 of the complaint, the cause of action arose on 01.03.2012 has also been mentioned but on the basis of subsequent communication between the parties as well as grant of loan by Axis Bank and agreement to sell of his house property, it is being alleged that since the opposite parties were in regular talks with the complainants and have assured for setting aside the termination letter, therefore, the cause of action shall be treated as extended lastly on 27.04.2014 and the limitation of two years has to be counted from this date. This argument is not liable to be accepted inasmuch as Section 9 of the Limitation Act, 1963 provides that where once time has begun to run, no subsequent disability or inability to institute a suit or make an application, stops it. Supreme Court also in Vidya Drolia Vs. Durga Trading Company (2021) 2 SCC 338 and Secunderabad Cantonment Board Vs. B. Rama (2021) 5 SCC 705, has held that the limitation once started to run, will not be stopped.
In the present case, there is nothing on record to show that the opposite parties have assured the complainants to set aside the termination dated 01.03.2012 or accepted any amount from the complainants. In paragraph-18 of the complaint, the complainants have stated that they had again paid Rs.500000/- on 27.11.2012, Rs.500000/- on 13.12.2012, Rs.500000/- on 16.05.2013, Rs.1700000/- on 04.06.2014, Rs.1192682/- on 06.04.2014 and Rs.107318/- on 06.04.2014. This paragraph has been denied by the opposite parties in their written reply. The complainants have not filed any evidence to prove these allegations. Mere writing e-mails and letters by the complainants, grant of loan by Axis Bank and agreement to sell of their house property will not extend the limitation.
ORDER
In the result, the complaint is accordingly, dismissed as time barred.