Sunil Gupta & Anr vs Ansal Township Infrastructure Limited

This consumer complaint has been filed by the complainant Sh. Sunil Gupta & Anr. against the opposite party Ansal Townships Infrastructure Limited.

Brief facts of the case are that the complainants entered into agreement with Ansal Township Infrastructure Limited that is the opposite party on 15.11.2010 at New Delhi. Purpose of complainants was to book a flat of dwelling Unit No.C1129SF, measuring 1394 sq.ft., located at 2nd floor, sovereign floors, Alba, Esencia Sector-67 Gurgaon Haryana. Opposite party sent allotment letter dated 19.10.2010 to the complainants. Tripartite agreement dated 19.2.2011 was executed among complainants, opposite party and HDFC bank. Opposite parties sent an offer of possession letter to the complainants dated 28.06.2013. As per Claus 5.1 of BBA, opposite party had to hand over the flat within 30 months from the date of execution of the BBA, that is in 2013. Total amount paid by the complainants was Rs.82,26,572/- instead of Rs.71,94,800/- which was the original price. Basic sale price of the flat was Rs.66,50,000/-. Deficiencies which the complainants pleaded on part of the opposite party were that even after the stipulated period as per the BBA, possession of the flat was not given. Opposite parties collected extra amount of Rs.10,31,772/- from the complainants. This conduct of the opposite party does amount to deficiency in service and unfair trade practices.

Heard the learned counsel for the complainant at the admission stage. The learned counsel reiterated the facts of the complaint and stated that though the possession has been taken by the complainant he has paid more amount as was mentioned in the Builder buyer agreement and hence he is entitled to get the refund of those amounts. It was particularly stated that the opposite party has taken money for the alleged excess area of about 160 square feet whereas the fact is that there is not increase in the area of the flat. As per the builder buyer agreement, the possession was due after 30 months, however, even after completion of the due date of possession the possession was not delivered and more and more money was demanded from the complainant. As the builder was in a dominant position the complainants paid all the amounts demanded by the builder and now after getting the possession those illegal amounts are being asked for refund. With respect to the delay in filing the complaint the learned counsel stated that this was a continuing cause of action and therefore, the question of delay cannot be raised in the present case.

I have carefully considered the arguments advanced by the learned counsel for the complainants and examined the record. In the present case, the possession had been taken in November, 2015 and the complaint had been filed in January, 2018. Hon'ble Supreme Court in State of India in State Bank of India Vs. M/s. B.S. Agricultural Industries (I) AIR 2009 SC 2210 wherein the following has been held:

"8. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, `shall not admit a complaint' occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside".

Thus, this Commission is mandated to first examine whether the complaint has been filed within the time prescribed under the Consumer Protection Act, 1986. Clearly the complaint has been filed after two years of taking the possession when the cause of action arose for the present complaint. The following prayers have been made in the complaint:-

"1. Direct the opposite party to refund an amount of Rs.10,31,772/-.;

Direct the opposite party to pay interest @18% on a sum of Rs.82,26,572/- from 21.10.2013 to 28.04.2016 towards delay in giving the possession.

Direct the opposite party to compensate the complainants with Rs.10,00,000/- for all the inconvenience, apathy, humiliation and tormenting received at the hands of the opposite party;

Direct the opposite party to pay a sum of Rs.55,000/- towards cost of this petition;

And pass any such orders and reliefs deemed fit and proper by this Hon'ble Commission in view of the facts and circumstances of this case, for which act of kindness, the complainants shall, as is duty bound, ever pray."

It is seen that for different prayers made in the complaint, the cause of action arose at different times but before the date of taking over of the possession. When the complaint has been filed after 2 years from the date of possession then for all the prayers made in the complaint the cause of action has arisen prior to two years from the date of filing of the complaint. Thus, the complaint is definitely barred by limitation. No application for condonation of delay has been submitted by the complainant. Consequently, the delay cannot be condoned and the complaint is liable to be dismissed on the ground of limitation.

Even on merits, it is seen that the complaint has been filed only after all the payments as per the demand of the opposite party have been made and the possession taken by the complainant. The Hon'ble Supreme Court in case of State of Punjab and Ors. Vs. Dhanjit Singh Sandhu, Civil Appeal Nos.5698-5699 of 2009 decided on March 14, 2014, has held the following:-

"21. .................The said demand was rejected by the Estate Officer by passing the reasoned order in compliance of the directions of the High Court. In the facts of the instant case, we have no doubt in our mind in holding that the ratio decided in Tehal Singh's case will not apply in the instant case. In our considered opinion defaulting allottes of valuable plots cannot be allowed to approbate and reprobate by first agreeing to abide by terms and conditions of allotment and later seeking to deny their liability as per the agreed terms.

It is evident that the doctrine of election is based on the rule of estoppel the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had."

On the basis of the above observation of the Hon'ble Supreme Court a person cannot first pay all the demands and get the services from the opposite party and later on demand refund of the amount paid. Thus, the complainant is not entitled to refund of these amounts.

This Commission in Dr. Gopal and Another Vs. Deorao Ganpat Kaore and others (R.P.No.1915 of 2015 decided on 11.12.2015), has observed that after taking possession of the flat the complainant cannot file a complaint after two years of taking over of the possession.

Based on the above discussion, the Consumer Complaint No.50 of 2018 is dismissed as being barred by limitation as well as on merits.