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Judgment
V.K. Jain, J
(1) The complainants booked a residential apartment with the opposite party in a project namely Canary Residency/Monsoon Breeze which the opposite party was to develop in Gurgaon.
(2) Clause-7.4 of Apartment Buyer's Agreement executed between the parties on 17.09.2008 reads as under:
"That possession of Apartment is proposed to be delivered by the Developer to the Buyer upon registration of the Conveyance Deed, provided all dues and demands payable up to the date of such possession required to be made under this agreement by the Buyer have been made to the Developer along with interest for delays, Taxes if any. It is, however, understood that various towers comprised in the Complex shall be ready and complete in phases and after the completion of each tower, Apartments will be handed over to the respective Buyers of that Tower after obtaining part completion."
(3)The possession of the apartment was taken by the complainants in terms of letter dated 05.09.2015, which to the extent it is relevant, reads as under:
"POSSESSION LETTER
I, Mr. Vikalp Mohan, S/o Sh. M.L. Sharma & Mrs. Madhuri Sharma W/o Sh. M.L. Sharma both Resident of Cottage-14, Shipra Suncity, Indrapuram, Ghaziabad, Uttar Pradesh-201014, do hereby confirm having received the cavant and peaceful physical possession of the residential apartment bearing No.E-503, on 5th Floor of Tower E of Monsoon Breeze 78 (earlier known as "Canary Residency"), along with One Open Car parking being numbered 320C, along with undivided/proportionate rights in the land underneath, situated in the revenue estate of village Naurangpur, Tehsil and District Gurgaon in the state of Haryana, India from Umang Realtech Private Limited, 1st Floor, The Great Eastern Centre, 70, Nehru Place, new Delhi, in conformity with the terms and conditions agreed upon and recorded in the Apartment Buyer's Agreement Dated 17 September 2008 and the sale deed executed pursuant thereto.
We confirm having inspected the above apartment externally and internally, including the fittings and fixtures, and declare and accept that the same is in accordance with the plans and specifications that have been agreed between the parties and the revision, changes and amendments made by the Developer and approved by the government authorities and we have no complaints or claims whatsoever against the Umang Realtech Private Limited in this regard.
We confirm having inspected the all the various common facilities such as Club, Swimming Pool, etc, and all the Services provided viz. Sewage Treatment Plant, DG Sets etc and declare and accept that the same is in accordance with the plans and specifications that have been agreed between the parties and we have no complaints or claims whatsoever against the Umang Realtech Private Limited in this regard."
(4) The possession slip which the complainants executed on the same day to the extent it is relevant reads as under:
"POSSESSION LETTER
I, Mr. Vikalp Mohan, S/o Sh. M.L. Sharma & Mrs. Madhuri Sharma W/o Sh. M.L. Sharma both Resident of Cottage-14, Shipra Suncity, Indrapuram, Ghaziabad, Uttar Pradesh-201014, do hereby confirm having received the vacant and peaceful physical possession of the residential apartment bearing No.E-503, on 5th Floor of Tower E of Monsoon Breeze 78 (earlier known as "Canary Residency"), along with One Open Car parking being numbered 492, along with undivided/proportionate rights in the land underneath, situated in the revenue estate of village Naurangpur, Tehsil and District Gurgaon in the state of Haryana, India from Umang Realtech Private Limited, 1st Floor, The Great Eastern Centre, 70, Nehru Place, new Delhi, in conformity with the terms and conditions agreed upon and recorded in the Apartment Buyer's Agreement Dated 17 September 2008 and the sale deed executed pursuant thereto.
We confirm having inspected the above apartment externally and internally, including the fittings and fixtures, and declare and accept that the same is in accordance with the plans and specifications that have been agreed between the parties and the revision, changes and amendments made by the Developer and approved by the government authorities and we have no complaints or claims whatsoever against the Umang Realtech Private Limited in this regard.
We confirm having inspected the all the various common facilities such as Club, Swimming Pool, etc, and all the Services provided viz. Sewage Treatment Plant, DG Sets etc and declare and accept that the same is in accordance with the plans and specifications that have been agreed between the parties and we have no complaints or claims whatsoever against the Umang Realtech Private Limited in this regard."
UMANG REALTECH PVT LTD SITE MONSOON BREEZE
SECTOR 78 GURGAON
POSSESSION SLIP
NAME OF THE ALLOTEE Mr. Vikalp Mohan CONTACT NUMBER 9958526611
ADDRESS Cottage14, Shipra Suncity, Indrapuram, Ghaziabad, U.P.
EMAIL ID (CAPITAL LETTERS)_________________
OFFER OF POSSESSION LETTER DATED 05.09.2015
APARTMENT NUMBER 503 TOWER E AT MONSOON BREEZE SECTOR 78 GURGAON
THIS IS TO INFORM YOU THAT I/WE HAVE PHYSICALLY INSPECTED THE ABOVE SAID APARTMENT TO OUR FULLEST SATISFACTION. WE HEREBY CERTIFY THAT THERE IS NO OBSERVATION WHICH IS PENDING AND NO ISSUE WILL BE RAISED HERE AFTER.
PHYSICAL POSSESSION OF THE SAID APARTMENT NO.503 TOWER E IS HEREBY TAKEN OVER BY ME ALONG WITH THE KEYS TO MY FULL SATISFACTION.
PARTUCULARS
NUMBER OF KEYS
KEY NUMBER
MAIN DOOR
3 KEYS
009736
MASTER BEDROOM
3 KEYS
2136
2ND BEDROOM
3 KEYS
2569
3 RD BEDROOM
3 KEYS
2HIZ
4 TH BEDROOM
3 KEYS
N/A
SERVANT ROOM
2 KEYS
1519
KITCHEN
NO KEY
METER READING
ACTUAL
109.00/-
PARKING NUMBER
GIVEN
320C
NAME Mr. M.L. Sharma DATE 05.09.2015 SIGNATURE Sd/-
F/o Mr. Vikalp Mohan
NAME Pawan Kumar Sharma DATE 05.09.2015 SIGNATURE Sd/-
(5) After delivery of possession of the apartment to the complainants, conveyance deed was executed on 09.03.2017.
Thereafter, the complainants/appellants approached the State Commission by way of a Consumer Complaint, seeking compensation for the delay in delivery of possession and also seeking refund of some charges recovered from them.
(6) Vide order dated 19.09.2018, the State Commission dismissed the Consumer Complaint as barred by limitation.
Being aggrieved by the order of the State Commission, the complainants/appellants filed First Appeal before this Commission.
(7) It would be seen from a perusal of the possession letter and the possession slip extracted hereinabove that the physical possession of the allotted flat as well as of open car parking was taken by the complainants on 05.09.2015.However, the said possession letters were not even mentioned by him in the Consumer Complaint stipulated before the State Commission, as was noted by the State Commission.
As per Section-24A of the Consumer Protection Act, 1986, the complaint had to be filed within two years from the date of cause of action. The cause of action to seek compensation for the delay in delivery of possession and to seek refund of some charges alleged to have been wrongly taken from the complainants arise on 05.09.2015. The Consumer Complaint, therefore, ought to be even stipulated by 05.09.2017.
Though the sale deed has been executed on 09.03.2017 that in my opinion, would not be relevant for the purpose of limitation in a Consumer Complaint seeking compensation for the delivery of possession and refund of the amount alleged to have been wrongly charged from the complainants. Though the delay could be contained, if sufficient cause for this purpose was shown, no application in terms of Section- 24-A(2) of the Consumer Protection Act, 1986, was filed by the complainants/appellants. Therefore, the State Commission, in my opinion, was justified in dismissing the complaint as barred by limitation. The order passed by the State Commission was justified on the aforesaid facts and does not call for interference by this Commission, in exercise of its appellate jurisdiction. It is, however, made clear that the dismissal of the Appeal shall not come in the way of the complainants/appellants approaching a Civil Court or any other Forum except a Consumer Forum for redressal of their grievances.