BEFORE THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION DELHI AT  NEW DELHI

FIRST APPEAL No._________of 2020

IN THE MATTER OF:-

Sh. XXX XXXX   XXXXX                   ………………Appellant

VERSUS

XXX XXX Builders Pvt. Ltd.             …………Respondent

INDEX

New Delhi                                       Filed by

Dated                                  Appellant / Advocate

BEFORE THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION DELHI At  New Delhi

FIRST APPEAL No._______of 2020

IN THE MATTER OF:-

Sh. XXX XXXX   XXXXX                        ………………Appellant

VERSUS

XXX XXX Builders Pvt. Ltd.                  …………Respondent

LIST OF DATES AND EVENTS

• Respondent advertised their upcoming project named as “XXX XXX Garden Estate” in Sonepat, (Haryana) and invited applications from willing and interested buyers to purchase plots of various dimensions. They also got printed attractive brochures under the name “XXX XXX Garden Estate”.

01.05.2009    Appellant visited the site office of the Respondent at Sonepat Haryana to enquire   about the advertised scheme of the Opposite Party, cost and the time for completion of project. The Respondent reiterated the plan as mentioned above in the pamphlet and further told the possession 250 sq / yd plot would be      given to Appellant latest by Mid of 2010.

• That Believing upon the commitment and assurance of the Respondent, the Appellant agreed to book a plot measuring 250 sq./ yd. @ 8,425/- per sq/yd in the proposed project of Respondent named as “XXX XXX Garden Estate” in Sonepat, (Haryana) for Plot No. MB-137 by paying booking amount of Rs. 6,31,875/. The Appellant was provided receipt dated 30.07.2009 for a sum of Rs. Rs. 6,31,875/-.

31.07.2009    A plot buyer’s agreement was executed between the Appellant and Respondent wherein precisely the Respondent agreed to sell and Appellant agreed to purchase a plot No. – 137, Block–MB having area 250 sq./yd. @ Rs. 8,425/- per sq./yd.

November 2009 the Respondent sent a demand for Rs. 8,19,375/- which was met by the Appellant and his banker.

24.11.2009 A housing loan from HDFC Housing Finance Ltd. having its registered office at Raman House, 169 Backbay Reclamation Mumbai 20 was approved for a sum of Rs. 10,50,000/- vide loan approved letter Tripartite agreement dated 20.11.2009.

25.11.2009 The Appellant paid another Rs. 3,50,000/- to Respondent vide Receipt dated 25.11.2009 and the Banker of the Appellant named HDFC Housing Finance Ltd. Paid Rs. 4,69,375/- Copy of Cheque) which has been admitted by the Respondent vide letter dated  13.04.2013.    

08.04.2013 When Appellant visited the site of the Respondent at Sonepat Haryana the respondent informed the Appellant that they have got NOC for selling plots in residential plotted colony namely XXX XXX garden Estate falling in sector 26, 26A and 27 Sonepat dated 03.04.2013 and they would accordingly soon send a demand letter of the balance payment and deliver the possession soon of the subject plot. It is worth to mention here that Respondent had no legal authority to sell plots in the said project before 03.04.2013.

20.04.2013    The Respondent sent a sham offer of possession letter dated 13.04.2013 to Appellant professing to offer a plot No. MB-137 in sector 26,26A and 27 Sonepat Haryana to Appellant. The Respondent vide same letter demanded a sum of Rs. 5,77,705/- on account of interest on delayed payment, further enhanced EDC/IDC charges by Rs. 77,500/- and Rs 96349 other charges not mentioned in the agreement.

• The Appellant vide letter dated made representations to respondent highlighting unlawful and illegal demands in respect of interest on delayed payments and Rs 5,77,705/- on account of interest on delayed payment, further enhanced EDC/IDC charges by Rs. 77,500/- and Rs 96349 other charges not mentioned in the agreement.
• The respondent further wrote reminder letter dated 11.05.2013 to Appellant making similar demands as per the letter dated 13.04.2013 described in para 13 above.
• That the Appellant also replied the letter of respondent dated 11.05.2013 vide his letter dated Nil to respondent highlighting unlawful and illegal demands in respect of interest on delayed payments and Rs 5,77,705/- on account of interest on delayed payment, further enhanced EDC/IDC charges by Rs. 77,500/- and Rs 96349 other charges not mentioned in the agreement requesting them to waive off the same and accept the balance payment as per the agreement.
• That Appellant had again sent letter via email to RESPONDENT at “info@XXX XXXgroup.com” on 18.06.2013 as this was not replied by the Respondent requesting them to waive off the same and accept the balance payment as per the agreement.

12.12.2013    The RESPONDENT send reminders, 3^rd  and 4^th to which Appellant replied even again by email on 12.12.2013. However the Respondent made no comment on the representations of the Appellant. 

• The Respondent vide letter dated 08.01.2014 cancelled the said booked plot of the Appellant arbitrarily and illegally without paying any heed to his contractual liability and several requests of the Appellants.
• The Appellant sent email to Respondent offering commitment of paying the full balance amount without any interest charge.

07.01.2016    That thereafter there was good amount of mutual communication between both the parties till 07.01.2016 when Respondent finally declared that they had cancelled the said booking and they would do nothing in that behalf. 

07.03.2016    the Appellant filed a consumer complaint before District Consumer Forum West at Janak Puri New Delhi which was listed and marked as CC/XXX/XXXX.

06.07.2017    However, at the stage of Evidence of the Respondent vide order dated 06.07.2017 the Ld. Forum pleased to return the present complaint for filing the same before State Commission.

• Appellant filed a consumer complaint before Ld. State Commission which was listed as CC/XXXX/XXXX.

15.09.2017    Ld. State Commission pleased to dismiss the complaint of the present appellant at the initial stage of admission on the ground of limitation holding that the complaint to be time barred.

New Delhi

Dated                                      Filed by

                                      Appellant / Advocate

BEFORE THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION DELHI AT  NEW DELHI

FIRST APPEAL No._______ of 2017

IN THE MATTER OF:-

Sh. XXX XXXX   XXXXX              ………………Appellant

VERSUS

XXX XXX Builders Pvt. Ltd.        …………Respondent

MEMO OF PARTIES

Sh. XXX XXXX   XXXXX

S/o Sh. XXX XXX XXXXXXX

R/o V.P.O. XXXX

Tehsil – XXXXXX

District– Sonepat,

Haryana

Ph. +91-XXX XXX XXXXE mail ID XX@gmail.com               ………………Appellant

                             VERSUS

XXX XXX Builders Pvt. Ltd.

Address  
New Delhi – 110026

Phone                       

E mail ID                              …………Respondent

New Delhi

Dated                                      Filed by

                                       Appellant / Advocate

BEFORE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION DELHI AT NEW DELHI

FIRST APPEAL No.___of 2017

IN THE MATTER OF:-

Sh. XXX XXXX   XXXXX

S/o Sh. XXX XXX XXXXXXX

R/o V.P.O. XXXXX

Tehsil – XXXXX

District– Sonepat,

Haryana

Ph. +91-XXX XXX XXXXE mail ID                           …………Appellant

                             VERSUS

XXX XXX Builders Pvt. Ltd.

Address  
New Delhi 110026  

Ph.      

E mail Id                             …………Respondent

FIRST APPEAL U/S 51(1) OF THE CONSUMER PROTECTION ACT, 2019 ON BEHALF OF THE APPELLANT

MOST RESPECTFULLY SHOWETH:-

That the present First Appeal is being preferred against the order dated 15.09.2017 passed by the Ld. State Consumer Dispute Redressal Commission, Delhi, at New Delhi in Complaint No. CC/XXXX/XXXX, wherein the Ld. State Commission pleased to dismiss the complaint filed by Appellant as time barred.

• That the facts in brief leading to the filing of the present First Appeal are as follows:-

1. That the Respondent is a company incorporated under the­ Companies Act, 2013 and having its Regd. Office at XXXXXXXXXXXXXXX, New Delhi – 110026 and is claiming to be a land developer and builder engaged in developing land for direct sale to customers apart from other activities.
2. That it so happened that the Respondent advertised their upcoming project named as “XXX XXX Garden Estate” in Sonepat, (Haryana) and invited applications from willing and interested buyers to purchase plots of various dimensions. They also got printed attractive brochures under the name “XXX XXX Garden Estate”.
3. That on 01.05.2009 the Appellant visited the site office of the Respondent at Sonepat Haryana to enquire about the advertised scheme of the Respondent, cost and the time for completion of project. The Respondent reiterated the plan as mentioned above in the pamphlet and further told the possession 250 sq / yd plot would be given to Appellant latest by Mid of 2010. Further and most importantly the Appellant was supposed to pay the price in installments.
4. That Believing upon the commitment and assurance of the Respondent, the Appellant agreed to book a plot measuring 250 sq./yd. @ 8,425/- per sq/yd in the proposed project of Respondent named as “XXX XXX Garden Estate” in Sonepat, (Haryana) for Plot No. MB-137 by paying booking amount of Rs. 6,31,875/. The Appellant was provided receipt dated 30.07.2009 for a sum of Rs. Rs. 6,31,875/-. However when the plot was booked little did the Appellant know about any of the sinister designs of the Respondent.
5. That on 31.07.2009 a plot buyer’s agreement was executed between the Appellant and Respondent wherein precisely the Respondent agreed to sell and Appellant agreed to purchase a plot No. – 137, Block–MB having area 250 sq./yd. @ Rs. 8,425/- per sq./yd.
6. That in the month of November 2009 the RESPONDENT sent a demand for Rs. 8,19,375/- which was met by the Appellant and his banker.
7. That since the Appellant was always forthcoming and willing to make payments on account installments and therefore he made payments to Respondent as per following details.
8. That 24.11.2009 a housing loan from HDFC Housing Finance Ltd. having its registered office at Raman House, 169 Backbay Reclamation Mumbai 20 was approved for a sum of Rs. 10,50,000/- vide loan approved letter. Tripartite agreement dated 20.11.2009 was entered into. It is pertinent to mention here that the finance was assisted by the Respondent itself and was well within his knowledge.
9. That on 25.11.2009 the Appellant paid another Rs. 3,50,000/- to Respondent vide Receipt dated 25.11.2009 and the Banker of the Appellant named XXXX Housing Finance Ltd. Paid Rs. 4,69,375/-. Copy of Cheque) which has been admitted by the RESPONDENT vide letter dated 13.04.2013.  
10. That thereafter the Appellant made several visits to Respondent at their site office and inquired about the status of the project when the next demand would be made and he was always informed that the Construction was in the full swing by Respondent and they would soon raise a demand in that respect too.
11. That on 08.04.2013 when Appellant visited the site of the Respondent at Sonepat Haryana the Respondent informed the Appellant that they have got NOC for selling plots in residential plotted colony namely XXX XXX garden Estate falling in sector 26,26A and 27 Sonepat dated 03.04.2013 and they would accordingly soon send a demand letter of the balance payment and deliver the possession soon of the subject plot. It is worth to mention here that RESPONDENT had no authority to sell plots in the said project before 03.04.2013.
12. That on 20.04.2013, the Respondent sent a sham offer of possession letter dated 13.04.2013 to Appellant professing to offer a plot No. MB-137 in sector 26, 26A and 27 Sonepat Haryana to Appellant as if they had completed the project and were in the process of giving possession of the same to applicants. However it was highly illegal, impermissible and unfair that the Respondent vide same letter demanded a sum of Rs. 5,77,705/- on account of interest on delayed payment, further enhanced EDC/IDC charges by Rs. 77,500/- and Rs 96,349 other charges not mentioned in the agreement.
13. That therefore the Appellant vide letter dated 21.04.2013 made representations to RESPONDENT highlighting unlawful and illegal demands in respect of interest on delayed payments and Rs 5,77,705/- on account of interest on delayed payment, further enhanced EDC/IDC charges by Rs. 77,500/- and Rs 96349 other charges not mentioned in the agreement.
14. That without replying to representations of the Appellant abovementioned the Respondent further wrote reminder letter dated 11.05.2013 to Appellant making similar demands as per the letter dated 13.04.2013 described above.
15. That the Appellant also replied the letter of Respondent dated 11.05.2013 vide his letter dated Nil to Respondent highlighting unlawful and illegal demands in respect of interest on delayed payments and Rs 5,77,705/- on account of interest on delayed payment, further enhanced EDC/IDC charges by Rs. 77,500/- and Rs 96349 other charges not mentioned in the agreement requesting them to waive off the same and accept the balance payment as per the agreement
16. That Appellant had again sent letter via email to Respondent at “info@XXX XXXgroup.com” on 18.06.2013 as this was not replied by the Respondent requesting them to waive off the same and accept the balance payment as per the agreement.
17. That thereafter the Respondent send reminders,3^rd and 4^th to which Appellant replied even again by email on 12.12.2013. However the Respondent made no comment on the representations of the Appellant.
18. That on 08.01.2014 the Respondent vide letter dated 08.01.2014 cancelled the said booked plot of the Appellant arbitrarily and illegally without paying any heed to his contractual liability and several requests of the Appellants.
19. That again on 01.2014 the Appellant sent email to Respondent offering commitment of paying the full balance amount without any interest charge.
20. That thereafter there was good amount of mutual communication between both the parties till 07.01.2016 when Respondent finally declared that they had cancelled the said booking and they would do nothing in that behalf.
21. That the Respondent has got illegally enriched itself by forfeiting hard earned money of the Appellant and right to own property as the property prices have gone up very high in past few years.
22. That despite several reminders of Appellants Respondent kept the Appellant in dark and at no point of time did they provide the Appellant with the registry documents, various compliances certificates issued by local authorities and other relevant documents which amounted to deficiency in service.
23. That on 07.03.2016 the Appellant filed a consumer complaint before Ld. District Consumer Forum West at Janak Puri New Delhi which was listed and marked as CC/XXX/XXXX. However at the stage of Evidence of the Respondent vide order dated 06.07.2017 the Ld. District Forum pleased to return the present complaint for filing the same before the Ld. State Commission without following the procedure laid down in the law in this behalf. A copy of original complaint and order dated 06.07.2017 have been annexed with the copy of complaint respectively.
24. That following the order dated 06.07.2017 passed by Ld. District Forum, on 21.08.2017 the appellant filed a consumer complaint before Ld. State Commission which was listed as CC/XXXX/XXXX.
25. That vide order dated 15.09.2017 Ld. State Commission pleased to dismiss the complaint of the present appellant at the initial stage of admission on the ground of limitation holding that the complaint to be time barred. Hence the present First Appeal.

3) GROUNDS OF FIRST APPEAL

1. Because the impugned order is patently bad in law and erroneous.
2. Because the impugned order is bad on facts and is inequitable.
3. Because the impugned order is not in accordance with the law, equity, justice and good conscience.
4. Because the impugned Judgment and Order passed is illegal, and violating the principles of natural justice of law as reasons have not been provided for the decision made;
5. Because the Ld. State Commission failed to appreciate the facts of the case in correct perspective specially the issuance of
6. Because the Ld. State Commission failed to appreciate that the cause of action to file the Complaint in favor of the Appellant and against the Respondent arose on several occasions and counts. It firstly arose on 08.01.2014 when the Respondent vide letter dated 08.01.2014 cancelled the subject booking of plot of the Appellant. Secondly, it again arose on 07.01.2016 when Respondent finally declared / reiterated that they had cancelled the booking of the plot of Appellant and they would do nothing in that behalf.
7. Because the Ld. State Commission has erroneously held that the complaint was barred by law of limitation and the Appellant has not filed any application for condonation of delay.
8. Because the impugned order is against the statutory provisions of section 18 of the Limitation Act, 1963.

Section 18 of the Limitation Act, 1963 is reproduced as under:

“18. Effect of acknowledgment in writing.–

(1) Where, before the expiration of the prescribed period for a suit of application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.

(2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received. Explanation.–For the purposes of this section,–

(a) an acknowledgment may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set-off, or is addressed to a person other than a person entitled to the property or right;

(b) the word “signed” means signed either personally or by an agent duly authorised in this behalf; and

(c) an application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right.”

It may kindly be appreciated by this Hon’ble Commission that on plain reading of the above provision, it is clear that the acknowledgment of liability extends the period of limitation if the acknowledgment of debt is done in writing before the expiry of period of limitation for initiating the proceedings.  The consumer complaint related to the wrong and unjustified cancellation of booking of the plot for the Appellant on 08.01.2014 vide letter dated 08.01.2014 Annexed at page No.     .  The limitation for raising a consumer dispute in respect of said allegation was till the 07.01.2016. The Respondent again wrote to Appellant on the very same day vide letter dated 07.01.2016 Annexed at page  No   .Hence from this letter extension of period of limitation starts since there is categorical acknowledgement of the liability by the Respondent as per the contents of the said letter. Though the limitation for filing the consumer complaint expires on 07.01.2016 fortunately on the same date same revives / gets a fresh lease from the issuance of letter dated 07.01.2016 by the Respondent.  Thus, the letter dated 07.01.2016 issued by Respondent to Appellant clearly in law extends the limitation. However the Ld. State Commission failed to appreciate the vital statutory provision.

1. Because in V.N. Shrikhande (Dr.) Vs. Anita Sena Fernandes (2011) 1 SCC 53 it has been categorically held by the Hon’ble Supreme Court that before dismissing the complaint as time-barred, an opportunity of hearing should be given to the Complainant, who can seek condonation of delay under Section 24-A(2) of the Act by showing that there was sufficient cause for not filing the complaint within the prescribed time. However, this opportunity as is evident from the impugned order has not been provided to the Appellant. 
2. Because the impugned order is based on erroneous conclusions. Which are drawn on assumptions and surmises.
3. Because even otherwise also the impugned Judgment and Order is bad in law and on facts and the same is therefore liable to be quashed and set aside.
4. Because impugned order has been passed without application of mind and appreciation legal and factual position in it’s proper perspective and therefore the impugned order requires to be quashed. and set aside.
5. Because the findings recorded and observations made in the impugned orders which are not herein specifically challenged are hereby challenged.
6. Because the facts and circumstances of the case have not been properly appreciated by the Ld. State Commission.
7. Any other ground the Appellant may raise at the time of hearing the arguments with due permission of this Hon’ble Commission.

• The Appellant craves leave to add, alter, amend or delete any of the foregoing paragraphs as and when necessary.
• The Appellant has not filed any other Appeal or case from Order in this Hon’ble High Court or in the Supreme Court challenging the impugned order, which is pending.
• The Appellant submits that the Judgment and order was passed on 15.09.2017 and the Appellants received certified copy of the same through on 16.10.2017
• The Appellants submit that hence the present First Appeal filed by the Appellant is well within the Period of limitation.

PRAYER

In view of the abovementioned grounds, the Petitioner makes venerable Prayer before Hon’ble Commission to:-

1. Call for the Records in Complaint Case No. CC/XXXX/XXXX preferred before the Ld. State Consumer Dispute Redressal Commission, Delhi at New Delhi.
2. Allow the present First Appeal and Set aside impugned Order dated 15.09.2017 passed by the Ld. State Consumer Dispute Redressal Delhi at New Delhi, in Complaint Case No. CC/XXXX/XXXX titled XXX XXXX XXXXX Vs XXX XXX Builders Pvt. Ltd. as and allow the Consumer Complaint filed before the Ld. State Commission.
3. Any other directions / orders which this Hon’ble Commission deems fit may also pass in the interest of justice.

Appellant

New Delhi                         Through

Dated                                 Counsel

BEFORE THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION DELHI NEW DELHI

FIRST APPEAL No.__________of 2017

IN THE MATTER OF:-

Sh. XXX XXXX   XXXXX                                              …………Appellant

                             VERSUS

XXX XXX Builders Pvt. Ltd.            …………Respondent

AFFIDAVIT IN SUPPORT OF THE FIRST APPEAL U/S 21 (a)(ii) OF THE CONSUMER PROTECTION ACT, 1986

I, XXX XXXX   XXXXX S/o Sh. XXX XXX XXXXXXXaged about 45 years R/o V.P.O. XXXX Tehsil – XXXXXX State – Sonepat, Haryana do hereby on solemn affirmation State and declare as under:-

1. That I am the Appellant in the above titled case and fully conversant with the facts of the case therefore competent to swear this Affidavit.
2. That the accompanied complaint has been drafted by my counsel under my instructions and has been read over to me.
3. That the contents of accompanied complaint are declared by me to be true and correct and may kindly be read as integral part of this affidavit as same are not being repeated for the sake of brevity.
4. That my above statement is true.

DEPONENT

VERIFICATION

Verified on this day of           October, 2020 at New Delhi that the contents of the above Affidavit are true to the best of my knowledge and belief and no part of the same is false and nothing material has been concealed therefrom.

DEPONENT