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Sample Consumer Complaint

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

District West Janak Puri New Delhi

CONSUMER COMPLAINT No. _____of 2020

IN THE MATTER OF:-

Name of Complainant

S/o Sh. ..              

Address

Phone

E mail ID                                                                                              …………Complainant             

VERSUS

Name of Opposite Party

Address

Phone No.

E mail Id                                                                                                ……Opposite Party

 

 CONSUMER COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019 ON BEHALF OF COMPLAINANT

MOST RESPECTFULLY SHOWETH:-

  1. That the complainant is peace loving, law abiding and a disable citizen of India. The complainant was desirous of purchasing a residential property.
  2. That the Opposite Party is a company incorporated under the­ Companies Act, 2013 having its registered and corporate office at the above mentioned address are professing to be engaged in developing plots for direct sale to customers apart from doing other activities.
  3. That it so happened that in the month of December 2011 the Opposite Party had floated and advertised their upcoming project named as “XXXXXX” at Sonepat Haryana and invited applications from willing and interested buyers to purchase plots in the said project. They also got printed attractive and lucrative brochure under the name “XXXXXX” in order to lure more and more customers. (Annexure A2).
  4. That on 25.12.2011 the complainant contacted and approached the Opposite Party at their registered office. The Opposite Party confirmed to the complainant about their advertised scheme, cost and the time for completion of project and other connected matters thereto etc. It was specifically informed by the OP that their project was approved one by the competent authority. The OP reiterated the plan as mentioned above in the brochures.
  5. That believing upon the commitment and assurance of the Opposite Party, on 27.12.2011 the Complainant booked a Residential plot measuring 200 sq./yd. L Type Plot No. 24 Size 25 Ft. X 72 Ft. in the project of the OP named as “XXXXXX Colony” adjacent to BITS College at Sonepat Haryana @ Rs. 1,990/- per sq./yd. for a total consideration of Rs. 3,98,000/- under installment payment plan by paying a sum of Rs. 8,000/- as advance and agreeing to pay balance Rs. 5,000/- in 78 EMIs.
  6. That in order to book the said plot in the so called project of the Opposite Party, the complainant was made to sign a booking application form.
  7. That since the complainant was always willing and forthcoming to pay the balance payment as per the terms of Payment therefore, he paid each EMI well in time thus in total sum of Rs. 3,90,000/- on account various installments including for the subject plot measuring 200 sq/yd. Thus by 05.08.2018 totaling Rs. 3,98,000/- as per the schedule of payment on different dates had been paid to OP1. Annexure A… Various Receipts.
  8. That when the said plot was booked little did the complainant know about any of the sinister designs of the Opposite Party. As the OP had only intended to dupe as maximum numbers of consumers as possible by launching their false residential plot projects. That is why before accepting the booking amount they have not collected statutory compliances from the concerned Government departments and began collecting money on account of the booking amount and subsequently installment from innocent consumers in a sheer disregard to law of land and strict guidelines issued by concerned development authority.
  9. That after paying entire consideration amount thereafter the complainant requested OP for execution of registered sale deed. The OP asked complainant to deposit all the originals and Rs. 61,600/- for Registration and execution of sale deed of the subject plot.
  10. That on 27.11.2018 complainant paid Rs. 61,600/- (Annexure A……) and delivered all original documents like receipts etc to OP and the OP fixed a date of 24.01.2019 for registration of sale deed in the name of wife of complainant at Mini Secretariat Tehsil Sonepat Haryana.   
  11. That on 27.11.2018 i.e. the fixed date the complainant reached at Mini Secretariat Tehsil Sonepat Haryana with his wife for execution and registration of sale deed. The complainant insisted for showing the sale deed to authorized representatives of the OP however they made several excuses and didn’t show sale deed to complainant.
  12. That after one month the complainant reached at the office of the OP to collect the registered sale deed. However the complainant shocked to see the sale deed as it was in respect of a totally different plot with a rubber stamp “POSSESSION GIVEN” also affixed on the last page by a different seller named as XXXX s/o XXXXXX whereas the complainant had contracted with the OP and paid entire purchase consideration to OP only. Moreover neither the direction of complainant’s plot No. 24 was mentioned nor the dimension (length and breadth) were mentioned on the said sale deed. The location of the said plot was also not mentioned on the said sale deed only 7/1598 part of the land was mentioned on the said sale deed. It was not possible for anyone to locate the plot mentioned in the said sale deed. Even the colony name “XXXXXX” was also not mentioned on the said sale deed.    
  13. That on page No. 2 of the registered sale deed a cheuqe No. 940632 drawn on SBI for a sum of Rs. 3,98,000/- was also mentioned on account of entire consideration for the said plot paid to said Mr. XXXXXX S/o  whereas the complainant had paid entire consideration of Rs. 3,98,000/- in EMI’s to OP.  
  14. That the director and other officer of the OP tried to take signature of the complainant forcibly from complainant however complainant somehow managed to free himself from the clutches of the OP.
  15. That on 26.04.2019 the OP called the complainant and asked him to come on the site office of the OP at Sonepat on 27 or 28 April 2019 for taking possession of the plot actually booked by complainant No. 24, In fear complainant hired a taxi and accompanied his brother and his old age father and reached to OP’s site office at Sonepat on 28.04.2019. The complainant insisted OP to show him the marking of plot No. 24 Corner plot L-type. They again refused and misrepresented regarding the plot. They said that the complainant’s plot is not on the front side rather it is in the backside and size of his plot is 20X90Ft. The complainant protested that he had booked and purchased a plot first corner plot of this colony which was plot No. 24 measuring 200 sq/yd with size 25ftX72ft.according to the map / layout plan of XXXXXX colony shown in their office and now they were befooling him. Instantly they called some other local hooligans for thrashing the complainant his father and his brother. Thereafter they all forced and pressurized to sign the on the papers threatening to face dire consequences if not signed acknowledging the possession of the plot by complainant they wished to give contrary to the agreement entered into by complainant and OP.
  16. Thereafter the complainant contacted the OP on several occasions through phone and personally requesting them to give the possession of the booked plot but all in vain.    
  17. That it is thereafter, the complainant made every possible attempt to persuade the Opposite Parties to at least refund his hard earned money although it was the Opposite Party who was negligent in collecting money from the Consumers even without having any authority for the same.
  18. That on 19.08.2019 the complainant wrote a Notice dated 19.08.2019 requesting the Opposite Party to refund his hard earned money but again to utter shock and surprise of the complainant even this notice was not replied by OP. Annexure A…
  19. That the opposite party has got illegally and unjustly enriched itself by forfeiting hard earned money of the Complainant without giving anything in return and right to own property as the property prices have gone up very high in past few years.
  20. Taking into consideration the detailed discussions and observations made supra, this Hon’ble Commission may kindly observe that the OP is guilty of deficiency in service and unfair trade practice.  Failure to stand by its commitment and withholding the money of the applicants/allottees is wholly unjust on the part of the respondent and it must be condemned in severest terms as they cannot be allowed to collect, earn and enjoy money by swindling with hard earned money of the prospective home-seekers and to play with their emotions. By their unprofessional attitude and alleged offer of plot at other sites the respondent has also smashed to smithereens his dreams of owning a plot in a place of his choice. In such circumstances there is no room for doubt that the respondent is guilty of unfair trade practice and had provided deficient services to the complainant.
  21. That it is also respectfully stated that by not refunding the amount to the complainant by the OPs, he was denied an opportunity of acquiring the plot elsewhere and due to none refund of the advance paid by him, the complainant suffered financial difficulty too.
  22. That the cause of action to file the present Complaint in favor of the Complainant and against the Opposite Parties arose on several occasions and counts. It firstly arose on 27.11.2018 when the complainant reached at Mini Secretariat Tehsil Sonepat Haryana for registration of sale deed but the OP got registered sale deed in respect of a different plot. Secondly on 08.2019 when the complainant wrote a letter dated 19.08.2019 to OP demanding back the consideration amount along but OP failed to reply the same too. Thereafter also on several occasions when the Opposite Party failed to refund the consideration amount to complainant or got registered the agreed plot by the complainant and OP. The cause of action is continuous in nature and is still arising as the Opposite Party has not refunded the hard earned money of the Complainant till date.
  23. That the Hon’ble Commission has the jurisdiction to entertain and try the present complaint petition as the opposite party has their office within territorial jurisdiction of this Hon’ble Commission and the cause of action also arose within the territorial Jurisdiction of this Hon’ble Commission.
  24. That the present complaint petition is within the limitation period as provided in the Consumer Protection Act 2019.
  25. That the requisite court fee has also been paid with the present Complaint.

 

PRAYER

In view of the above mentioned facts and circumstances the Complainant most respectfully prays to this Hon’ble Commission be pleased to hold the Opposite Parties indulged in Unfair Trade Practice and deficiency in services and further direct the Opposite Parties  jointly and severally to:-

  1. Refund a sum of Rs. 4,59,600/-(3,98,000/- against consideration of plot and Rs. 61,600/- against registration charges along with interest @ 18% from the date of payment to OP till realization.
  2. Pay Rs. 2,00,000/- (Two Lakh) for compensation against the mental agony and harassment caused by the Opposite Parties to Complainant.
  3. Pay Rs. 50,000/- (Thirty Thousands) against the cost of litigation.

                                                                                                                                                                                                                                           COMPLAINANT

Verified on this   day of    December  2019 that the contents of the above mentioned paras are correct and true to my knowledge and belief and no part of the same is false and nothing material has been concealed there from.

                                                                                                                                                                                                                                      COMPLAINANT

New Delhi                                       

Dated                        

(On Next and Separate Page ) 

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

District West Janak Puri New Delhi

CONSUMER COMPLAINT No. _____of 2020

IN THE MATTER OF:-

Name of complainant                                                                                                       ………… Complainant     

                  VERSUS

Name of Opposite Party                                                                                                        ……Opposite Party

AFFIDAVIT IN SUPPORT OF THE CONSUMER COMPLAINT U/S 35 OF THE CONSUMER PROTECTION ACT, 2019

I, XXX (Name of complainant ) S/o Sh. XXXXX R/o XXXXXXXXXXXXXXXXX Address do hereby on solemn affirmation state and declare as under:-

  1. That I am the Complainant above mentioned 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 me / 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 December, 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

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

S.NO.

PARTICULARS

 

PAGE NO.S’

    

1.

List of Dates and Events 

  
    

2.

Memo of Parties

  
    

3.

First Appeal  U/S 21 (a)(ii) with Supporting Affidavit

  
    

4.

Application for Exemption from filing the original/ true typed copy of the annexure/s with affidavit

  
    

5.

Certified copy of Impugned Order dated 15.09.2017 passed by Ld. State Commission in FA/XXXX/XXXX

  
    

6.

Annexure A1:- Copy of Complaint filed before State Commission with annexures   

  
    

7.

Vakalatnama of Appellant

  

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, 3rd  and 4th 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,3rd and 4th 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