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Shri Ashok Kumar Sharma vs. Ghanshyam Hemadev dated 2013-01-11

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
FIRST APPEAL NO. 196 OF 2011
(From the order dated 20.12.2010 in CC No. C.C. No.03/24 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)
 
Shri Ashok Kumar Sharma
Plot No.73,Sector 17,
Koper Khairane, Navi Mumbai 400 709
Through Power of Attorney Holder of
Shri Sanjiv H. Sharma, Plot No. 73,
Sector 17, Koper Khairane,
Navi Mumbai 400 709                                         …         Complainant/Appellant
         Versus
Ghanshyam Hemadev
Res. at Last Apartment, 8th floor,
11-G, Mehta Road, Opera House,
Mumbai 400 007                                
M/s. Megha Properties Developers Pvt. Ltd.
C/335, Big Splash Turbhe Road, Vashi
Sector 17, Navi Mumbai 400 705,
Mahartashtra                                               …    Opp. Parties/Respondents
 
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
 
          For the Appellant   : Mr. Sunil K. Kalra & Mr. Vikram Gola, Advocates
          For the Respondents: Ms. Surekha Raman, Advocate
 
PRONOUNCED ON 11th January, 2013
 
O R D E R
 
MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
 
          This appeal has been filed by the complainant/Appellant against the impugned order dated 20.12.2010 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, ‘the State Commission’) in C.C. No. CC/03/24 – Ashok Kumar Sharma Vs. Ghanshyam Hemadev & Anr. by which complaint was dismissed.
 
2.       Brief facts of the case are that the complainant booked Shop No. 2 with the opposite party and made payment of Rs.7,46,182/- from time to time, but still possession has not been handed over to the complainant, hence, filed complaint for directions to the opposite party to hand over peaceful and vacant possession of Shop No. 2 or in the alternative another shop of the same size along with prayer for awarding interest, compensation, cost, etc.  Learned State Commission vide impugned order dismissed the complaint on the ground that after termination of contract there exists no relationship between the parties as the ‘consumer’ and ‘service provider’ and complaint is also time barred. 
 
3.       Heard the learned Counsel for the parties and perused record.  
 
4.       Learned Counsel for the appellant argued that as occupancy certificate has been issued in 2005, cause of action continued upto 2005 and complaint filed in 2003 is well within limitation and learned State Commission has committed error in dismissing complaint on the ground of limitation, hence, appeal may be accepted and order of State Commission may be set aside.  On the other hand, learned Counsel for the respondent argued that contract stood cancelled vide letter dated 11.12.1998 and further vide letter dated 14.12.1998 complainant asked for refund of deposited amount along with interest, hence, complaint filed in 2003 is clearly time barred and learned State Commission has not committed any error in dismissing complaint on the ground of limitation.
 
4.       Perusal of record reveals that complainant booked Shop No. 2 with the opposite party and made some payment. Ex.‘A’ reveals that complainant always made payments with delay and Rs.5,68,822/- remained outstanding against him upto 10.11.1998.  It is admitted case of the parties that opposite party issued last and final reminder in December, 1998 and asked complainant to deposit outstanding amount before 5.12.1998. It was also mentioned in reminder that in case he fails to deposit the outstanding amount, the allotment shall stand cancelled without any further notice. Complainant vide letter dated 14.12.1998 requested the opposite party to refund Rs.7,46,182/- with 24% p.a. interest within 15 days failing which the complainant shall take appropriate proceedings.  This notice was again replied by the opposite party vide letter dated 9.1.1999 in which complainant was directed to make all outstanding payments within 10 days failing which shop will finally stand cancelled without any further reference.  In reply to this letter again the complainant vide letter dated 19.2.1999 asked opposite party to comply with the directions mentioned in letter dated 14.12.1998. These documents reveal that complainant failed to make payment as agreed between the parties and opposite party failed to construct and give possession of shop to the complainants, allotment stood cancelled in December, 1998 which was reaffirmed in January, 1999 and as the complaint was filed in 2003, it is clearly time barred and learned State Commission has not committed any error in dismissing complaint being time barred.
 
5.       Learned Counsel for the appellant placed reliance on (2008) 7 SCC 585 – DLF Universal Ltd. Vs. Ekta Seth and Anr. in which allotment was cancelled due to non-payment of money but the Apex Court in exercise of powers under Article 142 directed the builder to return 50% of the forfeited amount to the allottee and further observed that this direction may not be treated as precedent.  This citation does not help to the complainant at all on the ground of limitation.  He also placed reliance on JT 2008 (10) SC 34 – V.N. Bharat Vs. D.D.A. & Anr. in which allotment was restored as show cause notice was never received by the allottee and DDA cancelled the allotment. This citation also does not help to the complainant because in the case in hand complainant admits receipt of notice given by opposite party and has prayed for refund of money with interest but has not taken appropriate steps within time and in such circumstances complaint being clearly barred by limitation has rightly been dismissed by the learned State Commission.
 
6.       Consequently, appeal filed by the appellant against the respondent is dismissed with no order as to costs.
                                                                                                    Sd/-
..……………………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
 
 
                                                                                                                        Sd/-
..……………………………
( SURESH CHANDRA )
MEMBER
 
 
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