P.M.S. ENTERPRISES vs DELHI DEVELOPMENT AUTHORITY

THE present complaint has been filed by M/s. P.M.S. Enterprises and its partners Mr. Sandeep Gandotra, Pradeep Gandotra and Smt. Maharani Gandotra alleging negligence and deficiency in service on the part of OP-DDA.

THE facts of the case in brief are as follows: In the year 1984, the O.P. invited the public to purchase commercial flats at various places including Bhikaji Cama Place, New Delhi under the scheme known as First Self Financing Scheme (Commercial Flats) 1984. THE complainants vide application No. 4398 applied for Type I flat measuring 75 sq. mtrs. in Bhikaji Cama Place, New Delhi. THE complainants also deposited a sum of Rs. 20,000/- as required on 12.4.1984. According to the brochure, the complainants were required to pay the price of the flat in 5 equal instalments. THE complainants waited for the demand-cum-allotment letter. However, in March, 1989 they received a letter dated 2.3.1989 by which the O.P. informed the complainants that the flat allocated to them has been cancelled on account of failure to deposit the amount of instalments as demanded in letter dated 22.7.1985. According to the complainants, they have never received the allotment letter dated 22.7.1985 and hence they wrote to the OP-DDA against this cancellation on 12.4.1989. On the representation of the complainants, the O.P. agreed to restore the allocation of flat vide letter dated 9.10.1990 subject to payment of Rs. 5,000/- as restoration fee. O.P. also demanded Rs. 5,62,720.25 p. towards five instalments of the flat which became due together with 18% interest. According to the complainants, since the price of the flat was to be paid in 5 instalments, this demand of the O.P. for payment in lumpsum was unwarranted and was contrary to the terms of the scheme. THE complainant protested against the letter dated 9.10.1990 insisted for issuance of demand-cum-allotment. THE complainants deposited Rs. 5,000/- as restoration fee on 19.10.1990. However, the complainants did not deposit the amount of Rs. 5,62,720.25 p. as demanded by the O.P. along with interest. Instead, they protested vide letter dated 22.10.1990. It is stated by the complainants that no reply to the above letter was received. However, the O.P. vide letter dated 12.7.1992 again cacelled the allotment as no payment was made by the complainants. THE complainants again protested against the cancellation of allotment and when nothing was done they filed the present complaint in 1994, alleging deficiency in service and unfair trade practice on the part of OP-DDA. THE complainants demanded a compensation of Rs. 10,00,000/- towards loss of income from business along with 18% interest, compensation of Rs. 1,00,000/- for mental agony and sufferings and Rs. 25,000/- towards the cost of litigation. THE complainants also prayed for directions to the O.P. to issue the allotment letter in respect of the flat applied for and also to restrain the O.P. from illegally demanding 18% interest. THE complainants also prayed that in case suitable flat is not available at this stage, then they should be paid the difference between the price of the flat in December, 1986 and price on which now these flats are available in the market. In support of the complaint affidavit of Shri Sandeep Gandotra, partner of M/s. P.M.S. Enterprises along with copy of the brochure and the copies of the correspondence made with the O.P. and also copies of the challan of Rs. 5,000/- by which restoration fee was deposited have been filed.

In its reply/written version filed by the OP-DDA, it is stated the complaint is barred by limitation. It is also stated that the allotment was cancelled since the complainants failed to deposit the instalments of the flat. Subsequently, on the representation of the complainants, the allocation was restored subject to payment of Rs. 5,000/- as restoration charges but the complainants failed to deposit the demanded amount of Rs. 5,62,720.25 p. along with interest. Hence the allotment was again cancelled due to default of payment on the part of the complainants. It is stated that the complainant cannot take the benefit of their own wrong doings and the present complaint, filed by the complainants is frivolous, vexatious and mala fide. On behalf of the O.P., affidavit of Shri H.S. Dhankar, Director (CL) has been filed.

WE have carefully considered the evidence and documents placed on record by both the parties and have heared them at length. Most of the facts are not disputed except that the complainant disputes the receipt of allotment letter dated 22.7.1985. The main contention raised on behalf of the complainant is that they did not receive the demand-cum-allocation letter and hence they could not deposit the instalments and that for the first time they received the letter dated 2.3.1989 by which the allotment was cancelled. It has been argued on behalf of the O.P. that allotment letters are sent by registered post. Hence the presumption is that the complainant must have received the letter. However, the O.P. has failed to produce any evidence on this issue as the records are not available in their office. Thus, there is only oral evidence of the O.P. on this issue. Even if we may presume that allotment letter was not received by the complainants as alleged, still on the representation of the complainant the allotment was restored by O.P. subject to payment of restoration fee of Rs. 5,000/- vide letter of the O.P. dated 9.10.1990. However, it appears that the complainants have failed to deposit the demanded amount of Rs. 5,62,720.25 p. which had become due towards five instalments of the flat. It is true that the complainant deposited the restoration fee of Rs. 5,000/- on 19.10.1990 under protest but the complainant could not show any satisfactory reasons as to why the demanded amount of the price of the flat was not deposited by them. In this connection the argument of the complainants is that under the scheme, they were to deposit the price of the flat in five equal instalments but since the O.P. was demanding the total price in lumpsum, they did not deposit the amount and protested against it. WE are unable to accept this argument of the complainant. As per the record, the letter of allotment was issued on 22.7.1985 and the complainants were required to deposit the instalments as per schedule. Since the complainants failed to deposit the instalments, the allotment was cancelled vide letter dated 2.3.1989. Subsequently, on the request of the complainants, the allotment was restored subject to payment of restoration fee and also the price of the flat in lumpsum. Since the complainants did not deposit the demanded price of the flat with interest, the allotment was again cancelled. It thus appears that the complainants themselves were defaulters in making the payment and hence no deficiency in service or any unfair trade practice is proved against the O.P. Another contention raised on behalf of O.P. is that the complaint is time-barred as it has been filed after more than two years of restoration of the allotment vide letter dated 9.10.1990. It has been argued that on the representation of the complainants, the allotment was restored subject to payment of Rs. 5,000/- as restoration fee and the same was deposited by the complainants on 19.10.1990. However, since no payment was made by the complainants towards the price of the flat. hence the allotment was again cancelled on 28.7.1992. It has been argued that the present complaint has been filed on 8.8.1994 i.e., after more than two years of the cancellation of the second allotment. No application has been filed on behalf of the complainants for condonation of delay in filing the complaint and no satisfactory ground has been shown as to why the complaint was not filed within time and why the complainants kept silent for so many years. It has been argued that mere representations or writing letters to the O.P. will not extend the time of limitation as provided under the Act. We have found force in this contention. Allotment in this case was made in 1985 and the cancellation was done in 1989, restoration of allotment was made in 1990 and again allotment was cancelled in 1992. However, except making representations no steps were taken by the complainants to make payment to the O.P. towards the price of the flat. Mere sending of representations will not extend the time of limitation for filing the complaint. This Commission, in Rajinder Singh v. DDA, III (2004) CPJ 206=(2004) 8 CLD 825 (SCDRC) Delhi has held that the period during which the complainant continues writing letters to OP-DDA could not be considered for extending period of limitation allowed for filing complaint. In the instant case, the complaint has certainly been filed after more than two years and hence it is barred by limitation. In the above mentioned case, this Commission has also held that where the complainant was himself responsible for the delay in payment and on that account for cancellation of allotment, the O.P. could not be held responsible for any deficiency in service or unfair trade practice on its part. In the instant case it is apparent from the facts of the case that the complainants were themselves responsible for default in payment and hence no deficiency or unfair trade practice is proved against the O.P. For arguments sake, if the contention of the complainant, that he did not receive the allotment letter, is believed, still he failed to deposit the price of the flat after the restoration of the allotment. Thus the complainants were themselves defaulters. In view of what we have discussed above, the complainants have failed to prove any deficiency in service on the part of the O.P. Moreover, the complaint is barred by limitation. Hence the complaint is dismissed and the complainants are not entitled for any relief. No orders as to costs. Complaint dismissed.