SHARA INDIA PARIWAR HOUSING UNIT & ORS vs WING COMMANDER AKHILDEEP SACHDEVA

This revision petition has been filed by the petitioners against the order dated 15.07.2010 passed by the State onsumer Disputes Redressal Commission, U.T., Chandigarh (in short, ''the State Commission'') in Appeal No. 207 of 2009 Sahara India Pariwar & Ors. Vs. Wing Commander Akhil Deep Sachdeva by which, while dismissing appeal, order of District forum allowing complaint was upheld.

Brief facts of the case are that OP/petitioners had floated a scheme known as Sahara/Swarn/Rajat Yojna for providing housing/dwelling units to its members/customers in the year 2003-04. The Complainant/Respondent became member of Swarn/Rajat Yojna Scheme for allotment of 03 Bed Room Flat (Type C) at Chandigarh costing Rs.27,07,000/- by depositing Rs.1,35,000/- on 31.12.2004 being 5% of the total cost on 31.12.2004 vide receipt annexure C-1. As per advertisement, OPs were to hand over possession of the flat to the members of the first phase in the Sahara city by 2007, but when they did nothing, the complainant wrote a letter dated 12.1.2007 to OP No. 2, seeking status of construction activity. However, neither the complainant was allotted any housing unit despite numerous visits to the OPs and representations made, nor the amount so deposited was refunded to him. It was given in the advertisement dated 12.12.2004 that those members who would not get allotment of houses shall get back the booking amount before April 15, 2005 but the same was not done by the OPs. Alleging deficiency in service and unfair trade practice on the part of OPs, complainant filed complaint before District Forum. OP resisted complaint and submitted that complainant made advance payment of Rs.1,35,350/- on 31.12.2004 towards provisional booking of a housing unit in Sahara City Homes. No assurance about date of possession was given. It was further submitted that on account of some litigation, construction was delayed and OP cannot be blamed for delay in handing over possession. It was further submitted that complaint was barred by limitation. Denying any deficiency on their part, prayed for dismissal of complaint. Learned District forum after hearing both the parties, allowed complaint and directed OP to refund Rs.1,35,000/- along with compensation of Rs.80,000/- and litigation cost of Rs.5,000/-. Both parties preferred appeals before State Commission and learned State Commission vide impugned order dismissed both appeals against which, this revision petition has been filed.

Heard learned Counsel for the parties and perused record.

Learned Counsel for the petitioners submitted that as no allotment of house was made, petitioner did not fall within purview of consumer and inspite of complaint being barred by limitation, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

Perusal of record reveals that complainant deposited Rs.1,35,350/- with OP on 31.12.2004 as advance for booking of immovable property of Sahara India Commercial Corporation Ltd. and as per invitation to offer allotment was to be given on first come first serve basis of booking and it was further mentioned that all provisional members, who shall not get allotment of house, shall get back the booking amount upto 15.4.2005 and in case of allotment, booking amount shall be adjusted in the price of the house. Thus, it becomes clear that amount was received by OP only as advance for booking property, but afterwards, no allotment letter was issued in favour of complainant. When allotment letter was not issued, OP was under an obligation to return money by 15.4.2005.

Complainant sent letter dated 12.1.2007 to OP for knowing status of construction in which reference of earlier letter dated 20.12.2005 was also given. Admittedly, no unit was allotted by OP to the complainant and it appears that no reply to aforesaid notice was given by OP. As per paragraph 8 of the complaint and invitation to offer documents, in case of non-allotment of house, money was to be returned by OP before 15.4.2005. Thus, the cause of action arose on 15.4.2005 and complaint could have been filed only within two years from aforesaid date, i.e., before 15.4.2007. Complainant filed complaint No. 20/2009 before State Commission which was withdrawn by the order dated 13.7.2009. Thus, it becomes clear that complaint was filed in the year 2009 for the first time before State Commission whereas; complaint should have been filed by 15.4.2007. Complainant has not filed any application for condonation of delay and complaint being bared by limitation was bound to be dismissed by learned State Commission as well by learned District forum, before whom another complaint was filed after withdrawing complaint from learned State Commission. Both the Fora below have not considered this aspect inspite of objection by OP and complaint being barred by limitation was bound to be dismissed. Learned Counsel for the respondent could not point out how complaint was within limitation.

Learned Counsel for the respondent has drawn my attention towards order of this Commission in R.P. No. 74 of 2009 Sahara India Parivar Housing Unit & Ors. Vs. Malkait Singh Rahi in which revision petition filed by OP was dismissed against order of Fora below directing to refund him amount. Aforesaid judgment does not help to the complainant because complaint filed by complainant was barred by limitation. In the aforesaid judgment, we do not find any allegation regarding complaint barred by limitation.

Consequently, revision petition filed by the petitioner is allowed and impugned order dated 15.07.2010 passed by the learned State Commission in Appeal No. 207 of 2009 Sahara India Pariwar & Ors. Vs. Wing Commander Akhil Deep Sachdeva and order of District Forum dated 13.4.2010 passed in CC No. 1026 of 2009 - Wing Commander Akhil Deep Sachdeva Vs. Sahara India Pariwar & Ors. is set aside and complaint stands dismissed with no order as to costs.