This consumer complaint has been filed by the complainants Mr. Prem N. Mulchandani & Ors. alleging deficiency of service on the part of the opposite parties M/s. Runwal and Kunal Venture & Ors.. This complaint has been filed by ten complainants under Section 21 (a)(i) read with Section 12(1)(c) of the Consumer Protection Act, 1986. The complainants are the flat purchasers under the scheme of the opposite parties. Flat-purchaser agreements were executed for these complainants in the period from 2010 to 2014 and the possession was taken by these complainants in the year 2014. The complaint has been filed on 27.06. 2018.
2. Heard the learned counsel for the complainants at the admission stage. Learned counsel stated that the opposite parties have charged various amounts illegally and the present complaint has been filed for refund of those amounts as well as for registering the conveyance deed in favour of the opposite party No.6 which is the Cooperative Housing Society of the residents. Learned counsel stated that the opposite parties have charged society registration charges whereas the society has been registered by the residents themselves and therefore, the charges should be refunded to the complainants. Learned counsel further stated that the opposite parties have charged maintenance charges and the same should be now refunded to the complainants or to the society of residents. It has been further argued by the learned counsel that the opposite parties have charged price for parking spaces, whereas, the same is not required to be paid by the complainants and therefore, the complainants are entitled to get the refund of the same.
3. Apart from the prayers in respect of the refund of various amounts paid by the complainants another prayer has been made in the complaint that the opposite parties should be directed to execute and register the deed of conveyance in favour of the society i.e. the present opponent No.6. Compensation and cost for all the complainants has also been demanded in the complaint.
4. In respect of the delay in filing the present complaint, the learned counsel for the complainants stated that as the deed of conveyance has not yet been registered in favour of the society of residents, therefore, the cause of action for any deficiency in service on the part of the opposite parties is continuing and therefore, the complaint is not time barred.
5. I have given a thoughtful consideration to the arguments of the learned counsel for the complainants and have examined the record. First of all, it is seen that the possession was taken by all the ten complainants in the year 2014 and the complaint has been filed in June 2018. Therefore, the complaint is highly time barred as the cause of action for all the prayers for refund of different amounts paid by the complainants to the opposite parties arose in the year 2014 itself. For these prayers, the complaint should have been filed before the end of 2016. It is the duty of this Commission to first examine the issue of delay in filing the complaint as per judgment of Hon’ble Supreme Court in State Bank of India Vs. M/s. B.S. Agricultural Industries (I) AIR 2009 SC 2210 wherein the following has been held:
“8. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, `shall not admit a complaint' occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside”.
6. Moreover, the complainants are requesting for refund of those amounts which they have already paid to the opposite parties for getting their services at that time. Hon’ble Supreme Court in case of State of Punjab and Ors. Vs. Dhanjit Singh Sandhu, Civil Appeal Nos.5698-5699 of 2009 decided on March 14, 2014, has held the following:-
“21. ……………..The said demand was rejected by the Estate Officer by passing the reasoned order in compliance of the directions of the High Court. In the facts of the instant case, we have no doubt in our mind in holding that the ratio decided in Tehal Singh's case will not apply in the instant case. In our considered opinion defaulting allottes of valuable plots cannot be allowed to approbate and reprobate by first agreeing to abide by terms and conditions of allotment and later seeking to deny their liability as per the agreed terms.
25. It is evident that the doctrine of election is based on the rule of estoppel the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had.”
7. Once the complainants have obtained services on payment to the opposite parties and got the possession of the flats, it is now not open to them to seek refund of those amounts. Furthermore, as these amounts have already been paid by the complainants to the opposite parties and complainants want refund of the same, it becomes a case of recovery from the opposite parties for which recovery suit would be the legal remedy available to the complainants.
8. There is only one prayer in the complaint which is not related to the refund and that is in respect of directing the opposite parties to register the deed of conveyance in favour of the society of residents i.e. opposite party No.6. Once the society has been registered and it is prayed that the deed of conveyance be executed and registered in the name of the society, the society should have come forward for the same. Society should have been included in the array of complainants rather than in t
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he array of opposite parties. Therefore, this prayer cannot be considered in the present complaint, however, liberty can be granted to the complainants and the society of residents to file a complaint in this regard. 9. On the basis of the above discussion, it is seen that the present complaint is hopelessly barred by limitation and therefore, cannot be admitted and the same is dismissed at the admission stage. However, liberty is granted to the complainants to move to the Civil Court for recovery of amounts paid by them to the opposite parties if they are so advised. Liberty is also granted to the opposite party No.6 and the complainants to file fresh complaint for registering deed of conveyance in favour of the society if they are so advised.