MAJ GEN V K VERMA Vs. VIKRAM KUMAR

JUDGEMENT

(1.) AGAINST the order dated 30.11.2006 of dismissal of the complaint passed by the District Consumer Disputes Redressal Forum, Gurgaon, the appellant -complainant has come up in appeal.

(2.) THE facts as set out in the complaint are that the complainant and his wife had purchased the ground floor apartment built on plot No. K2/21, DLF Qutab Enclave Complex, Phase -II, now known as DLF City -II, Gurgaon, from Vikram Kumar respondent -opposite party for a consideration of Rs. 8,00,000, as per registered sale -deed registered with the office of Sub -Registrar, Gurgaon bearing sale -deed No. 6530. The complainant had to incur additional expense of stamp duty of Rs. 1,00,000 and Rs. 18,000 as broker's fee. Thus, the complainant in total spent Rs. 9,18,000 for the purchase of the said property. At the time of sale the opposite party has shown to the complainant and his wife the original title deed in presence of broker in order to convince the complainant in respect of his title to the property. In the month of August, 2001 the complainant received summons from Debt Recovery Tribunal -I (DRT -I), New Delhi, in respect of original application No. 183/2001 dated 9.8.2001 filed by the State Bank of India, New Delhi v. M/s. Diwan Chand and Company Pvt. Ltd., New Delhi, in which the complainant was arrayed as respondent No. 5, while Vikram Kumar -opposite party was arrayed as respondent No. 3 for which the State Bank of India had claimed for the recovery of Rs. 2,27,28,539. Along with summons copy of petition was received on 28.8.2001. He also received the copy of the order -sheet dated 9.8.2001 in respect of the ex parte injunction granted against the complainant whereby he along with other arrayed respondents was restrained from alienating, disposing, transferring the plot or parting with the possession in any manner or creating third party interest in respect of the property purchased by the complainant because the said property was stated to have been mortgaged with the State Bank of Indore, New Delhi. The complainant was stated to be an illegal occupant of his residential property. Vikram Kumar -opposite party had created an equitable mortgage by depositing title deed of the property on 13.5.2005 with the State Bank of Indore branch at Gurgaon for obtaining certain credit facilities. The said mortgage -deed was extended on 20/21.10.1995. It was further found by the complainant that the opposite party had furnished two affidavits to State Bank of Indore on 2.7.1997 and 3.11.1997 representing that he was in actual and exclusive possession of the said property and being its owner, no third party interest had been created to the detriment interest of the Bank and on that basis continued to enjoy the credit facilities. The opposite party had completed the construction on the above stated plot. A compromise was arrived at between the Bank. M/s. Dewan Chand and Company (P.). Ltd. by Vikram Kumar by paying an amount of Rs. 1,19,05,000 to the Bank during the pendency of the proceedings before the DRI, New Delhi on 19.5.2005. Accordingly, the complainant was provided certified copy of the title deed of the mortgaged property while retaining the original title deed with it. It is the stand of the complainant that the opposite party had deliberately concealed the factum of the deposit of mortgage -deed of the property with the State Bank of Indore at the time of sale was effected by him in respect of the above stated apartment on 22.4.1996 and thereafter committed unfair trade practice. He suffered harassment and mental agony due to the acts of the opposite parties and had to face litigation proceedings before the DRT -I. He had also lodged FIR against the opposite party with the Police Station, Gurgaon for which he was charged under Section 420, IPC in case No. 298 of 2002 titled State v. Vikram Kumar. On these premises he claimed that direction be given to the opposite party to pay Rs. 3,00,000 on account of mental agony and harassment caused to him. The complaint was contested by the opposite parties. The opposite party filed appearance but failed to submit any reply despite several opportunities granted to him and on 5.5.2006 the defence of the opposite party was accordingly struck off. Thereafter, application was moved from the side of the opposite party seeking rejection of the complaint under Order 7 Rule II and Section 151 of the Code of Civil Procedure (hereinafter referred to as the Code) being time barred and also a separate application seeking permission to file the written statement on record with a prayer for condonation of delay on 4.7.2006, which was contested by the complainant. The District Forum after hearing both the sides and taking into account the material on record recorded a finding that the complainant came to know about the execution of the equitable mortgage of the property in question with the State Bank of Indore on 28.8.2001 when he had received the copy of the petition from the DRT -I, New Delhi. Thereafter, he lodged the report with the Police Station, Gurgaon in the year 2002 while the present complaint came to be filed on 25.8.2005. So to say after two years of the date of cheating and fraud committed by the opposite party and as no sufficient cause has not been explained for filing the complaint after two years so provided under Section 24A of the 'Consumer Protection Act, 1986 (hereinafter referred to as the Act, 1986), the complaint was barred by limitation and consequently dismissed the same on these grounds as per order dated 30.11.2006. Hence, the present appeal at the behest of the complainant.

(3.) THE appellant -complainant in person has been heard at length. None has chosen to appear to argue the matter on behalf of the respondent -opposite party.