TIME PROPERTIES AND PROMOTERS ETC Vs. RAKESH JAIN

JUDGEMENT

(1.) THIS is an appeal against the order of the State Consumer Disputes Redressal Commission, Delhi, (State Commission) dated 12th February, 1994.

(2.) FACTS in brief leading to litigation between the parties are as under: The appellant Nos. 2 and 3 are carrying on business of builders under the name and style of appellant No. 1. The respondent booked space i.e., two shops/Offices Nos. 1 and 8 in the said complex to be built by the appellants and deposited with the appellants a sum of Rs. 48,000/- on 11th August, 1983 at the time of booking the space in the building to be constructed by the appellant at 5, Community Center, Wazirpur Industrial Area, Delhi. The balance amount, it is alleged, was payable, in instalments depending upon the progress in construction and handing over of possession of the said shops. The appellants, it is alleged, assured the respondent that possession of the shop will be given within two years from the date of deposit of the said amount. However, no constructions commenced on the said plot inspite of several reminders from the respondent. Ultimately, the appellants informed the respondent despatched, in December, 1986 that there is some litigation going on between the builders and the D.D.A. and they have not yet got even the possession of the plot to be built upon as a consequence where of they are unable to deliver the possession of the space. The said letter bears no date. Appellants, however, offered to refund the amount received from the respondent. That resulted in the respondent writing their letter of 18th January, 1987 to the appellants requesting them to refund the said amount together with interest at the rate of 24% p.a. with monthly rests. No such payment, however, was made by the appellant Builder. Having failed to recover the amount or the space, the respondent approached the District Consumer Disputes Redressal Forum. The respondent did not get the refund of even the principal amount. The position as prevailed at the end of 1988 was that the builder did not have any plot. The respondent had claimed his money together with interest but neither any money had been paid by the Builder/appellant nor any reply was given to that letter. On 14th January, 1989, actual physical possession of the plot was delivered by the D.D.A. to the appellant. Ultimately, the respondent filed a complaint on 23rd December, 1992. The appellants did not reply to the letter of the respondent at all. The perusal of the two letters shows that the appellant builder had given the option to the respondent to take back his money which was deposited at the time of booking the space, if he, so desired. This implies that in case the party did not want the refund, his claim to the building and the space whenever constructed continued to subsist. However, the respondent instead of accepting that offer as it was, made a counter proposal seeking refund of Rs. 48,000/- together with interest as noticed above.

(3.) THE appellant had raised only the plea of limitation which was decided against the appellant after noticing that the appellant had left the choice to the respondent to take back the principle amount only and that the counter proposal of the respondent was also not replied to by the appellant which implied that the original contract continued to subsist and keeping in view the fact that in case of sale of immovable property time is not the essence of the contract unless specifically provided in the contract itself. There is no infirmity in the impugned order. The proceedings before the State Commission cannot be described as a suit and as such the provisions of Section 3 of Limitation Act could not be strictly applied. Section 24-A of the Consumer Protection Act is considerably different from Section 3 of the Limitation Act which does not admit of any exception while in the proviso to Section 24-A, there is scope provided for condonation of delay. No other point was raised or argued before us. Irrespective of the provisions of the said sections we do not consider that the conclusions reached by the State Commission on the question of limitation suffer from any legal infirmity, and, therefore, we find no merit in this appeal. The same is dismissed with no order as to costs. Appeal dismissed.