Mahboob Alam Qureshi & Anr. v. TDI Infrastructure Pvt. Ltd.

1. The Petitioners assert that they booked a plot measuring 350 sq. yds. in a project called ‘TDI City’ offered by TDI Infrastructure (the Respondent) and deposited an amount of Rs. 5,42,500/- vide cheque dated 27th August, 2005 towards 20% of the basic price of the Plot which was required to be paid at the time of booking as per the schedule of payment. The Petitioners opted for option-II wherein they were required to pay 20% of the basic price at the time of booking, 10% at the time of issuance of allotment of plot and then 10% every two months from the date of allotment with balance 10% at the time of offer for possession. The Petitioners were to pay 10% of basic price i.e. Rs. 2,71,250/- on or before 8th August, 2006 when the allotment was to be made. However, the Respondent sent a letter as early as on 16th December, 2005 asking them to pay balance of Rs. 3,40,375/-. The said letter showed second instalment to be due on 10th December, 2005. The Petitioner approached the Respondent’s executive who told them not to worry and said that it was by mistake. Respondent again sent reminder dated 25th January, 2006 demanding Rs. 3,40,375/-. The Respondent cited financial constraint for issuing said reminder and persuaded the Petitioners to pay Rs. 1,40,000/- on 03rd February, 2006 through cheque and 200,000/in cash.

2. Respondent then issued revised communication dated 29th May, 2006 vide which balance due was shown as 10,16,160/- due on 10th February, 2006 and 10th April, 2006. The same included interest of Rs. 6590.87/-. On persuasion they again made payment of Rs. 2,00,000/- on 13th July, 2006 and Rs.375/- on 14th July, 2006. Another communication dated 27th June, 2006 showing amount due as Rs. 6,82,500/- was sent to the Petitioners. The Respondent allotted plot No.J-139 vide allotment letter dated 08th August, 2006 and showed balance of Rs. 14,03,312/-. Final reminder dated 05th September, 2006 showing balance of Rs. 16,95,070/- was also sent by the Respondents to the Petitioners. It is highlighted that it is only upon TDI’s advice and insistence, that the Petitioners paid TDI a total amount of Rs. 8,16,000/-in cash (Rs. Eight lakhs Sixteen thousand only/-) against which Kachchi receipts were issued by TDI but the same were not reflected as TDI wanted to clandestinely hide these payments from the records, intending not to show them to the government. Thereafter, on the insistence of the Petitioners, the Respondent agreed to adjust the said amount by reducing the rate of plot from Rs. 7750/- per sq. yd. to Rs. 6150/- per sq. yd and still the payment of Rs. 2,00,000/- paid in cash on 02nd February 2016 was not adjusted.

3. The Petitioners state that the Respondent unlawfully cancelled the allotment of their plot through a communication dated 13th December, 2012. In response, Petitioner No. 1 issued a legal notice on 4th September, 2014, which went unanswered. Petitioner No. 1 claims an initial intent to file a complaint under the Consumer Protection Act, 1986, in November 2014 but instead sought an amicable resolution with TDI, who allegedly offered a smaller plot in compromise. However, no resolution was reached, as Petitioner No. 2—the brother of Petitioner No. 1—was outside India at the time. By the time he returned, the smaller plot was no longer available, and the Respondent instead offered only a refund of the paid amount.

4. In the circumstances narrated above, on 2nd November, 2015, the Petitioners filed a complaint before the State Consumer Dispute Redressal Commission[1] seeking restoration of plot at original cost and interest @18% on the said amount and further compensation of Rs. 5,00,000/- towards mental agony and harassment. Along with the complaint, the Petitioners also filed an application for condonation of delay. In the said application, the Petitioners contended that although the Respondent had cancelled the allotment on 13th December, 2012, the cause of action did not fructify on the said date. The Petitioners were planning to file a complaint in November, 2014 but then they got a call from the Respondent to seek some resolution and thus the decision to file the petition was delayed. According to the Petitioners, the cause of action finally arose in August, 2015 when complainant met the Respondent to explore the possibility of better deal from the Respondent but failed.

5. In the above background, the State Commission at the outset examined the question of condonation of delay but did not agree with the Petitioners and dismissed the complaint filed by the Petitioners vide order dated 1st May, 2017. In further appeal before the National Consumer Disputes Redressal Commission,[2] the question of condonation of delay was examined again and rejected vide order dated 19th August, 2024, thereby confirming the order passed by the State Commission.

6. In the above background, the Petitioners have filed the instant petition under Article 226 & 227 of the Constitution of India, 1950[3] impugning the aforenoted two orders. On the issue of maintainability of the present petition, it is urged that since there is no further appeal remedy provided against the order passed by the NCDRC, while exercising appellate jurisdiction, the Petitioners are entitled to file a petition under Article 226 & 227 of the Constitution of India, 1950. To support this contention reliance has been placed on M/s Universal Sompo General Insurance Co. Ltd. v. Suresh Chand Jain and another.[4] On merits, it is contended that both the State Commission as well as the NCDRC have erred in not accepting the Petitioners’ case. There was in fact no delay in the matter and the application of condonation was filed by way of abandoned caution. They argue that the cause of action is a continuing one in the present case as the amount paid by the Petitioners, has not been refunded till date. Thus, there is no question of cause of action turning stale or being barred by limitation. “State Commission” “NCDRC” “Constitution of India” MANU/SC/0800/2023

7. The Court has considered the aforenoted contentions but is unpersuaded. The Petitioner’s reliance on the judgment of the Supreme Court, to contend that a writ petition against an order of the NCDRC must be entertained is misconceived. The Supreme Court ruling in Universal Sompo highlights that bypassing the High Court disrupts the hierarchy of judicial review established by law, which mandates that matters of this nature first be reviewed by High Courts under Articles 226 or 227 of the Constitution. Thus, undoubtedly, the Supreme Court has allowed the parties to first invoke the jurisdiction of the High Court under Article 226 & 227 of Constitution of India against such an order. However, this does not suggest that every NCDRC order is open to writ scrutiny in the manner of an appellate review. The legislative framework grants finality to the NCDRC’s appellate orders, indicating that writ jurisdiction should only be invoked in cases of gross arbitrariness, patent illegality, or a clear violation of principles of natural justice.

8. Thus, in light of the decision in Universal Sompo while this Court may entertain a writ petition under Articles 226 and 227 of the Constitution against a final order of the NCDRC, the principles governing the exercise of writ jurisdiction must be respected. The writ remedy is not intended to allow routine appellate scrutiny; rather, it should be invoked sparingly, only in instances where the order is grossly arbitrary or displays complete perversity. It is only in such exceptional cases that this Court may intervene through its writ jurisdiction.

9. In the instant case, none of the grounds raised by the Petitioners, nor the decisions rendered by the State Commission and the NCDRC, reveal any illegality or perversity warranting the exercise of this Court’s writ jurisdiction.

10. Furthermore, it must also be observed that the Petitioners’ contention that the cause of action is continuing one, is also legally incorrect. With the cancellation of the allotment, in the opinion of the Court, the cause of action stood crystalized. The Petitioners’ contention that their continuous requests or engagement with the Respondent extended the limitation period is both factually unsupported and legally untenable. Firstly, there is no evidence on record to substantiate any ongoing engagement or requests by the Petitioners that could have delayed the accrual of the cause of action. Unsupported assertions cannot be relied upon to circumvent statutory limitations. Secondly, under well-established legal principles, mere communication or attempted negotiation does not toll or extend the statutory period of limitation unless there is an express acknowledgment of liability by the Respondent within the meaning of Section 18 of the Limitation Act, 1963. The law is clear that limitation runs from the date the cause of action arises, and subsequent attempts to negotiate or resolve the matter informally cannot reset or extend this period in the absence of a clear, written acknowledgment of liability by the Respondent. Thus, the cause of action having crystalized in 13th December, 2012, the Petitioners’ complaint as on 2nd November, 2015 was clearly barred by limitation.

11. The issue on condonation of delay was also examined by the NCDRC having regard to the judgments of the Supreme Court on this issue, which have been dealt extensively in the paragraphs reproduced hereinbelow:

12. Having regard to the aforenoted reasoning given by the NCDRC, in the opinion of the Court, there is no infirmity that warrants intervention of the Court. Thus, this Court is not inclined to entertain the present petition and accordingly the same is dismissed along with pending application(s), if any.

SANJEEV NARULA, J OCTOBER 28, 2024