ORDER
APPEARED AT THE TIME OF ARGUMENTS
For the Appellant
:
Mr. Madhurender Kumar, Advocate with Mr. Bharat Bhushan Dharmani, Advocate For the Respondent : Mr. Sandeep Nasher, Advocate
PRONOUNCED ON : 1ST FEBRUARY
2018
O R D E R
PER DR. B.C. GUPTA, MEMBER
This first appeal has been filed under section 19, read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 10.06.2016, passed by the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in consumer complaint No. 90/2014, vide which, the said complaint was ordered to be dismissed on grounds of limitation as per section 24A of the Consumer Protection Act, 1986.
2. Briefly stated, the facts of the case are that the appellant/complainant Saroj Kharbanda filed the consumer complaint no. 90/2014, stating that she booked a residential plot in the Project Bigjo's City at Gannaur (District Sonepat) floated by the respondent/Opposite Party (OP) Builder. The tentative area of the plot was 250 sq. yd and its tentative cost was ₹15,68,750/-. The complainant stated that she had deposited a sum of ₹7 lakh with the OP Builder between the years 2005-2008, but the OP Builder deprived her of the possession of the plot, despite accepting about half the consideration. Vide letter dated 17.07.2008, the OP Builder informed the complainant that they had received the licence and necessary clearances from the appropriate authorities of the Government of Haryana and had commenced the development work at the site. It was also informed that the OPs were starting the process of allotment of plots and asked the complainant to deposit 50% of the amount by 31.07.2008, which included 20% of the amount at the time of registration, another 20% as first instalment and another 10% at the time of allotment, alongwith 25% of the total External Development Charges (EDC). Despite the complainant having deposited the amounts as stated in the letter dated 17.07.2008, the OPs failed to deliver the plot to the complainant. The complainant filed the consumer complaint in question, seeking directions to the OP Builder to handover physical possession of the plot in question, after receiving the balance amount for the plot and also to pay interest @18% p.a. on the amount already deposited with them and to give compensation of ₹15 lakh for causing delay in the delivery of the possession etc.
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3. The complaint was resisted by the OP Builder by filing a written reply before the State Commission, in which they stated that the complaint was not maintainable, as the matter was within the pecuniary jurisdiction of the District Forum and further, the complaint was barred by limitation as per section 24A of the Consumer Protection Act, 1986. It was further stated that since the complainant had not made any payment after 2008, the amount already deposited by them had been forfeited. It has, however, been admitted in the said reply that there was delay in the execution of the project due to error on the part of the Authorities to wrongly sanction the lay-out plans for the project.
4. The State Commission vide impugned order dismissed the consumer complaint on the grounds of limitation and stated as follows:-
"6 I have gone through the material on record and heard the counsel for parties on the question of limitation. The counsel for OP has relied upon decision of National Commission in Writ Petition No.2618/02 titled as C.H. Vittal Reddy Vs. the Manager, District Coop. Central Bank Ltd. and Ors. decided on 04.12.2002. Condonation of delay when it is the complaint has to be taken very seriously and that is why proviso to sub section (2) of Section 24A mandates recording of reasons. It must be understood that a suit filed in a Civil Court after the period of limitation prescribed under the Limitation Act has to be dismissed and there is no provision for condoning the delay on the ground of any sufficient cause being shown for not filing the suit within the period of limitation. This is the law which is in force since 1908 when the Limitation Act, 1908 came into force and same is the position of the Limitation Act, 1963. Sub section (2) of Section 24A is a departure to the well settled law that a suit beyond the period of limitation prescribed under the Limitation Act has to be dismissed. A Consumer Forum has, therefore, to guard itself against the misuse of sub-section (2) of Section 24A and should not be quick to condone the delay unless cogent and verifiable reasons exist to condone the delay.
7. The application for condonation of delay is dismissed. With this complaint also stands dismissed as barred by limitation"
5. Being aggrieved against the order of the State Commission, the appellant/complainant is before this Commission by way of the present first appeal.
6. During hearing before this Commission, it was argued by the learned counsel for the appellant/complainant that as per the demand made by the OP Builder from the complainant, she had deposited about 50% of the amount in question with them, but despite that, the
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possession had not been delivered to them. The learned counsel vehemently argued that no further demand had ever been raised by the OP Builder upon the complainant. Moreover, the OP Builder had not even cancelled the allotment made in favour of the appellant. It was, therefore, a case of continuing cause of action and there was no application of section 24A of the Consumer Protection Act, 1986 in the matter. In support of his argument, the learned counsel has drawn attention to an order passed by this Commission in, "Satish Kumar Pandey & Anr. vs. M/s. Unitech Ltd." [Consumer Complaint No. 427 / 2014 and allied cases decided on 08.06.2015], in which it has been held as under:-
"17. It was next contended by the learned counsel for the complainant that since the last date stipulated in the buyers agreement for giving possession of the flat to them expired more than two years ago the complaint is barred by limitation prescribed in Section 24A of the Consumer Protection Act. It is by now settled legal proposition that failure to deliver possession being a continuous wrong it constitutes a recurrent cause of action and, therefore, so long as the possession is not delivered to him the buyers can always approach a Consumer Forum. It is only when the seller flatly refuses to give possession that the period of limitation prescribed in Section 24A of the Consumer Protection Act would began to run. In that case the complaint has to be filed within two years from the date on which the seller refuses to deliver possession to the buyer. However, in the present cases the opposite party did not refuse possession of the flats to the complainants at any point of time and, therefore, the cause of action continues to subsist in favour of the complainants. Reliance in this regard may be place upon the decision of the Hon'ble Supreme Court in Meerut Development Authority Vs. M.K. Gupta, IV(2012) CPJ 12 where the Hon'ble Supreme Court held that in such a case the buyer has a recurrent cause for filing a complaint for non-delivery of possession of the plot."
7. Per contra, the learned counsel for the respondent stated that after the year 2008, the complainant had failed to deposit any further amount with them and hence, the possession of the property could not be delivered to her. Written arguments have also been filed on behalf of the respondent/OP Builder which are on record. It has been stated therein that the amount deposited by the appellant had been forfeited by them due to non-payment of the balance amount after 2008. It is further stated that it was upon the complainant to withdraw her money deposited with the Builder.
8. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
9. The version given by the appellant/complainant that she had deposited about half of the
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consideration money by 2008, has not been denied by the respondent/OP Builder. They have stated in their reply to the complaint that the complainant did not make any further payment after 2008, and never made any correspondence with the OP Builder. Moreover, the complainants had the option to withdraw their money from them after giving notice for one month, but they never raised any claim against them. The OP has admitted, however, that there was delay in the execution of the project, but the same was due to wrong sanctioning of lay-out plans by the Government Authorities. It is made out from these facts that the OP Builder were not able to meet their commitment for the delivery of the property to the complainant within time. Moreover, there is nothing on record to say, if they raised any further demand with the complainant, or made any attempt to cancel the allotment on the failure of the complainant to deposit further amount. The OP Builder have not been able to rebut the contentions raised by the learned counsel for the complainant that they had made payment of the necessary amount in accordance with the letter dated 17.07.2008 sent by the OP Builder to them, and no further demand had been received by them from the OP Builder. It is evident, therefore, that relying upon the order made by this Commission in "Satish Kumar Pandey & Anr. vs. M/s. Unitech Ltd." (supra), this is a case of continuing cause of action. As reproduced earlier, it has been stated in the said order that the period of limitation under section 24A of the Act starts only, after the seller flatly refuses to give possession of the property. In the present case, there is no such refusal to give possession on record and hence, it is a case of continuing cause of action. Moreover, it is a well-established principle that even if the complainant had failed to deposit further amount with the OP Builder, the latter had no right to forfeit the amount deposited with them. At best, they could have cancelled the allotment made in favour of the complainant and returned the amount deposited with them, after making certain deductions in accordance with the terms and conditions of the agreement. The plea taken by the OP Builder, therefore, that the complainant did not make any correspondence thereafter, is without any force, because they could have made correspondence with them asking them to deposit further amount etc. and to intimate to them about the status of their project.
10. Based on the discussion above, this appeal is allowed, the order passed by the State Commission is set aside and the matter is remitted back to the State Commission for deciding the consumer complaint on merits after giving a fresh opportunity to both the parties to lead evidence in their favour. There shall be no order as to costs.
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DR. B.C. GUPTA
PRESIDING MEMBER
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DR. S.M. KANTIKAR
MEMBER
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