Prem Narain ORDER
Prem Narain, (Presiding Member)
1. This first appeal has been filed by the appellant, Vinod Kumar Kataria against the order dated 18.4.2017 passed by the State Consumer Disputes Redressal Commission, Delhi (for short, 'State Commission') in Consumer Complaint No. 651 of 2016.
2. Brief facts of the case are that appellant/complainant had purchased the first floor of the property bearing No. RZ/F-51/A, Mahavir Enclave, New Delhi on 22.8.2012 from the opposite party and sale deed was executed in his favour. The possession of the flat in question was handed over to the complainant in October 2012. It was alleged that after shifting in the aforesaid premises, the complainant realized that the OP had used inferior quality material in the construction of the flat and noticed major defects. Based on this fact, the complainant filed complaint before the State Commission for refund of the total amount of purchase price amounting to Rs. 25,00,000/- alongwith Rs. 1,50,000/- as expense of sale deed. The State Commission, however, dismissed the complaint at the admission stage on the ground of limitation and on the ground that other occupants have filed a civil suit for illegal construction and the complainant may also join the same.
3. Hence, the present first appeal.
4. Heard the appellant in person and perused the record.
5. The appellant/complainant stated that right from the date of possession, he noticed various defects like, cracks in the walls of the flat etc. and they were intimated to the OP. The OP admitted deficiency of service on its part on 10.2.2013 and promised to rectify the same at the shortest time upto 28.2.2013. However, the OP did not attend it and then a notice dated 1.7.2014 was sent to the OP. However, the same was not replied by the OP. Thus, the cause of action has actually arisen on 1.7.2014. The State Commission has erred in calculating the period of limitation from the date of possession. The learned counsel further mentioned that the State Commission has relied on the decision of this Commission in Dr. Gopal and Another Vs. Deorao Ganpat Kaore and others (R.P. No. 1915 of 2015 decided on 11.12.2015). In this regard, the appellant submitted that the above judgment is not applicable in the present case. In the referred case the decision was taken on the report of Dr. Vinod Ganvir, who had carried out inspection in terms of the order of the District Forum where structural drawings and the stability certificate was submitted by a renowned structural designer Dr. (Prof) Basole, a retired Professor & HOD of Deptt. Of Civil Engineering, VNIT, Nagpur, whereas no such report is there in the present case but defects have been alleged by the complainant with proof. Moreover in the aforesaid case, the judgment of Yashpal Marwaha Vs. Pushpa Builders Ltd. MANU/CF/0228/2005 : (II (2006) CPJ 259 (N.C.) was referred as under:
"In Yashpal Marwaha (supra), the OP No. 1 admitted deficiency of service on its part and promised to rectify the same at the shortest time but had not done so. It was, therefore, held that the cause of action was a continuous one and still subsisting."
6. The learned counsel has pleaded that from the aforesaid observation, it is evident that if the builder has admitted deficiency and has promised to rectify the defects, the cause of action continues till the rectification is made. In the present case also the builder had promised to rectify the defects but nothing has been done by the builder. So, the cause of action continues and no delay can be imputed on the part of the complainant.
7. I have carefully considered the arguments advanced by the appellant and have examined the material on record. From the facts of the case, it is clear that sale deed was executed on 22.8.2012 and the possession was handed over in October, 2012. The complaint has been filed on 14.6.2016. The State Commission has relied upon the judgment of this Commission in Dr. Gopal and Another Vs. Deorao Ganpat Kaore and others (supra), wherein the following is observed:
"13. I have carefully considered the decisions relied upon by the complainant Dr. Gopal Bhutda. In none of the judgments, it has been held that the period of limitation in respect of patent defects will commence from a date later on the date on which the said patent defects comes to the notice of the complainant. No doubt, a builder is under an obligation to rectify the defects, if any, found in the house constructed by him, but if he fails to do so, the complainant is required to approach a consumer forum within two years from the date on which the said defect is noticed by him for the first time. In case he was prevented by sufficient cause from filing a complaint within the prescribed period of limitation, he must file an application seeking condonation of delay in filing the complaint.xxxxxxxxxxxx
"In Yashpal Marwaha (supra), the OP No. 1 admitted deficiency of service on its part and promised to rectify the same at the shortest time but had not done so. It was, therefore, held that the cause of action was a continuous one and still subsisting. However, in the present case, there is no such acknowledgement on the part of the petitioners and, therefore, the cause of action which accrued to the complainants, cannot be said to be a continuous or recurring cause of action."
8. In the present case also, the appellant has not produced any acknowledgment by the builder that he admits the defects and that he promised to rectify the same within a particular period. Thus, from the above observation of this Commission, it is clear that the cause of action could not be treated as continuing one. Moreover, even if we take the words of the appellant that OP had promised to rectify the defects by 28.2.2013, the complaint has been filed even after the period of limitation i.e. two years calculated from this date. The period of delay is to be counted from the knowledge of the deficiency. In fact, the cause of action has arisen on the date when the possession was taken by the appellant/complainant and it cannot be treated as extended by way of any correspondence between the parties.
9. Special periods of limitation have been prescribed under the Consumer Protection Act, 1986 for speedy disposal of consumer disputes. Hon'ble Supreme Court in the matter of Anshul Aggarwal Vs. New Okhla Industrial Development Authority, MANU/SC/1668/2011 : IV (2011) CPJ 63 (SC) has observed;
"It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer foras".
10. Hon'ble Supreme Court in State Bank of India Vs. M/s. B.S. Agricultural Industries (I) MANU/SC/0420/2009 : AIR 2009 SC 2210 has held that:
"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".
11. Relying on the above judgments of the Hon'ble Supreme Court and considering the facts of the case as examined above, I am of the view that the complaint was highly time barred and no application for condonation of delay was moved before the State Commission, therefore, the State Commission was totally justified in dismissing the complaint on the ground of limitation. Moreover, the State Commission has also noted that a civil case has been filed by the other occupants for the alleged illegal construction in the parking space by the opposite party and the complainant has been given liberty to join the same. If a matter is already pending adjudication in a civil court, the same cannot be considered by the consumer forum simultaneously. Hence, this part of the order of the State Commission is also justified.
12. Based on the above discussion, I do not find any merit in the appeal filed by the appellant and the appeal is accordingly dismissed at admission stage.
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