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Vinod Kumar Kataria Vs. Arufa - (National Consumer Disputes Redressal Commission) (14 Sep 2017)

The period of delay is to be counted from the knowledge of the deficiency

MANU/CF/0579/2017

Consumer

Instant first appeal has been filed by the Appellant against the order passed by the State Commission. Appellant/complainant had purchased the first floor of the property 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.

From the facts of the case, it is clear that sale deed was executed on 22nd August, 2012 and the possession was handed over in October, 2012. The complaint has been filed on 14th June, 2016. The State Commission has relied upon the judgment of this Commission in Dr. Gopal and Another Vs. Deorao Ganpat Kaore and others, wherein, 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.

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. 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.

Special periods of limitation have been prescribed under the Consumer Protection Act, 1986 for speedy disposal of consumer disputes. Supreme Court in State Bank of India Vs. M/s. B.S. Agricultural Industries has held that, 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. It is the duty of the consumer forum to take notice of Section 24A of Act 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.

By placing reliance on judgments of Supreme Court and in facts of the present case, Commission is 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. There is no merit in the appeal filed by the Appellant and the appeal is accordingly dismissed at admission stage.

Relevant : State Bank of India vs. B.S. Agricultural Industries (I) MANU/SC/0420/2009

Tags : COMPLAINT   DELAY   MAINTAINABILITY  

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