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Anthony H. Silva Vs. Hermonie Mary Salazar - (National Consumer Disputes Redressal Commission) (10 Jan 2018)

Complaint cannot barred by limitation, where there is case of continuing cause of action



Instant first appeal has been filed under Section 19, read with Section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order, passed the State Commission. The Respondent/complainant, filed the consumer complaint before the State Commission, saying that, she alongwith her siblings were absolute owners of agricultural land measuring 4972.9 sq. mtr. alongwith structures standing thereon, at village Kondivata, Taluka Andheri East at Bombay suburban.

The Opposite Party (OP) builder/Appellant, approached them with a proposal to take over the said land on "as is where is" basis and develop the same, by settling with the persons in occupation of the structure on the said land at his own cost and expenses and after obtaining necessary permissions and sanctions from the concerned authorities. On 7th November, 87, an agreement was entered between the complainant and four others on one side and the OP Builder on the other side, according to which, the developer was supposed to provide flats to the 5 owners, including the complainant for a total area of 8500 sq. ft. and sell the rest of the flats to various other persons and appropriate the sale proceeds thereof. The flats were to be provided to the complainants on ownership basis. It is alleged that, the developer completed the construction of the building, but failed to put the complainant in possession of the flat, to which she was entitled as per the terms and conditions of the agreement. The main issue that arises for our consideration is whether the consumer fora had the jurisdiction to deal with the consumer complaint in question and that whether the consumer complaint was barred by limitation under section 24A of the Consumer Protection Act, 1986.

In "Bunga Daniel Babu versus M/s. Sri Vasudeva Constructions & Ors." the Apex Court brought out clearly that, in cases where development is made by a developer on the property provided by the land owner, and in lieu of that a certain portion of the developed property is to be provided to the land owner, the Builder does come under the definition of 'service provider' vis-à-vis the land owner and hence, the land-owner does come under the definition of consumer. There is only one rider provided in the matter that the land-owner should not be an active participant in managing the affairs of the builder. In the present case, it is made out that the complainant alongwith her siblings made her property available to the OP and she had no role in the management of the affairs of the Builder. Relying upon the judgment of the Apex court in "Bunga Daniel Babu versus M/s. Sri Vasudeva Constructions & Ors.", therefore, the complainant does fall under the definition of 'consumer' vis-à-vis the OP Builder. It is held, therefore, that the complainant is a consumer vis-à-vis OP Builder and hence, the consumer fora had the jurisdiction to handle the consumer complaint in question.

The Appellant/OP has stated that, the agreement between the parties was entered in the year 1987 and according to the same, the property was to be provided to the complainant within a period of 3 years. However, it is their own version that they offered the possession of the property to the complainant in or around the year 1994 only, meaning thereby that they failed to take action in accordance with the terms and conditions of the agreement. It is also the case of the OP that they provided flats having built-up area of 950 sq. ft. each to the land owners at a different locality in lieu of built-up area of 1700 sq. ft. each to be provided under the agreement dated 07.11.87. The allegations levelled by the complainant, therefore, that the OP failed to provide her a flat, having area of 1700 sq. ft. as promised, is true. This would, therefore, be a case of continuing cause of action till the flat is provided to the complainant as per the agreement between the parties. Even if the complainant failed to file the consumer complaint within a period of 2 years as prescribed under Section 24A of the Act, she cannot be debarred from filing the same after the expiry of the said period, as she cannot be denied the offer of flat in terms of the agreement. The complaint was not barred by limitation, as it is a case of continuing cause of action.

Vide impugned order, the State Commission directed the OP to handover the possession of the flat or flats having aggregate area of 1700 sq. ft. to the complainant in terms of the agreement dated 07.11.1987 and also to provide compensation of 50,000/- for mental agony and 10,000/- as cost of litigation. There is no infirmity or illegality in the said order, which may call for any interference in the exercise of the appellate jurisdiction. The present appeal is, therefore, dismissed and the order passed by the State Commission upheld.

Relevant : Bunga Daniel Babu versus M/s. Sri Vasudeva Constructions & Ors.


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