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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dr. B.C. Gupta, Presiding Member and Dr. S.M. Kantikar, Member
Vora Home Makers Pvt. Ltd.
and Ors. —Appellants
versus
Ismail Hasan Damudi —Respondent
First Appeal No.1415 of 2016
(Against the Order dated 07/10/2016 in Complaint No. 448/2016 of the State Commission Maharashtra)
Decided on 13.12.2017
Held: It is a fact admitted by both the parties that booking of a flat was done by the complainant with the OP Builders by depositing a sum of Rs.5,75,000/- with them and an allotment letter dated 08.10.1994 for a built-up area of 2600 sq. ft. was issued in favour of the complainant. The receipt for the amount deposited, i.e., Rs.5,75,000/- was also issued by the OPs/appellant Builders. From the material available before us, it is not clear how both the parties remained passive for a sufficiently long period of time spanning over two decades. The OPs/appellant builders have stated in their reply dated 02.09.2013 to the legal notice issued by the complainant that they had abandoned the said project, because the land for the project was acquired by the National Highway Authority of India Limited for their proposed highway. However, the OPs/appellant Builders have not been able to provide any explanation, as to why they had not made any attempt to return the amount deposited by the complainant. At the time of arguments, they did say that they were prepared to return the amount deposited with suitable interest, but there is no explanation at all to say as to why they retained the money of the complainant for such a long time. On the other side as well, although it has been stated in the consumer complaint that the complainant contacted the OPs/appellant Builders, a number of times to know the progress of the work, no concrete assertion has been made anywhere to explain about the steps taken by the complainant for all these 20 years. As per their own version, the power of attorney holder visited the site in the year 2013 only, and then found that the construction had been made for the project. They have also not been able to provide any reasonable explanation as to why they took further time to file the present consumer complaint. In the given scenario, therefore, it requires to be ascertained whether the OPs/appellant Builders have been able to raise construction for the project, for which the booking was done in the year 1994. During the course of proceedings before the State Commission, the said factor can be checked by asking the parties to file evidence in their favour. In so far as the delay in filing the complaint is concerned, since the OPs/appellant Builders did not return the amount deposited by the complainant, we tend to agree with the conclusion arrived at by the State Commission in the impugned interim order that this is a case of continuing cause of action. Since the OPs/appellant Builders have taken the stand in their reply to the legal notice that the project was abandoned, they should have returned the money to the complainant at the earliest possible opportunity.
In the light of the facts stated above, we do feel that the case deserves to be decided on merits. The order passed by the State Commission condoning the delay in filing the consumer complaint is, therefore, upheld and the present appeal is ordered to be dismissed. There shall be no order as to costs. (Paras 6 to 9)
Result: Appeal dismissed.
Dr. B.C. Gupta, Presiding Member—This appeal has been filed under section 19 read with section 21(a)(ii) of the Consumer Protection Act, 1986 challenging the validity and correctness of the impugned order dated 7.10.2016, passed by the Maharashtra State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in consumer complaint No. CC/448/2016, filed by the present respondent against the Opposite Parties(OPs)/appellants, vide which, interim application for condonation of delay in filing the consumer complaint was allowed and the said delay was ordered to be condoned.
2. The facts of the case are that the complainant/respondent booked a flat in the project called Vora Township Phase-II, Village Ghod Bandar, district Thane, launched by the OPs/appellants builders and deposited a sum of Rs.5,75,000/- with them towards sale consideration of the said property. The total consideration for the property was stated to be Rs.23,40,000/- and an allotment letter dated 05.10.1994 was also issued by the appellant builder in favour of the complainant and receipt for the amount deposited was issued. It has been alleged in the consumer complaint No. 448/2016 filed by the complainant through his power of attorney holder Suresh Sutaria that despite receipt of more than 20% of the sale consideration, the OP builders failed to execute the agreement of sale with him, neither the possession of the said property was delivered to them. The complainant visited the office of the OPs a number to times to enquire about the progress of the work and he was assured always that the construction was likely to be started soon. It is further stated that on 05.01.2013, i.e., after about 19 years of making the initial deposit, the power of attorney holder Suresh Sutaria visited the site of the project and found to his surprise that the OPs had already constructed a building over there and also sold the flat which was allotted to the complainant. The power of attorney holder tried to contact the staff of the builder, but no satisfactory reply was provided to him. Alleging an act of fraud and deficiency in service on the part of the OPs, the consumer complaint in question was filed, seeking directions to the OP builder to give possession of flat admeasuring 2600 sq. ft. in the said project and to execute the necessary sale documents in their favour. It was also pleaded that if the OP builders was unable to provide the flat in question, they may provide an alternative flat to him or to pay a sum of Rs.67,62,668 being the compensation for not providing the flat. A further sum of Rs.15 lakh as compensation was also demanded. A miscellaneous application bearing no. MA/16/241, seeking condonation of delay in filing the consumer complaint was also made before the State Commission, stating that there had been a delay of 263 days in filing the complaint and the same should be condoned. The complainant stated that the cause of action had arisen to them when OP Builders sent response, as reply to the legal notice issued by him.
3. In their affidavit of reply filed before the State Commission, the OP Builders stated that the complaint was barred by limitation under section 24A of the Consumer Protection Act, 1986. There was no explanation as to why the complainant remained silent for about 19 years, i.e., from 08.10.94 till 02.09.2013. The complaint had, therefore, been filed after a delay of 21 years 7 months counted from the date 08.10.1994.
4. Vide impugned interim order, the State Commission condoned the delay in filing the complaint and fixed the same for admission hearing, saying that it was a case of continuing cause of action.
5. During arguments before us, the learned counsel appearing for the OPs/appellant Builders has drawn attention to the letter dated 08.10.1994 sent by the OPs/appellant Builders to the complainant in which it was stated that the Builders had allotted flat of 2600 sq. ft. to him in their proposed resident
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