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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dinesh Singh, Presiding Member and Karuna Nand Bajpayee, Member
Hemlata Lodi —Petitioner
versus
M/s. Amit Colonizers —Respondent
Revision Petition No.1231 of 2017
(Against the Order dated 20/02/2017 in Appeal No.1450/2016 of the State Commission Rajasthan)
Decided on 30.12.2021
Counsel for the Parties:
For the Petitioner: Nemo
For the Respondent: Nemo
IMPORTANT POINT
Questions of Fact – The aspects relating to the initiation of cause of action and its demise both are essentially questions of fact and shall vary from case to case in the light of the specificities of the particular cases.
Headnote:
Consumer Protection Act, 1986 – Section 21(b) [Consumer Protection Act, 2019 – Section 58(1)(b)] – Services – Real Estate – Allotment of Plot – Revision is filed assailing order of State Commission – Dispossession – Continuous Cause of Action – Whether the complaint was barred by limitation – Here it is very clear that the dispute was continuing and sustaining beyond 25.10.2005 i.e. the date of dispossession and even upto 14.12.2012 i.e. the date of the demand draft. Also, this was a case in which as averred 45 out of 56 installments had been paid by the complainant and her allotment had been cancelled and she had been dispossessed of the subject plot against her consent. The very nature and specificities of the case were such that to prevent any travesty of justice the matter needed to be adjudicated on merit – Thus, all this in itself was sufficient cause to condone the delay in limitation even if the date of dispossession i.e. 25.10.2005 was mechanically taken as the date from which to count the limitation period and even if it was to be overlooked that the dispute continued and sustained and the cause of action too survived and sustained beyond 25.10.2005 and definitely upto 14.12.2012 – District Commission erred in dismissing the complaint on ground of limitation – Also, State Commission on its part appears to have somewhat mechanically endorsed the view of the District Commission – The aspects relating to the initiation of cause of action and its demise both are essentially questions of fact and shall vary from case to case in the light of the specificities of the particular cases – In the present case, the aggrieved complainant had already parted with a substantial amount of money in favour of the builder and had also been handed over the possession of the plot in question earlier, it is also not difficult to see that the aggrieved lady did not tamely acquiesce in with her fate or with the conduct of the builder – Orders dated 27.10.2016 of the District Commission and dated 20.02.2017 of the State Commission are set aside. The District Commission shall decide the matter afresh on merit as per the law after affording opportunity to both sides. [Paras 6 to 8].
Result: Appeal allowed.
ORDER
This revision petition has been filed under Section 21(b) of the Act 1986 in challenge to the Order dated 20.02.2017 of the State Commission in appeal no. 1450 of 2016 arising out of the Order dated 27.10.2016 of the District Commission in complaint no. 166 of 2014.
2. Called out.
No one appears.
A letter dated 22.12.2021 has been sent by learned counsel for the petitioner seeking adjournment to a date after March 2022.
We notice that the complaint was filed in 2013, the District Commission passed its Order in 2016, the State Commission passed its Order in 2017, this petition was filed before this Commission in 2017. We are now in Dec. 2021. A perusal of the daily Orders reflects adversely on the way and manner this petition has been procrastinated. Rather than delaying the matter further we deem it appropriate to decide the case on the basis of the record.
3. Brief facts of the case, as emanating from the record, are that the complainant (the petitioner herein) had been conditionally allotted a plot of land by the builder (the respondent herein) in July 2003. As per her assertion she had paid 45 of the total 56 installments, she had yet to pay the balance installments and the development fee and other expenses. The 45th installment was paid in January 2005. The complainant alleges that after she had paid 37 installments the builder again started giving receipts numbered from 01 onwards but she actually paid 45 installments in all. As per the complainant an agent of the builder told her that there was no need to pay the remaining monthly installments and that the balance amount was required to be paid at the time of registration. According to the complainant she is illiterate and believed what the agent told her. Subsequently an agent of the builder informed her that for not depositing the remaining installments her allotment was being cancelled. As per the complainant she then went to the builder in order to deposit the requisite money with interest. However functionaries of the builder misbehaved with her and refused to accept the money. Her allotment was cancelled. She was dispossessed from the plot on 25.10.2005. Refund of an amount of Rs.35,587/- was made to her by demand draft dated 14.12.2012. She did not encash the draft but returned it to the builder by registered post. The complainant was aggrieved with the cancellation of her allotment by the builder. On 21.03.2013 she sent a legal notice to the builder. The builder sent a reply on 28.03.2013. Her dispute was not resolved. She then filed a complaint with the District Commission on 01.05.2013.
4. The District Commission vide its Order dated 27.10.2016 observed that possession of the conditionally allotted plot was taken back from the complainant by the builder on 25.10.2005 and as such the cause of action arose on 25.10.2005. As per Section 24A of the Act 1986 the limitation period for filing complaint is two years from the date on which the cause of action arose. The complaint was filed on 01.05.2013, more than five and a half years from 25.10.2007 and was therefore beyond limitation. The District Commission accordingly dismissed the complaint as being barred by limitation.
In appeal the State Commission endorsed the view of the District Commission, observing that:
“The Forum below has rightly held that as per case of the parties the possession of the land was taken from the respondent on 25.10.2005 hence, the cause of action has started on 25.10.2005 whereas complaint has been filed by her on 1.5.2013. Hence, the complaint has been filed after the lapse of limitation period.
In view of the above the Forum below has rightly held that complaint is not maintainable. The contention of the appellant as regard to the merit cannot be considered.”
5. Going by the facts as have been borne out from the record it is clear that even when the complainant was dispossessed from the plot on 25.10.2005 the dispute did not end but survived and sustained. Subsequent thereto
