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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dinesh Singh, Presiding Member and Karuna Nand Bajpayee, Member
Gurcharanjit Kaur – Appellant
versus
Sky Rock City – Respondent
First Appeal No.289 of 2019
(Against the Order dated 18/01/2019 in Complaint No. 31/2019 of the State Commission Punjab)
Decided on 13.9.2022
Counsel for the Parties:
For the Appellant:Mr. Amarjeet Singh, Advocate
For the Respondent: Nemo
IMPORTANT POINTS
(1) Possession - In the absence of both, possession as well as refund, the wrong on the part of the builder subsists, and as such the cause too perpetuates.
(2) Condonation of Delay - the very fact that the builder was indefinitely retaining the complainant’s deposited amount was in itself sufficient cause to justifiably condone the delay under section 24A(2), anything otherwise would have been tantamount to a travesty of justice, leaving the complainant helpless and remediless.
Headnote:
Consumer Protection Act, 1986 – S.19, 24A(2) - [Consumer Protection Act, 2019 – S.51] – Appeal against order of State Commission - Services – Real Estate – Allotment of Flat / Plot – Delayed Possession – Containing cause of Action – Condonation of Delay - Limitation - In the instant case, as has also been recorded in the admitted facts of the case by the State Commission, an amount of Rs.7,97,500/- was paid by the complainant to the builder in the year 2011. It is also admitted that neither possession was offered nor refund was made by the builder. As such there was continuing cause of action and the two year limitation period prescribed in section 24A(1) was not attracted. The State Commission in recording that “continuous cause of action is only if she seeks for possession” appears to have taken an erroneous view of the matter. ‘possession’ and in its stead ‘refund’, and vice versa, are alternative remedies. The cause sustains till possession as promised is delivered, however it gets extinguished if in the alternative refund is accepted. As such taking a view that continuous cause of action is only and only if possession alone is sought sounds specious since refund is the alternative remedy for possession and also the only plausible remedy if possession is not forthcoming or feasible. In the absence of both, possession as well as refund, the wrong on the part of the builder subsists, and as such the cause too perpetuates. Moreover in the present case where possession was no more feasible since after the cancellation of the licence in 2018 the project could not be legitimately completed and all possibilities or prospects of possession got extinguished, the only pragmatic solution left was that of refund – therefore, the very fact that the builder was indefinitely retaining the complainant’s deposited amount was in itself sufficient cause to justifiably condone the delay under section 24A(2), anything otherwise would have been tantamount to a travesty of justice, leaving the complainant helpless and remediless – Therefore, Commission sets aside the impugned Order dated 18.01.2019 of the State Commission and remand the case back to the State Commission with the observation that the complaint is not barred by limitation and with the request to decide the complaint on merit as per the law. [Paras 7,8].
Result: Appeal allowed.
ORDER
This appeal has been filed under section 19 of the Act 1986 in challenge to the Order dated 18.01.2019 of the State Commission in complaint no. 31 of 2019.
2. Learned counsel for the appellant (the ‘complainant’) is present.
On the previous date of hearing i.e. on 08.09.2022 learned proxy counsel had appeared for the respondent (the ‘builder’) and had requested for an adjournment. The same had been granted. However no one appears for the builder today.
3. Learned counsel for the complainant submits that an amount of Rs.7,97,500/- was paid by the complainant to the builder in the year 2011. The builder is still retaining the said amount. The complaint has been dismissed by the State Commission on the preliminary issue of limitation, the merits of the matter have not been adjudicated upon.
4. Notice on the appeal was ordered to be issued on 21.02.2019. The builder put in appearance on 11.11.2019. The ideal normative period for deciding an appeal as provided in section 19A of the Act 1986 (corresponding section 52 of the Act 2019) is 90 days of its admission. The case has been dismissed at the threshold of limitation, the substance of the matter has not been looked into on its merits. The appeal was listed for ‘final hearing’ on 08.09.2022 when adjournment was sought on behalf of the builder and is again likewise listed today. In such circumstances we deem it just and appropriate to decide the matter on the basis of the record after hearing the learned counsel present.
5. We have perused the record and have heard the learned counsel for the complainant.
6. The learned counsel submits that an amount of Rs. 7,97,500/- was deposited by the complainant with the builder in the year 2011. The builder was dutybound to offer possession of the subject unit or to make refund of the deposited amount. Because neither possession of the subject unit was offered nor refund of the deposited amount, with or without deduction, with or without interest, was made, there was continuing cause of action. When the deposit was made in 2011 the builder had a licence under the relevant state legislation i.e. Punjab Apartment and Property Regulation Act, 1995 (PAPRA). However, the said licence was cancelled in 2018 after which there was no question of the builder legitimately being in a position to complete the project and offer possession and the complainant was left with no other alternative but to ask for refund and she filed her complaint in 2019.
7. Section 24-A(1) of the Act 1986 provides for a limitation period of two years from the date on which the cause of action arose. Section 24A(2) provides for condoning delay where sufficient cause is shown to the satisfaction of the forum.
In the instant case, as has also been recorded in the admitted facts of the case by the State Commission, an amount of Rs.7,97,500/- was paid by the complainant to the builder in the year 2011. It is also admitted that neither possession was offered nor refund was made by the builder. As such there was continuing cause of action and the two year limitation period prescribed in section 24A(1) was not attracted. The State Commission in recording that “continuous cause of action is only if she seeks for possession” appears to have taken an erroneous view of the matter. ‘possession’ and in its stead ‘refund’, and vice versa, are alternative remedies. The cause sustains till possession as promised is delivered, however it gets extinguished if in the alternative refund is accepted. As such taking a view that continuous cause of action is only and only if possession alone is sought sounds specious since refund is the alternative remedy for possession and also the only plausible remedy if possession is not forthcoming or feasible. In the absence of both, possession as well as refund, the wrong on the part of the builder subsists, and as such the cause too perpetuates. Moreover in the present case where possession was no more feasible since after the cancellation of the licenc
