INDO SALES AGENCY vs SABRI ENTERPRISES & ANR

This appeal has been filed by the appellant against order dated 26.7.2010 passed by State Commission in Complaint No. 174 of 2007 @Misc. Application No. 1962/2007- M/s. Indo Sales Agency Vs. Sabri Enterprises & Anr.; by which while dismissing application for condonation of delay, complaint was rejected.

Brief facts of the case are that complainant/appellant entered into agreement with opposite party/ respondent for development of property and as per terms & conditions of the agreement, opposite party was to hand over possession of premises to the complainant within 15 months from obtaining IOD from competent authority and also agreed to pay Rs. 81,484/- per month for delay in handing over possession. Opposite party obtained IOD on 19.6.2002 and opposite party was to hand over possession on or before October 2003. Opposite party obtained commencement certificate on 28.8.2002. It was further submitted that opposite party handed over part possession of premises of around 92.5 sq.mtrs. on 1.1.2005 and as such provided lesser area of about 29.4 sq. mtrs. It was further submitted that complainant came to know that opposite party obtained occupation certificate on 15.4.2005 though completion certificate has not been obtained by opposite party. Opposite party has also not paid liquidated damages. Alleging deficiency on the part of opposite party, complainant filed complaint before State Commission alongwith application for condonation of delay. Opposite party filed reply to application for condonation of delay. Learned State Commission after hearing both the parties dismissed application for condonation of delay and, in turn, rejected complaint against which this appeal has been filed.

Heard Learned Counsel for the parties and perused record.

Learned Counsel for appellant submitted that inspite of continuous cause of action on account of not handing over possession of agreed area and not paying liquidated damages, Learned State Commission committed error in dismissing application for condonation of delay which was filed as precautionary measure, hence, appeal be allowed and impugned order be set aside and complaint be treated within limitation and matter may be remanded back to State Commission for deciding complaint on merits. On the other hand, Learned Counsel for respondent submitted that order passed by Learned State Commission is in accordance with law, hence, appeal be dismissed.

It is not disputed that parties entered into Development Agreement on 3.10.2001 and possession was to be given within 15 months. It is also not disputed that possession of property was given by opposite party to complainant on 1.1.2005 and complaint was filed on 12.11.2007 alongwith application for condonation of delay.

In application for condonation of delay, it was mentioned that as far lesser area is concerned, cause is continuous one and as far liquidated damages, application for condonation of delay is being filed by way of abundant precaution. It was further submitted that Dr. Parmeshwar, partner of opposite party had expressly promised to make the losses good in terms of money, so looking into peculiarity of case, delay in filing complaint may be condoned. Opposite party resisted application and submitted that complaint is barred by limitation as agreement was entered on 3.10.2001 whereas complaint has been filed on 5.11.2007. It was further submitted that complaint has acquiesced to the acts/omissions (if any at all) and waived its rights and thus estopped from raising claim and no reasons have been given in the application for condonation of delay, hence, application be dismissed. Learned State Commission observed that as cause of action started when possession was received, it is not a continuous cause of action and no explanation has been given for condonation of delay so application is rejected.

Learned Counsel for appellant submitted that cause of action was continuous till completion certificate and occupation certificates are provided. He placed reliance on judgment of Hon''ble Supreme Court in Civil Appeal No. 3302 of 2005- Faqir Chand Gulati Vs. Uppal Agencies Pvt. Ltd. & Anr.; in which it was held that builder has to provide completion certificate as required by Municipal laws. Learned Counsel for appellant submitted that as completion certificate has not been obtained, case is continuous. He also placed reliance on judgment of Hon''ble Apex Court in - Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah & Anr., 2000 1 SCC 586; in which it was held that since the rights under the first agreement had not been given up and appellant was constantly under an obligation to provide a flat to the respondents and deliver possession thereof to them, the cause of action has to be treated as continuous cause of action, so, claim was not time barred. He also placed reliance on judgment of this Commission in Revision Petition No. 337 of 2011 Ghansi Ram Lal Shah Vs. Smt. Supriya Suhas Sarmalkar & Ors.; in which complaint was treated in limitation.

Perusal of aforesaid judgments reveal that in Ghasi Ram Lal Shah''s case , possession was not given and in Lata Construction''s case , possession of flat was not given. Aforesaid cases do not help to the appellant as in the case in hand, possession had already been given on 1.1.2005 though it may be for lesser area as alleged. Complainant was under an obligation to file complaint within a period of two years from receiving possession of the flat whereas complaint has been filed on 12.11.2007 which is clearly beyond two years. Learned Counsel for respondent has brought to my notice drainage completion certificate dated 2.3.2005 and building completion certificate issued by Architect and certificate dated 15.4.2005 issued by Municipal Corporation of Greater Mumbai regarding full occupation in which it was observed that building may be occupied on the condition that certificate under Section 270 A of Mumbai Municipal Corporation Act shall be submitted within three months. This permission was issued without prejudice to action under Section 305, 353 A of Mumbai Municipal Corporation Act. Thus, it becomes clear that Municipal Corporation had issued full occupation certificate on 15.4.2005 and complaint ought to have been filed within two year from this date whereas complaint has been filed on 12.11.2007 which is clearly barred by limitation.

Learned Counsel for respondent placed reliance on judgment of this Commission in Revision Petition No. 2179 of 2009- Maqbool Alam Ansari Vs. M.S.K. Mapara; in which complaint was treated as time barred as possession of flat was given though of lesser area on 31.8.2004 and complaint was filed on 31.10.2007. He also brought to my notice Regulation 6 & 7 of Development Control Regulations for Greater Bombay, 1991, which makes it clear that occupancy certificate is granted only after completion certificate and when occupancy certificate was granted on 15.4.2005, building stood complete in all respects and as complaint was not filed within two years from 15.4.2005, Learned State Commission has not committed any error in dismissing application for condonation of delay which does not contain any explanation for condonation of inordinate delay of about seven months.

Learned Counsel for appellant also submitted that part payment of liquidated damages of Rs. 5,000/- was made by opposite party on 1.4.2008. He admitted that this documents could not be placed before State Commission. When this documents was not placed before State Commission and no permission was taken from this Commission for taking it on record, this documents cannot be considered and on the basis of this documents, it cannot be held that opposite party made payment of Rs. 5,000/- towards liquidated damages to complainant on 1.4.2008.

I do not find any illegality in the impugned order and appeal is liable to be dismissed. Consequently, appeal filed by the appellant is dismissed.

Parties to bear their costs.