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Judgment
A. P. Sahi, President Member
IA/16709/2023
Heard learned counsel for the appellants.
There is a reported delay of 31 days in filing of the appeal.
The explanation given and the cause shown in the delay condonation application is sufficient and the delay is condoned. The appeal is treated to have been filed within time.
Appeal
The facts leading to the filing of the complaint are set out in the impugned order dated 19.09.2023 and are therefore not being repeated.
On merits of the appeal in this case, the appellants promised to hand over possession of a constructed premises for which a consideration as stated was settled to the tune of Rs.56,76,100/-. It is not disputed that the payment of Rs.28,38,050/- was made by the complainants and has been received by the builder/ appellants. The schedule for the payments and construction was indicated as two years and a letter is also stated to have been addressed to the complainants on 28.03.2015, stating that the excess amount of Rs.1,50,000/- would be returned on or before 06.04.2015. That was not complied with, neither the construction proceeded nor any offer of possession was made. This compelled the complainants to file a complaint (CC/119/2017) on 23.06.2017 before the State Commission.
The written version of the appellants took the objection that the cause of action had arisen to the complainants for approaching the consumer forum long back and therefore the complaint was beyond two years of the limitation prescribed, hence the complaint would be barred by limitation and deserves to be dismissed.
There is no dispute on any other fact or other issues raised and it is only this defence which was taken in the written version.
The State Commission came to the conclusion that the builder/ appellants had violated the terms of the agreement and refused to deliver the flat and therefore the claim deserves to be allowed as deficiency in service is established.
On the issue of limitation, the State Commission recorded a finding that so long as the builder/ developer continues to remain deficient in the promises or raising the constructions or deliver the property, the complaint was very much maintainable and was within limitation.
In addition to the aforesaid finding of the State Commission, what is relevant is that admittedly on 28.03.2015 a communication was sent by the appellants to the complainants promising to pay the excess amount of Rs.1,50,000/- before 06.04.2015, which was also violated. The complaint was filed after the expiry of two years, in June, 2017. Learned counsel has vehemently urged that this clearly travels beyond two years of the period of limitation as envisaged under Section 24 A of the Consumer Protection Act, 1986. The aforesaid argument does not appeal to reason to be entertained in as much as there was a continuing cause of action and the harassment caused to the complainants has been categorically recorded by the State Commission about which there is no denial. The complaint has been filed promptly in a close proximity of two years from the last cause of action on 06.04.2015. The cause undoubtedly was a continuing cause. The appellants/ builder cannot be allowed to walk away with the huge amount that is already admitted to have been received and the deficiency in service is established. Consequently, this appeal does not deserve to be entertained on the grounds as raised and the defence taken before the State Commission. The appeal lacks merits and is accordingly rejected.