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Judgment
These appeals arise out of single order of State Commission, hence decided by common order.
Appeal No. 36 of 2013 has been filed by opposite party and appeal no. 125 of 2013 has been filed by complainant against order dated 17-09-2012 passed by the Learned State Commission in Complaint No. 10 of 107 - Anil Balchandra Dighe Vs. M/s Shubham Commercial Enterprises Pvt. Ltd. & Ors., by which complaint was allowed.
Brief facts of the case are that the complainant booked Shop No. 3 for the construction to be carried out by opposite parties on 11.07.1996 for consideration of Rs.3,43,000/- and agreement was executed between the parties on 09.08.1996 and as per agreement possession of shop was to be delivered on 14.06.1997. Complainant made payment of Rs.2,05,800/- on different dates but still construction has not been completed and opposite parties have not given possession, obtained occupation certificate and completion certificate. Alleging deficiency on the part of opposite parties, complainant filed complaint before State Commission. Opposite parties resisted complaint and submitted that complainant was defaulter in making payment though construction of building is over and only finishing work is to be done. It was further submitted that Rs.1,37,200/- is still outstanding in the complainant so complainant has no locus-standi to file complaint. It was further submitted that complaint was barred by limitation and complainant has inflated figure of claim to claim jurisdiction of State Commission, hence complaint be dismissed. Learned State Commission after hearing both the parties allowed complaint and directed opposite party to hand over possession of shop or in the alternative market price of Rs.18,21,561/- along with compensation of Rs.5 lakhs, against which both parties have filed appeals.
Heard learned counsel for the parties finally at admission stage and perused the record.
Learned counsel for the opposite party submitted that inspite of specific plea of limitation learned State Commission has not decided this plea and committed error in allowing complaint, hence appeal be allowed and impugned order be set aside and matter may be remanded back to learned State Commission to decide complaint afresh after considering objection regarding limitation. On the other hand learned counsel for the complainant submitted that as complaint is within limitation, order passes by learned State Commission is in accordance with law, hence appeal of opposite party be dismissed.
As per complaint, parties entered into agreement for construction of shop on 09.08.1996 and possession was to be delivered on 14.06.1999. It is not disputed that complaint was filed in the year 2010. It is also not disputed that opposite party took specific plea in the written statement that complaint was barred by limitation so complaint was liable to be dismissed. Perusal of impugned order reveals that learned State Commission has not considered this objection whereas learned State Commission ought to have decided this objection and only after arriving to the conclusion that complaint was within limitation, learned State Commission should have proceeded further and decided complaint on merits.
As objection of limitation raised by opposite party has not been decided by learned State Commission, impugned order is liable to set aside and matter is to be remanded back to learned State Commission to decide complaint afresh after considering aforesaid objection.
Consequently, appeal no. 36 of 2013 filed by the appellant is allowed and order passed by learned State Commission in Complaint No. 10 of 107 - Anil Balchandra Dighe Vs. M/s Shubham Commercial Enterprises Pvt. Ltd. & Ors. is set aside and matter is remanded back to learned State Commission to decide afresh after considering objection of limitation raised by opposite party. As impugned order has been set aside appeal no. 125 of 2013 filed by the complainant for enhancement of compensation has become infructuous. Learned State Commission is directed to decide complaint within six months as complaint pertains to 20 years old agreement.
Parties are directed to appear before State Commission on 25.04.2016.