Vikas Kawatra vs M/s Universal Infrastructures & Anr

This appeal under section 19 of the Act 1986 is in challenge to the Order dated 02.12.2019 of the State Commission in complaint no. 924 of 2017.

We have heard the learned counsel for the appellant (the ‘complainant’) and for the respondents (the ‘builder co.’) and have perused the record including inter alia the State Commission’s impugned Order dated 02.12.2019 and the memorandum of appeal.

Briefly, the complainant booked a residential apartment comprising of 3 BHK with the builder co. for a consideration of Rs. 57.79 lakh. He paid an amount of Rs. 14.50 lakh i.e. 25% of the consideration vide a demand draft dated 29.10.2012. Receipt thereof was given by the builder co. on 05.12.2012. It is the case of the complainant that the builder co. failed to provide a 3 BHK flat to him and unduly and unjustly pressurized him to take a 4 BHK flat in its stead and also that there was no development at the site. The complainant ultimately demanded back the amount paid by him along with interest by an email dated 07.03.2017. He also sent a legal notice on 09.05.2017. Finally he filed a complaint before the State Commission on 24.10.2017.

The State Commission vide its impugned Order of 02.12.2019 has dismissed the complaint as being barred by limitation.

A perusal of its Order shows that the State Commission has taken 05.12.2012 as the date on which the cause of action arose. This is the date on which the builder co. issued its receipt for the amount of Rs. 14.50 lakh paid by the complainant. The State Commission has banked on the “own averments” of the complainant that the cause of action arose on 05.12.2012 as contained in para 14 of his complaint (“That the cause of action accrue the complainant on 5th dec 2012 when the complainant got the receipt of the booking of the 3 BHK apartment ….”). Taking the same as such to be the date on which the cause of action arose the State Commission has observed that the complaint was filed on 24.10.2017 much beyond the two-year limitation period prescribed under section 24A(1) of the Act 1986. It has also observed that no application for condonation of delay was filed.

Learned counsel for the complainant submits that the cause of action was subsisting when the complaint was filed on 24.10.2017. The complainant made the payment of Rs. 14.50 lakh for a 3 BHK flat on 29.10.2012 which was acknowledged by the builder co. on 05.12.2012. The same can in no way be taken as the date on which the cause of action arose. The builder co. failed to provide a 3 BHK flat to him and unduly and unfairly pressurized him to take a 4 BHK flat in its place. It also kept on sending payment reminders. After many telephonic requests the complainant finally sent an email on 07.03.2017 demanding back the amount paid by him along with interest. He then also sent a legal notice on 09.05.2017. The builder co. is still retaining his money. The cause of action is subsisting. There was no need for any application for condonation of delay since there was no violation at all of the limitation period. Even though the builder co. is still retaining his money he has been left remediless and helpless by his complaint being so dismissed as barred by limitation.

Learned counsel for the builder co. submits that as the complainant himself in para 14 of his complaint has asserted that the cause of action arose on 05.12.2012, the State Commission has rightly taken the same as such and has rightly dismissed the complaint on limitation. He however fairly admits that the builder co. still retains the amount of Rs. 14.50 lakh paid by the complainant.

We need not elaborate that the accrual of cause of action has to be deciphered from the relevant facts of the particular case, and not merely by what the complainant rightly or wrongly asserts.

In the instant case the payment of Rs. 14.50 lakh was acknowledged on 05.12.2012. The case of the complainant is that the builder co. was unduly and unjustly pressurizing him to change his allotment from a 3 BHK to a 4 BHK flat and there was no development on the site. The builder co. sent payment reminders to him on 12.04.2016, 31.01.2017, 27.04.2017 and 15.06.2017. It applied for the completion certificate on 12.10.2017. The completion certificate was yet to be issued by the competent authority. In such facts taking the date of acknowledgement of the amount paid by the complainant to be the date on which the cause of action arose was patently erroneous. By no stretch of imagination or estimate can the date of issuing receipt for such payment be taken as the date on which the cause of action arose. Even if the complainant had made a mistake in articulating his complaint the onus to take the eventual call was on the forum to ascertain the accrual of the cause of action from the facts and the evidence before it. It however rather chose to blindly accept such obvious mis-articulation of reckoning and to take the same as an infallible basis for computing limitation. It failed to appreciate and rather ignored that the complainant’s money was still lying with the builder co., there was specific allegation of the builder co. unduly and unfairly pressurizing the complainant to change his allotment from a 3 BHK to a 4 BHK flat, payment reminders were sent by the builder co. on 12.04.2016, 31.01.2017, 27.04.2017 and 15.06.2017, the complainant sent a formal email demanding refund of his money with interest on 07.03.2017, and failed to note that as such the cause of action was clearly subsisting on a continual basis on 24.10.2017 when the complaint was filed.

Though a complete disregard of the law of limitation will eventually frustrate and defeat the salutary purpose which inspires the enactment in this regard wherever provided, but it goes equally that the accrual of cause of action cannot be mechanically and erroneously taken on a patent mis-submission by the complainant when the facts and the evidence most obviously point otherwise.

In the instant case the cause of action was subsisting when the complaint was filed and there was no question of violation of the statutory period of two years provided under section 24A(1). The obligation and duty of the builder co. towards the consumer never ceased to exist. The acts and omissions on the part of the builder co. which gave rise to the wrong extended beyond a single completed act or omission and were of a continuing nature concomitantly causing continual legal injury de die in diem.

We may however also observe that even the very fact that the builder co. was indefinitely retaining the complainant’s money and indefinitely not making refund could in itself have been sufficient cause to justifiably condone the delay under section 24A(2) if needed, anything otherwise would have been tantamount to a travesty of justice leaving the complainant helpless and remediless. But, as already stated, any condonation under section 24A(2) was not required in this case.

Sequel to the above, we have no hesitation in setting aside the impugned Order dated 02.12.2019 of the State Commission with the remark that the complaint was unarguably within limitation and with the request that the State Commission may decide the substance of the complaint on its merits as per the law.

The parties are directed to appear before the State Commission on 19.05.2023.

We note that earlier on the builder co. failing to appear before it the State Commission had proceeded ex parte against it vide Order dated 14.12.2017. In appeal the State Commission’s said Order had been set aside by this Commission vide Order dated 18.09.2019. As such, even though the dispute has still to be decided on its merits before the forum of first instance the matter has come up twice before this Commission in appeal. We may therefore request the State Commission to kindly decide the case as expeditiously as possible and preferably within a period of six months from 19.05.2023.

The Registry is requested to send a copy each of this Order to the parties in the appeal and to their learned counsel as well as to the State Commission immediately. The stenographer is also requested to upload this Order on the website of this Commission immediately.