Sudip Ahluwalia, Member
1. The present Revision Petition has been filed by Petitioner/ Complainant against the impugned Order dated 09.06.2020 passed by the State Consumer Disputes Redressal Commission, Chhattisgarh in Appeal No. 178 of 2020, vide which the Appeal filed by the Petitioner was dismissed.
2. Brief facts of the case are that the Respondents developed a residential colony called “Green Earth City” in Chhattisgarh. The Complainant entered into an agreement with the Respondents to purchase a Flat in the colony and paid the entire consideration amount. The Sale Deed was executed and registered, and the Complainant took physical possession of the Flat on 20.12.2014. However, the Complainant faced several deficiencies and issues with the maintenance of the building and allied services, despite having paid a maintenance fee of Rs. 30,000/- for three years. The Respondents failed to provide the two designated parking spaces that the Complainant had paid for, and a Club House which was not constructed despite the Complainant paying Rs. 20,000/- for a non-transferrable club membership. The Complainant further paid Rs. 30,000/- for electric meter connection charges, but no separate electric connection or meter was ever provided. The Respondents calculated the monthly electricity charges based on a sub-meter reading installed by them, and corresponding charges were collected from the Complainant and other residents of the Society. The Complainant repeatedly made requests for rectification of the said issues to the Respondents but to no avail. In October 2017, the Respondents issued an undated final Notice stating that the electric connection of the residents would be terminated and that they had to seek a No-Objection Certificate and apply for a separate electricity connection. The Complainant and other residents preferred a representation before the Sub-Divisional Magistrate, Patan, District Durg, fearing that their electric connections might be severed; the Respondents in return submitted before the Sub-Divisional Magistrate that electric meters have already been installed. Aggrieved by the actions of the Respondents, the Complainant filed his Complaint before District Forum, Raipur.
3. The District Forum vide its Order dated 05.02.2020 dismissed the Complaint for being time barred by limitation. The relevant extracts of the Order of the District Forum are set out as below –
“Issue No. 1
9. Complainant has submitted that the cause of action of the complaint is that in October 2017, complainant was informed for the first time by the respondent that he is not going to spend the amount of Rs 30,000/- (Rs. Thirty thousand), recovered from the complainant under the head of Electricity Meter Connection Charges, on this head. Therefore cause of action arose in October, 2017. In this complaint, complainant has stated about eight companies, including the damage to door of balcony, repair of lift and door, light off, security problem, absence of current in fan, fault in tube light point, non-availability of street light, less flow of water in toilet tap, defect in the tap of wash basin etc. All the above-said complaints related to the period after 04.07.2015. Complainant has stated that the registry of the Flat in question was done on 07.03.2014 and as per the document Exh. C-23, filed by the complaint, possession of flat was handed over on 20.12.2014 and as per Exh. C-23, complainant has taken over this Flat in perfect condition after full satisfaction. Since, it is clear from the complaint of complainant that complaints of complainant are related to the period after 04.07.2015, therefore in these circumstances, no clear statement and document has been provided to show that after taking over the possession, complainant was responsible for maintenance of the flat in dispute. If there was any complaint related to the flat, at the time of taking over possession of flat, then cause of action for the complaint was within 2 years’ period from the date of taking over the possession. In this manner, cause of action for the complaint arose on 20.12.2014 and the period of filing of complaint was up to 19.12.2016. However this complaint has been filed by the complainant on 31.10.2017, which is barred with limitation according to section 24 (A) of the Consumer Protection Act, 1986. Therefore, Issue No. 1 is decided as “No”.
Issue No. 2
10. Since the complaint has not been filed within the period of limitation, therefore merits of the case are not being taken into consideration. Therefore findings on this Issue are – Complaint is barred with limitation therefore issue of deficiency in service need not be decided.
Issue No. 3 (Relief and costs)
11. In view of above, complaint of the complaint, being barred with limitation, is dismissed.
Complainant and Respondents will bear their respective costs.”
4. Aggrieved by the Order of the District Forum, the Petitioner filed hisAppeal before the State Commission. The State Commission dismissed the Appeal vide the impugned Order dated 09.06.2020. The relevant extracts of the impugned Order are set out as below –
“On perusal of the relief clause as in part of the complaint, it appears that barring sub para (87) of the para 17 of the relief clause of the complaint, other reliefs were not for the maintenance part. Undisputedly, the possession of the flat was taken by the appellant/complainant on 20.12.2014. With this , under the provisions of Section 24A of The Consumer Protection Act, 1986, the limitation runs only for 19.12.2016 not otherwise. If for the part (37) of the para 17 of the relief clause of the complaint, whenever, the OPs have not done necessary maintenance of the flat, nobody stopped the complainant to file complaint against the OPs before the concerned District Forum.
After appreciation of the entire facts and pleadings, the concerned District Forum rightly held that the complaint is barred by limitation as there was no any application for the condonation of delay in filing the complaint, which is mandatory part of provisions of Section 24A of The Consumer Protection Act, 1986 and in the entire provisions, unless the complainant shows sufficient reason for non-filing of the complaint within limitation and the concerned District Forum condones such delay, any complaint shall not be taken for consideration unless the concerned District Forum gives reasons for condonation of such delay. No any illegality has been committed by the concerned District Forum by dismissing the complaint of the complainant as barred by limitation; hence we hereby dismiss the appeal filed by the appellant/complainant at motion stage itself. The appellant/ complainant shall bear cost of this appeal himself.
Copy of this order be provided to the appellant /complainant forthwith free of cost…”
5. Aggrieved by the Order of the State Commission, the Petitioner filed the present Revision Petition raising the following issues –
a. That the State Commission erroneously went to hold that the District Forum was correct in holding that the complaint was barred by limitation. It is submitted that the cause of action for filing the present complaint first arose on the date on which possession was delivered to the Petitioner, it further continued to arise on every event of such continuous deficiency of service;
b. That this Hon’ble Commission in “Rasheed Ahmad Usmani & Ors. DLF Ltd. & Ors., C.C. No. 1055 of 2015, decided on 02.07.2019.” while discussing the meaning of ‘cause of action’ held that on a conjoint reading of Section 2(b) and (c), it is clear that a consumer who has an existing right under the service contract is entitled to claim deficiency in service;
c. That in the present case, the (a) “Club House” facility, (b) the parking space, (c) complete carpet area, (d) refund under the head of ‘seeking fund’ and (e) electricity supply under a legal meter has not been supplied by the Respondent till date and thus, there is continuous cause of action in favour of the Petitioner. Thus, the complaint filed by the Petitioner is not barred by limitation;
d. That the complaint being preferred bona fide without an accompanying condonation of delay application, is a curable defect and the complaint of the Petitioner is not liable to be dismissed in limine on the ground of non-filing of application for condonation of delay;
e. That the Order of the State Commission makes no reference to the reasons set out on behalf of the Petitioner; much less adjudicate on the sufficiency or lack thereof of the same. The Order of the State Commission is therefore clearly a non-speaking order and shows clear non-application of mind.
6. Ld. Counsel for Petitioner has argued that the impugned Order is wholly untenable in law as the same has been passed in ignorance of the plea of the Complainant, whereby a continuous cause of action was pleaded from the date of taking physical possession of the Flat till the date of completion of period of maintenance service offered by the Respondents which clearly entitles the Complainant to prefer his claim for compensation; That the State Commission ought to have construed the obligation of the Builder to be continuous and therefore a continuous cause of action accrued in favour of the Complainant instead the State Commission dismissed the complaint for being time barred without entering the merit of the matter when the date of cause of action is itself in dispute clearly showcasing non-application of mind; That the State Commission records the admission of the Respondent that no payment was payable for 3 years from the date of possession towards maintenance as the allied services were paid for at the time of the Agreement to sell but the builder in furtherance failed to maintain the building as per the Agreement between the parties; The Ld. Counsel for Petitioner referred to the cases of “Rasheed Ahmad Usmani & Ors. v. DLF Ltd. & Ors. (supra)”; “Shankar Lal Khimsera & Ors. v. H.N.S. Coaches Pvt. Ltd. (RP Nos. 1132-1133 and 1135 of 2014, decided on 01.09.2017)”; “Hanshmukh Patel and Ors. v. Sunil Kumar Majhi and Ors. (RP No. 3475 of 2012, FA No. 399 of 2010)”; “Juliet V. Quadros v. Mrs. Malthi Kumar, IV (2005) CPJ 51 (NC)”; “Sarju Construction Pvt. Ltd. & Ors. v. Gopal Ors. (RP Nos. 665-6698 of 2015, decided on 11.12.2015)”.
7. Ld. Counsel for Respondents has however argued that on 31.10.2017, almost 11 months after the limitation period and without any application seeking condonation of delay, the Complainant filed complaint before the District Forum; That the Respondents have denied the allegations levelled by the Complainant asserting that the charges for maintenance were confined to lift, guard, garden etc. and not otherwise. As for the electricity charge, the Respondents never charged the amount from the Complainant on the basis of reading of sub-meter. Respondents provided electricity facility to the Flat owners, on its own expenses, till the construction of sub-station; On 05.02.2020, the District Forum, while dismissing the Complaint as barred by limitation, had come to the right conclusion that, “if there was any complaint related to the Flat, at the time of taking over the possession of Flat, then cause of action for the complaint was within 2 years’ period from the date of taking over the possession”. In this manner, cause of action for the complaint arose on 20.12.2014 and the period of filing of complaint was up to 19.12.2016. However this complaint has been filed by the Complainant on 31.10.2017, which is barred with limitation according to Section 24(A) of the Consumer Protection Act, 1986; That the Revision Petition filed by the Complainant is devoid of merit and founded on unsustainable plea inter-alia stating that “the Appellant could not be penalized for non-filing of a condonation of delay application, in a case where the Appellant is pleading a continuous cause of action”. It is submitted that post possession, cause of action runs from the date of possession i.e. from 20.12.2014 until two years within which period if the jurisdiction of Consumer Fora is not invoked, a Complaint would be statutorily barred by limitation under Section 24A of the Consumer Protection Act. The Complainant may not be permitted to maintain a complaint beyond the limitation period on the presumed continuing cause of action thereby covering up its inability to explain the inordinately long delay in instituting the Complaint.
8. This Commission has heard both the Ld. Counsel of the Petitioner and Respondents; perused the material available on record.
9. Reliance of the Petitioner is on the decision of the Hon’ble Supreme Court in “Samruddhi Cooperative Housing Society Limited Vs. Mumbai Mahalaxmi Construction Private Limited, (2022) 4 SCC 103”; in which it had been laid down that failure to provide a service promised amounts to a continuous cause of action till such service is actually provided, on account of which the complaint could not have been outrightly dismissed by the Ld. Fora below purely on the ground of limitation, since the prayers mentioned in the original complaint themselves indicated such continuous cause of action till the date the complaint had been filed (31.10.2017).
10. Seen the prayers a) to h) in the original complaint, which are on pages 101-102 of the paper book, which are reproduced in their entirety as below-
“a) Compensation of Rs. 20,000/- only on account of mental hardships suffered by the complainant due to improper maintenance of Suit premises.
b) Compensation of Rs. 20,000/- which was charged for ‘open parking’ but the vehicle parking place has not been earmarked for the complainant till date.
c) Rs. 20,000/- which was recovered for ‘Club Membership’ but Club house not constructed till date.
d) Refund of Rs. 30,000/- which was charged for ‘Electric meter connection charges’ but after about three years, respondent is asking to get the above-said work done by the complainant at his own.
e) Refund of Rs. 20,000/- charged as Seeking Fund but the said amount has not been used for any purpose.
f) Refund of Rs. 33,389/- charged from the complainant in excess than total cost/agreed amount of Rs. 8,15,000/-.
g) Refund of Rs. 1,64,978/- as difference in sale consideration since the super built up area of the complainant’s Flat No. 401, Jasmine- 2, Green Earth City Amleshwar, Raipur Road, Durg (CG) is less than specified area.
h) Besides above, the costs of complaint alongwith simple interest on total compensation amount at the rate of 12 percent may also be allowed in favour of the complainant and against the respondents by the Hon’ble Court.”
11. It is, thus, seen that in none of the above prayers, the Complainant/Petitioner had sought any direction upon the Respondent to provide him with the facilities such as the Open Car Parking space, or actual construction of the Club House or installation of electrical meter connection, which according to him were all the liabilities to be performed by the Respondent/Developer. The Complainant actually accepted physical possession of his Apartment and at that time raised no protest about non-performance of the aforesaid liabilities on the part of the Developer. On the contrary, the reliefs he actually prayed for in the complaint can be clearly seen above were all monetary in nature purely by way of compensation of certain specified amounts in a complaint filed at a stage which was more than two years after he had already taken possession of the Apartment handed over to him. The applicability of the ratio in “Samruddhi Cooperative Housing Society Limited” (supra) could have arisen had the Complainant sought actual implementation of those conditions or services, which according to him had not been provided for by the Opposite Party, and in such eventuality, it could have been considered as a continuing cause of action. But having taken physical possession of the Apartment and the seeking compensation for alleged omission on the part of the Developer at a time when the limitation of two years for filing such complaint had already expired, cannot rescue him from the consequences of such delay.
12. For the aforesaid reasons, this Commission is of the opinion that both the Ld. Fora below had correctly come to the conclusion that the complaint filed by the Petitioner was time barred, and consequently, liable to be dismissed. For the same reasons, this Revision Petition is also dismissed. Parties to bear their own costs.
13. Pending application(s), if any, also stand disposed off as having been rendered infructuous.
