Subhash Chandra, Presiding Member
1. This challenge in this appeal under Section 19 of the Consumer Protection Act, 1986 (in short, the ‘Act’) is to order dated 01.03.2019 of the State Disputes Redressal Commission, Goa, Panaji (in short, the ‘State Commission’) in Complaint No. 02 of 2019 dismissing the complaint as being barred by limitation.
2. Briefly put, the relevant facts of the case are that the appellant had booked a flat with the respondents (who are builders) in their project “Umiya Habitat” on Survey No. 117/1-A, Sacoale Village, Mormugao Taluka, District South Goa, Goa and entered into an Agreement for Sale on 01.04.2011. Flat E-604, 6th Floor admeasuring 80.22 sq mts with stilt parking No. E-160 was allotted. As per the Agreement for Sale, possession was offered within 12 months subject to extension by 6 months, i.e., by 01.10.2012. The agreed sale consideration was Rs.20,25,000/- and the appellant paid Rs 19,65,203/-. In addition, Rs.41,993/- was paid by the appellant on 25.01.2012 towards modifications in the flat making the total payment Rs 20,07,196/-. Possession was offered on 06.01.2014 along with a demand for Rs.1,50,813/- to be paid before 15.01.2014. Appellants sought handing over of possession only after the flat was fully completed as there were incomplete works, along with compensation for delay of 20 months vide letter dated 06.01.2014. In reply dated 04.02.2014, respondents admitted to the delay and repairs but sent a legal notice dated 05.08.2015 alleging that appellants did not return the keys obtained for measurement for interiors related work. On 02.01.2016 respondent justified the delay in the delivery of the flat on the grounds of non-availability of building material (sand) which was contested by the appellant on 30.01.2016. A joint inspection of the flat on 13.02.2016 indicated that the flat still had incomplete works. According to the appellant, the respondent thereafter stopped responding. Hence complaint No. 2/2019 was filed before the State Commission which was dismissed on the ground that it was barred by limitation having been filed after the prescribed period of 2 years beyond the period of limitation reckoned from 16.02.2016.
3. We have heard the learned counsel for the parties and perused the record.
4. Appellant contended that (i) the State Commission erred in failing to consider that as per Clause 9 of the Agreement for Sale no Occupancy Certificate had been conveyed by the respondent and hence the question of taking delivery did not arise; (ii) the demand of Rs 1,50,813/- was patently bad since it did not convey any break-up in view of Rs 19,65,203/- having already been paid; (iii) the offer of possession when the in fact the flat was incomplete was not appreciated by the State Commission; (iv) the State Commission’s erred in placing reliance on this Commission’s order in Saroj Kharbanda Vs. Bigjo’s Estates Limited, F.A. No. 986/2016 dated 01.02.2018, II (2018) CPJ 146 (NC) which has not been justified in the impugned order; (v) reliance was also placed on the judgment of the Hon’ble Supreme Court in National Insurance Co. Ltd. Vs. Hindustan Safety Glass Works Ltd. in Civil Appeal No. 3883/2007, that in a beneficent legislation such as the Consumer Protection Act, the provision of limitation cannot be strictly construed to disadvantage a consumer in a case where a supplier of goods or services itself is instrumental in causing a delay in the settlement of the consumer’s complaint; (vi) the State Commission also erred in not appreciating that the respondent had failed to remove the shortcomings in the flat despite the payment of over 95% of the sale consideration at the stage of the joint inspection.
5. Per contra, the respondent contended that State Commission had rightly dismissed the complaint at the stage of admission on the ground of limitation as it was filed beyond the period of 2 years. It was submitted that in view of the fact that the appellant had requested for additional items of work which were beyond the scope of the Agreement to Sale dated 01.04.2011, the time period of 12 months agreed upon for delivery of the said flat was not applicable. Respondent also contended that the offer of possession dated 02.05.2013 was issued with the Occupancy Certificate which was received by the appellant, as was evidenced by the written version before the State Commission. The appellant was stated to have concealed this information before the State Commission as also the fact that a No Objection Certificate was sought by her for a housing loan on 22.10.2013, after the offer of possession. It was stated that as per Clauses 9, 10, 11 and 12 of the Agreement, offer of possession was to be upon receipt of the Occupancy Certificate and that delay in taking possession by the appellant thereafter would not be the liability of the respondent. Having discharged this obligation by way of letter dated 02.05.2013, the respondent contends that there was no violation of contract by it.
6. Reliance was placed by the respondent on letter dated 06.01.2014 of the appellant stating that she was unable to finalize arrangements to rent the flat in the absence of completion of the flat and therefore it was apparent that the flat had been purchased for the sole purpose of renting it. The appellant is alleged to have not returned the keys of the flat after obtaining them for taking up interior works which led to the relationship between the parties turning sour. Respondent submits that it provided draft copy of the possession letter, NOC for transfer of house tax and electricity on 12.02.2016. However, the appellant made false and concocted claims of defects and even after inspection on 13.02.2016 failed to produce any joint inspection report signed by the respondent/representative which indicated that the appellant was trying to avoid making payments, delay taking possession and attempting to extort money from the respondent.
7. It was argued by the respondent that the State Commission had rightly held that the complaint was filed beyond the 2 year period prescribed from 16.02.2016 and the State Commission was justified in holding that the ratio in Saroj Kharbanda (supra) was not applicable to the present case since in this case the building was completed and respondent had already asked the appellant to take possession on 16.02.2016 which the appellants failed to do. Reliance was placed on this Commission’s judgement in Smt. Harbhajan Sharma Vs. Haryana Urban Development Authority , 2015 SCC Online NCDRC 1509 (RP no.2293 of 2011 decided on 20.01.2015) wherein it had been held that merely writing letters and waiting for unduly long times for replies would not extend the period of limitation and that it was a well settled position of law that limitation under Section 24A(1) was a mandatory requirement. Reliance was also placed on the Hon’ble Supreme Court’s judgement in M/s Supertech Ltd. Vs. Rajni Goyal wherein it was held that “a purchaser ought not to be allowed to reap the benefit of her own delay in taking possession”. It was argued that, as laid down by the Apex Court in Ireo Grace Realtech Pvt. Ltd., vs Abhishek Khanna and Others, in Civil Appeal no.5785 of 2019 decided on 11.01.2021, once an offer of possession had been made on receipt of an occupancy certificate, the allottees are obligated to take possession even if there is delay in the offer of possession. Respondent placed reliance on this Commission’s judgment in Sudha & 2 Ors. Vs Jayprakash Associates Ltd., 2022 SCC Online SC 1235 that “In absence of any specific showing the specific deficiencies of the nature which goes to the very root of the agreement between the parties which makes the taking over of the flat impossible or not feasible, small snags here and there which could be removed on pointing out are not sufficient reason for the complainant to refuse to take possession of the subject flat.”
8. It is apparent that the complaint before the State Commission was filed on 22.01.2019. The prayer in the complaint was that the respondent had failed to offer possession of the flat in question within the stipulated time period of 12 plus 6 months, i.e., 01.10.2012. It is not in dispute that the appellant had booked the flat on 01.04.2011 and paid over 95 % of the sale consideration to the respondent. An offer of possession was made to the appellant vide letter dated 02.05.2013 giving 15 days’ time to take possession after depositing Rs 1,50,813/-. However, possession was not taken by the appellant on the grounds that the details of the break-up of the Rs 1,50, 813/- had not been provided and that the work was incomplete. The matter of taking possession lingered till 16.02.2016 on one pretext or another.
9. It is relevant to refer to the letter dated 02.05.2013 which reads as under:
02.05.2013
Dear Sir,
Pursuant to the Agreement for Sale dated 1st April 2011, as per Schedule IV (Payment Schedule) an amount of Rs 1,04,423/- (Rupees One Lakh Four Thousand Four Hundred Twenty Three Only) is due and payable to us and also an amount of Rs 46,390/- (Rupees Forty Six Thousand Three Hundred Ninety Only) towards the additional charges as specified in the Agreement for Sale.
We therefore request your goodself to visit our office within 15 days from the date of this letter and take possession of the said flat by making the necessary payments.
Thanking you
For Umiya Builders and Developers
It is also relevant to note that another letter was issued offering possession of the flat on 06.01.2014 which stated as below:
06.01.2014
Sub: Flat No. E-604
Dear Sir,
We would like to inform you take possession of your flat by clearing the balance amount of Rs 1,50,813/- on or before the 15th of January 2014.
Please note delay in taking possession of the flat will in turn delay the society formation of the building.
Thanking you
For Umiya Builders and Developers
10. At this juncture it is apposite to recall the provision in Clauses 8 and 9 of the Agreement for Sale with regard to offer of possession. These Clauses read as under:
8. The “VENDORS” shall complete the SAID FLAT within 12 months from the date of signing this agreement, subject to an extension of further 6 months, and after obtaining the Occupancy Certificate from the Competent Authorities, hand over its delivery to the PURCHASER; PROVIDED, all the amounts due and payable by the PURCHASER under this agreement are paid by the PURCHASER to the VENDORS.
9. The “VENDORS” shall, upon receipt of the requisite Occupancy Certificate, intimate the same to the PURCHASER and the PURCHASER shall, within 15 days from the receipt of the notice take delivery of the said flat.
Both the letters for possession dated 02.05.2013 and 06.01.2014 make no reference to the obtaining of an Occupancy Certificate by the respondent. No Occupation Certificate has also been brought on the record before either the State Commission or before us. The contention of the respondent that an offer of possession was indeed made to the appellant based on an occupation certificate is therefore not supported by evidence on record even though the respondent contends that it was placed before the State Commission as per pleadings. An offer of possession has been held by the Hon’ble Supreme Court to be a valid, legal offer only if the offer is based on an occupancy certificate. In the instant case, this contention of the respondent lacks validity.
11. The short issue that is for consideration in this case is whether the State Commission was justified in dismissing the complaint on the preliminary ground of limitation.
12. The State Commission had held the complaint barred under Section 24-A (1) of the Act on the ground that even if 16.02.2016 is considered as the last date for taking over possession, the complaint was barred by limitation since it was filed on 22.01.2019. The appellant has argued that in view of the possession not having been offered with an Occupancy Certificate, the offer was not valid and therefore she had a continuing cause of action which was not considered by the State Commission. The Hon’ble Supreme Court has held in Samruddhi Cooperative Housing Society Ltd., vs Mumba Mahalaxmi Construction Pvt. Ltd., 2022 SCC Online SC 35 that an offer of a possession of a flat without the requisite Occupancy Certificate does not constitute a legally valid offer of possession and in Meerut Development Authority Vs M.K. Gupta, IV (2012) CPJ 12 that a buyer has a recurrent cause for filing a complaint for non-delivery of possession of a plot. The dismissal of the complaint by the State Commission on grounds of limitation without considering that the offer of possession was itself not a valid offer based on this settled position of law makes the impugned order therefore liable to be set aside.
13. Accordingly, the appeal succeeds and the impugned order is set aside. The matter is remanded to the State Commission for adjudication afresh after hearing both the parties who are directed to appear before the State Commission on 27th May 2024.
14. Pending IAs stand disposed of with this order.
