A. P. Sahi, President Member
1. This complaint has been instituted by four Complainants alleging deficiency in service against the Opposite Parties and praying for the following reliefs:-
“B. To hold the Opposite Parties jointly and severally liable and guilty for deficiency of service and unfair trade practices and direct all the Opposite Parties to refund the entire consideration amount paid to Complainants along with an interest rate of 185 or as decided by this Hon'ble Commission from date of payment until the actual realisation of the amount.
OR
C. Direct the Opposite Parties to complete the construction of the Residential Property situated at New D.N. Nagar, Link Road, Andheri (W), Mumbai within a period of 6 months from the date of the adjudication of the present complaint and award appropriate delay compensation to the Complainants.
D. Direct the Opposite Parties to pay a sum of Rs. 25 lakhs to each Complainant towards the mental agony, trauma and harassment suffered by the complainants for over 14 years on account of the actions of the Opposite Parties along with a sum of Rs. 10,00,000/- (Rupees Ten Lakhs Only) towards the legal expenses incurred by the complainants for filing the present complaint.
In the Interim :-
E. Direct the Opposite Parties to not create any further third party rights or interests in the Residential Property situated at New D.N. Nagar, Link Road, Andheri (W), Mumbai.”
2. The Complainants have alleged that they have paid an amount of Rs.2,49,26,975/- in respect of the units booked by the Complainants, disclosed in paragraph 24 of the complaint. The Complainant No.1 was issued a letter of allotment on 13.12.2007 by the Opposite Party No.1 (M/s Vaidehi Akash Housing Pvt. Ltd). The Opposite Party No.1 could not start the constructions, in respect of the allotment, which was for an office premises on the second floor of the building “VINEETA” the same appears to have been unilaterally cancelled by the Opposite Party No.1 through their letter dated 19.09.2009, categorically stating therein that due to various reasons beyond their control they were unable to develop the property and hence a refund cheque for Rs.1,15,91,000/-was tendered to the Complainant No.1 accordingly. According to the Complainants, the cheque was dishonoured for the reason that the account was blocked and therefore a legal notice was sent on 22.07.2010. It is also alleged that in response to the legal notice, the Opposite Party No.1 informed that the cheques were only given as a security and should not have been encashed and that the Opposite Party No.1 is in negotiation with the Cooperative Housing Society (The Respondent No.6) in the matter.
3. Similarly, in respect of the Complainant No.4, the allegation is that payments were advanced and an allotment letter was issued by the Opposite Party No.1 on 07.09.2006. It is alleged that no agreement was entered into nor any intimation given nor any offer of possession made. The Complainants came to know that there were differences between the Opposite Party No.1 (The Developer) and the Opposite Party No.6 (The Cooperative Housing Society) as such nothing happened thereafter and ultimately the Opposite Party No.7 (M/s Rustomjee Realty Pvt. Ltd.) published a public notice on 15.03.2010, indicating their interest in the property, when the Complainant No.4 addressed a letter to them expressing her dismay in the matter.
4. It is in this background, the Complainants have filed suits before the Bombay City Civil Court at Bombay, Borivali Division at Dindoshi and a copy of the complaint of the suit has been brought on record as annexure-27, which is the suit filed by the Complainant No.4 against 3 defendants who are the Opposite Party No.1,6&7 herein. The gist of prayers have been drawn up and is extracted hereinunder:-
“a) The Hon'ble court be pleased to pass judgment and decree directing the defendants their successors employees and assigns to comply with their statutory obligations as provided under MOFA by executing agreement for sale in respect of Flat No. 804 admeasuring about 1798.50 Sq. Fts. (super builtup area) on the 8" Floor of the building of New D.N. Nagar co-operative housing society union ltd. to be constructed on that piece and parcel of land bearing survey no.106, part no.5, C.T.S. No. 195(pt) of village Andheri, Taluka Andheri situate at new D. N. Nagar, Andheri (west), Mumbai -400 053 in the registration sub district of Bandra and district of Mumbai city along with one car parking.
b) The Hon'ble court be pleased to restrain the defendants from dealing with, disposing off, alienating, assigning or creating any 3rd party right or interest in respect of the Flat No. 804 admeasuring about 1798.50 Sq. Fts. (super builtup area) on the 8th Floor of the building of New D.N. Nagar co-operative housing society union ltd. to be constructed on that piece and parcel of land bearing survey no.106, part no 5, C.T.S. No. 195(pt) of village Andheri, Taluka Andheri situate at new D. N. Nagar, Andheri (west), Mumbai -400 053 in the registration sub district of Bandra and district of Mumbai city along with one car parking
c) To authorize the registrar to this Hon'ble court or any other fit and proper person to execute the agreement for the sale in respect of the suit flat in favour of the plaintiff and admit execution before the registrar of assurance and do all the acts deeds to have the agreement for sale registered in favour of the plaintiff in the event of failure of the defendant no.1 to execute the agreement for sale in favour of the plaintiff.
d) This Hon'ble court be pleased to pass permanent injunction of this Hon'ble court restraining the defendant no.1 and other defendants through themselves their successors employees and assigns from dealing with, disposing off, alienatung, assigning or creating any 3rd party right or interest in respect of the suit premises.
e) That pending the hearing and final disposal of the suit this Hon'ble court be pleased pass the temporary order to appoint court receiver …. in respect of the suit premises.
f) That pending the hearing and final disposal of the suit this Hon'ble court by its temporary injunction be pleased to restrain the defendants, their associates, successors employees and assigns from dealing with disposing off alienating assigning or creating any 3rd party right or interest in respect of the suit flat no.804 in any manner whatsoever.
g) The ad interim and interim orders in terms of prayer clauses (e) and (f) above granted.
h) The cost of the suit be provided for and
j) That such other and further relief's as the nature and circumstances of the case may be required be granted.”
5. There is no dispute that all the Complainants have filed their respective civil suits, which are pending adjudication as per the reliefs refer to hereinabove.
6. It is in this background that when the present complaint was filed in 2023 before this Commission, the following order was passed on 05.09.2023, calling upon the learned Counsel to explain the issue of delay as also the maintainability of the complaint in the background that the Complainants have already filed their suits, which are pending as admitted in the complaint itself.
“Dated: 05.09.2023
ORDER
Heard learned counsel for the complainants.
The complaint is sought to be instituted on the ground as if there is a continuing cause of action for the complainants to arrive before this Consumer Forum. It is also urged that with regard to the same benefits Consumer Complaint No. 285 of 2012 is pending before this Commission.
We find from the pleadings that the complainants have filed 3 suits way back in the year of 2012 and 2013 and it is thus evident prima facie that they had commenced litigation being aware of the rights, more so when other complainants had chosen to approach this Forum in the year 2012 itself. We do not find any plausible explanation given keeping in view the limitation as prescribed under the Act that a diligent complainant should arrive before this Forum within a period of two years of the date of cause of action.
Prima facie in the absence of any such satisfactory pleading, learned counsel for the complainants prays for 2 weeks’ time to file an application to offer any cogent or plausible explanation for the same.
List on 15.02.2024.”
7. The matter proceeded and the learned Counsel again took an adjournment on 15.02.2024 to comply with the directions extracted above. Accordingly, IA/2641/2024 was filed on 15.02.2024, wherein the following chart has been displayed:-
|
Complainants(s) |
Total Payment |
Date of allotment letter |
|
Complainant No.1 and ComplainantNo.2 (Jointly) Flat No.805 |
Rs. 56,65,275/- |
07.09.2006 |
|
Complainant No.3 Flat No.803 |
Rs. 59,70,850/- |
07.09.2006 |
|
Complainant NO.1 Flat No.1703, 1704,1803, 1804 |
Rs. 48,20,000/- |
13.12.2007 |
|
Complainant No.4 Flat No.804 |
Rs.84,70,850/- |
07.09.2006 |
|
Total Amount |
Rs.2,49,26,975/- |
8. It is then disclosed in paragraph 12 and 13 as follows:-
“12. Subsequently, it had come to the knowledge of the complainants that some disputes had arisen between Respondent No.1 and 6. It was later discovered by the complainants that Respondent No. 1 had subsequently transferred its right under the abovementioned redevelopment agreement dated 31.12.2005 in favour of Respondent NO. 7 vide agreement dated 04.04.2007. The complainants have since then been running from the pillar to the post to establish their title over their residential units of flats, however, the opposite parties continue to take a different stand which deprives the complainants of their title over the Flat as is detailed in the titled complaint.
13. Concerned, with the developments and disputes that had subsequently arisen between the Opposite Parties, the complainants herein were constrained to separately write letter to Respondent No. 1 in around March 2010. To the utter shock of the complainants herein, the opposite parties have faltered to provide any assurances regarding the construction and the possession of the units of flats thereof. The opposite Parties have even disputed allotment of any sellable units of flats in favour of the complainants and the validity of the allotment letter(s), despite having issued valid allotment letters in favour of the complainants and the complainants having made part consideration towards buying of the sellable units as explained in detail in the titled complaint”
The Complainants have again admitted of having filed separate civil suits and other proceedings, which are disclosed in paragraph 15 and 16 of the said IA extracted hereinunder:-
“15. The details of the proceedings initiated by the complainants herein, can be summarised as below:
|
Sl. No. |
Complainant Nos |
Case Title and year |
|
|
Complainant No. 1 and 2 |
SC Suit No.262/2012 |
|
|
Complainant No. 3 |
SC Suit No.2000/2013 |
|
|
Complainant No. 4 |
Complaint under Section 138 of the NI Act 107/2013 and 108/2013 (Dismissed vide order dated 06.09.2017) |
|
|
Complainant No. 1 |
SC Suit No.201999/2013 |
16. Further, for the sellable four units of flats that were allotted in favour of Complainant No. 1 in his personal capacity, the Opposite Party No. I had issued cheques of Rs. 1,15,91,000/- and of Rs. 1,10,21,500/- towards refund and compensation of the amount paid. However, even the said cheques were dishonored. Thereafter, the Complainant No. 1 initiated proceedings under the Negotiable Instruments Act, 1881. However, the complaint was dismissed since it could not be properly prosecuted vide order dated 06.09.2017.”
10. The application then in paragraph 17 states that the Complainants came to know of a consumer complaint CC/285/2012 “Jasbir Singh Bhullar Vs. M/s Vaidehi Housing Society Pvt. Ltd.” was pending consideration before this Commission and it is then they decided to file this joint complaint.
11. While giving an explanation with regard to the presentation of this complaint in spite of they having already filed suits which are pending before the Bombay Civil Court, it is urged by them that the Consumer Protection Act is a beneficial piece of legislation and for that it is relevant to extract paragraph 18 to 22 of said the application:-
“18.It is submitted that for the purposes of the present application, the preamble to the Consumer Protection Act, 2019 is reproduced herein below:
"An Act to provide for protection of the interests of consumers and for the said purpose, to establish authorities for timely and effective administration and settlement of consumers' disputes and for matters connected therewith or incidental thereto."
19.In view of the aforesaid, it is only logical to conclude that the Consumer Protection Act, 2019 is a beneficial legislation which aims at providing an effective remedy to the consumers. Therefore, a complaint which raises such glaring set of infirmities in the actions of the respondents, deserves attention and interference by this Hon'ble Commission and the aspect of limitation should not be construed strictly.
20.It has been held by the Hon'ble Supreme Court of India in National Insurance Co. Ltd. vs. Hindustan Safety Glass Works Ltd. (Civil Appeal No. 3883 of 2007) that bar of limitation cannot be construed to the disadvantage of the consumer. The relevant paras of the abovementioned judgement of the Hon'ble Supreme Court of India is reproduced herein for the sake of convenience.
18. In our opinion, in a dispute concerning a consumer, it is necessary for the courts to take a pragmatic view of the rights of the consumer principally since it is the consumer who is placed at a disadvantage vis-à-vis the supplier of services or goods. It is to overcome this disadvantage that a beneficent legislation in the form of the Consumer Protection Act, 1986 was enacted by Parliament. The provision of limitation in the Act 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 claim. That being so, we have no hesitation in coming to the conclusion that the National Commission was quite right in rejecting the contention of National Insurance in this regard.
21. Considering the nature of reliefs being claimed in the present complaint, the titled complaint is maintainable and this Hon'ble Commission has the jurisdiction to adjudicate upon the complaint.
22. As is already stated in the titled complaint, the abovementioned suits filed by the complainants herein are pending adjudication before the Ld. Trial Court, and that the complainants shall abide by any order(s)/direction(s) passed by this Hon'ble Commission.”
12. While answering the issue of delay, the same application in paragraph 23 to 26 states as follows:-
“23.It is submitted that the actions of the Opposite Parties in delaying the construction of residential units, and the delay in the possession of the residential units thereof, amounts to a continuous delay. Therefore, since there is a continuous delay in the delivery of the possession, the present complaint cannot be said to have been filed beyond the prescribed period of limitation.
24. Since the complainants herein haven't yet gotten the possession, the cause of action is continuous and therefore, the present complaint is filed within the period of limitation. It has been held by this Hon'ble Commission in Satish Kumar Pandey v. Unitech Ltd., 2015 SCC OnLine NCDRC 14 that failure to deliver possession being a continuous wrong it constitutes a recurrent cause of action and, therefore, so long as the possession is not delivered to him the buyers can always approach a Consumer Forum. The relevant paragraphs of the above mentioned judgement passed this Hon'ble Commission is reproduced herein for the sake of convenience.
"17. It was next contended by the learned counsel for the complainant that since the last date stipulated in the buyers agreement for giving possession of the flat to them expired more than two years ago the complaint is barred by limitation prescribed in Section 24A of the Consumer Protection Act. It is by now settled legal proposition that failure to deliver possession being a continuous wrong it constitutes a recurrent cause of action and, therefore, so long as the possession is not delivered to him the buyers can always approach a Consumer Forum. It is only when the seller flatly refuses to give possession that the period of limitation prescribed in Section 24A of the Consumer Protection Act would began to run. In that case the complaint has to be filed within two years from the date on which the seller refuses to deliver possession to the buyer. However, in the present cases the opposite party did not refuse possession of the flats to the complainants at any point of time and, therefore, the cause of action continues to subsist in favour of the complainants. Reliance in this regard may be place upon the decision of the Hon'ble Supreme Court in Meerut Development Authority v. M.K. Gupta, IV (2012) CPJ 12 where the Hon'ble Supreme Court held that in such a case the buyer has a recurrent cause for filing a complaint for non-delivery of possession of the plot."
25. This Hon'ble Commission has further in Anthony H. Silva vs. Hermonie Mary Salazar held as follows:
"12. The next issue for consideration is whether the consumer complaint was barred by limitation under section 24A of the Consumer Protection Act, 1986. The appellant/OP has stated that the agreement between the parties was entered in the year 1987 and according to the same, the property was to be provided to the complainant within a period of 3 years. However, it is their own version that they offered the possession of the property to the complainant in or around the year 1994 only, meaning thereby that they failed to take action in accordance with the terms and conditions of the agreement. It is also the case of the OP that they provided flats having built-up area of 950 sq. ft. each to the land owners at a different locality in lieu of built-up area of 1700 sq. ft. each to be provided under the agreement dated 07.11.87. The allegations levelled by the complainant, therefore, that the OP failed to provide her a flat, having area of 1700 sq. ft. as promised, is true. This would, therefore, be a case of continuing cause of action till the flat is provided to the complainant as per the agreement between the parties. Even if the complainant failed to file the consumer complaint within a period of 2 years as prescribed under section 24A of the Act, she cannot be debarred from filing the same after the expiry of the said period, as she cannot be denied the offer of flat in terms of the agreement. We, therefore, do not agree with the contention of the OP that the complaint was barred by limitation, as it is a case of continuing cause of action."
26.It is further submitted that the Hon'ble Supreme Court of India in Samruddhi Coop. Housing Society Ltd. v. Mumbai Mahalaxmi Construction (P) Ltd., (2022) 4 SCC 103 has held that even non-delivery of possession certificate to the homebuyers shall amount to a continuous wrong, and therefore the limitation shall be continuous. It has been held by the Hon'ble Supreme Court as follows;
"12. Section 24-A of the Consumer Protection Act, 1986 provides for the period of limitation period for lodging a complaint. A complaint to a consumer forum has to be filed within two years of the date on which the cause of action has arisen. In the instant case, the appellant has submitted that since the cause of action is founded on a continuing wrong, the complaint is within limitation.
13. Section 22 of the Limitation Act, 1963 [ "22. Continuing breaches and torts.-In the case of a continuing breach of contract or in the case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues. "] provides for the computation of limitation in the case of a continuing breach of contract or tort. It provides that in case of a continuing breach of contract, a fresh period of limitation begins to run at every moment of time during which the breach continues. This Court in Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan [ Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, 1959 Supp (2) SCR 476 : AIR 1959 SC 798]elaborated on when a continuous cause of action arises."
13. The case was taken up on 12.04.2024 and the following order was passed inviting arguments from the learned Counsel for the Complainants:-
“Learned counsel for the complainant has come up with the explanation through IA/2641/2024, seeking condonation of delay and has also relied on the paragraph 12 of the judgment of the Apex Court in the case of Samruddhi Coop. Housing Society Ltd. v. Mumbai Mahalaxmi Construction (P) Ltd., (2022) 4 SCC 103, in order to buttress his submissions in support of the application that the cause of action is a continuing cause of action.
Learned counsel for the complainant may also study the provisions of section 69 of the Consumer Protection Act, 2019 which is pari materia to Section 24 (A) of the Consumer Protection Act, 1986 in relation where to the Apex Court in the case of SBI v. B.S. Agriculture Industries (I), (2009) 5 SCC 121 had held that the Consumer Forum would be committing an illegality in case the bar of time is not condoned and the matter is proceeded with without complying with the conditions prescribed in the statute. Learned counsel may also study the other judgments on the issue as well.”
As prayed list on 16.04.2024
14. The case was again heard on 16.04.2024, when the learned Counsel advanced his submissions on the issue of limitation with the aid of certain judgments and then the issue of the pendency of suits vis-à-vis the Doctrine of Election as explained by the Apex Court was pointed out, which stands recorded in the order dated 16.04.2024 that is extracted hereinunder:-
“Heard learned counsel for the complainants.
As per the observations made on 12.04.2024, learned counsel has come up contending that the issue of limitation will not be a bar nor the filing of the suit by the complainants, for which reliance is placed on the order passed by this Commission in Yashwant Rama Jadhav Vs. Shaukat Hussain Shaikh & Anr. 2017 SCC OnLine NCDRC 578. Learned counsel has also relied on the judgment of the Apex Court in Fair Air Engineers Pvt. Ltd. and Anr. Vs. N.K. Modi (1996) 6 SCC 385 to buttress his submissions. He has then again pressed into service the judgment of the Apex Court in the case of Samruddhi Cooperative Housing Society Ltd. Vs. Mumbai Mahalaxmi Construction Pvt. Ltd. (2022) 4 SCC 103 to contend that since there is a continuous failure on the part of the opposite parties to deliver possession, the present case would that be of a continuous cause of action and as such there would be no bar of limitation.
The issue as to whether the pendency of the suit would be a bar or otherwise has also to be viewed from the angle of Doctrine of Election as explained by the Apex Court in the case of Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna and Ors. (2021) 3 SCC 241, Para 37.5 to 42.
Learned counsel for the complainants prays that the matter be adjourned to enable him to further assist the Bench with the legal issues involved as also any other authorities on the subject.
Let the matter be listed on Saturday, the 1st June, 2024.”
15. Learned Counsel advanced his submissions on 01.06.2024, pressing his arguments and explaining the judgments on which reliance has been placed. He has invited the attention of the Bench to the Three Judges decision in the case of Pioneer Urban Land and Infrastructure Ltd. and Anr. Vs. Union of India and Ors.,(2019) 8 SCC 416, to contend that the remedies under the Consumer Protection Act and the jurisdiction are concurrent remedies and hence reference was made to Section 3 of the Consumer Protection Act, 1986, to contend that the present complaints are maintainable and they cannot be rejected on the ground of the pendency of the suits.
16. Learned Counsel has then invited the attention of the Bench to the decision in the case of Imperia Structures Ltd. Vs. Anil Patni and Anr., (2020) 10 SCC 783, paragraph 22 and again to the other paragraphs to contend that the availing of the remedy before the Consumer Protection Act is without prejudice to any other additional remedies including those made under any special statutes. Pointing out to paragraph 23 of the judgment, it is urged that there is no bar and any other alternative remedy cannot deprive the Complainants of the remedy available under the Consumer Protection Act in terms of Section 100 of the Consumer Protection Act, 2019.
17. Learned Counsel then pointed out towards the observations made by the Three Member Bench decision of the Apex Court in the case of Ireo Grace Realtech Pvt. Ltd. (Supra), particularly to paragraph 36.5, which reads as follows:-
“Various judgments of this Court have upheld that applicability of provisions of Consumer Protection Act as an additional remedy, despite the existence of remedies under special statutes, including the Arbitration and Conciliation Act, 1996, in Emaar MGF Land Ltd. V. Aftab Singh, this Court has held that the remedy under the Consumer Protection Act, 1986 is confined to the complaint filed by a consumer as defined by the Act, for defects and deficiency caused by the service provider. The existence of an arbitration clause was not a ground to restrain the consumer fora from proceeding with the consumer complaint.”
18. He has then invited the attention of the Bench to paragraph 37.2 to further substantiate his submissions.
19. Coming to the Doctrine of Election learned Counsel referred to paragraph 38 to 42 of the said judgment to contend that when two remedies are available, the option to elect either of them is with the Complainants, but, he contends that the Doctrine of Election applies subject to the exception that where the ambit and scope of the two remedies is essentially different, the Doctrine would not apply on the facts of the present case.
20. He has then urged that the order passed by the Madras High Court in the case of National Insurance Co. Ltd. Vs. Bakkiam & Ors., (2017) 8 Mad LJ 65, has held in paragraph 22 as follows:-
“It is imperative for any vibrant system of justice administration not to plead helplessness in remedying a cause of action, but this cannot be achieved unless there is an attempt to preserve the cause of action. This underlying anxiety shall be of the court’s and it was best expressed when Lord Atkin (as extracted in S. Suppiah Chettiar, AIR 1957 Mad 216, insisted that right of election of forum might not be held conclusive unless the forum approached has conclusively decided the action. This statement if expatiated would mean that the right of election should be preserved till the matter is concluded by the forum of first choice. Hence, withdrawal of proceedings from the forum of first choice is held not to bar a proceeding before the forum of second choice on the same cause of action.”
21. He therefore submits that applying the said principles as explained in the first part of the order, the suits have not been decided for more than 10 years and, therefore, no estoppal or legal bar is created so as to non-suit the complainants before this forum.
22. Concluding his arguments, he has also invited the attention of the Bench to the order passed by this Commission in the case of A. Infrastructure Ltd. Vs. Macrotech Developers Ltd., (2023) SCC OnLine NCDRC 595, holding that an allottee may elect or opt for one out of the remedies provide by law. An election of remedy arises when two concurrent remedies are available and the aggrieved party chooses to exercise one in which event he looses his right to simultaneously exercise the other for the same cause of action. Learned Counsel very fairly submits that even though the said order of this Commission does not favour the Complainants, but, the said order has been assailed before the Apex Court and is also engaging the attention in another appeal before the Apex Court in Civil Appeal No.3439 of 2023 and Civil Appeal Dairy No. 42005 of 2023.
23. It is urged that this is a very hard case, where waiting endlessly for more than 10 years for a decision in the suit filed by the Complainants, where there is no hope at the end of the tunnel expecting a final verdict, the Complainants cannot be declined the benefit of the forum which is meant for consumers for an expeditious disposal of their complaints.
24. He submits that this is one of those cases, where the Complainants after having invested their hard earned money have waited for long in a queue to receive justice and hence their complaints should be entertained for a speedy disposal of the matter, where the reliefs are of deficiency in service or in the alternative refund. It is submitted that other complaints have also been entertained before the Commission that has been noted in the order dated 05.09.2023 particularly in CC/285/2012.
25. It is in the aforesaid background that the learned Counsel submits that notices be issued calling upon the Opposite Parties to contest this position and the complaint be entertained accordingly. The contention of the learned Counsel is that the complaint should not be rejected summarily at this stage.
16. Having noted and examined the facts and having perused the provisions as well as the authorities cited at the bar, the contention of the Ld. Counsel for the Complainants regarding passing of the orders at the admission stage itself without issuing notice deserves to be attended to at the outset. The contention of the ld. Counsel is that the Commission may not proceed without issuing notice on the issues that have been raised and calling for an answer from the Opposite Parties in this regard.
27. To clarify this position, it may be mentioned that on receipt of a complaint the District Commission, the State Commission and the National Commission are empowered to either proceed or reject a Complaint as provided for under Section 36(2) and (3) of the Consumer Protection Act, 2019 read with Section 59 thereof. The said Provisions are extracted hereinunder:
“36(2) On receipt of a complaint made under section 35, the District Commission may, by order, admit the complaint for being proceeded with or reject the same:
Provided that a complaint shall not be rejected under this section unless an opportunity of being heard has been given to the complainant:
Provided further that the admissibility of the complaint shall ordinarily be decided within twenty-one days from the date on which the complaint was filed.
36(3) Where the District Commission does not decide the issue of admissibility of the complaint within the period so specified, it shall be deemed to have been admitted.”
“59. Procedure applicable to National Commission.—(1) The provisions relating to complaints under sections 35, 36, 37, 38 and 39 shall, with such modifications as may be considered necessary, be applicable to the disposal of complaints by the National Commission.
(2) Without prejudice to sub-section (1), the National Commission may also declare any terms of contract, which is unfair to any consumer to be null and void.”
28. As is evident from the facts narrated above and the orders by this Commission in this complaint on 05.09.2023, 15.02.2024, 12.04.2024 and 16.04.2024, the Complainant had been called upon to explain the delay, if any, in filing of the Complaint keeping in view the cause of action which had arisen between 2010 and 2012 and then the maintainability of the Complaint in the background that admittedly all the Complainants had filed suits wayback in 2012-13 before the Bombay City Civil Court regarding declaratory and other reliefs for certain injunctions and prescriptions as already extracted hereinabove regarding the same property where the Opposite Party No.1,6&7 herein are defendants.
29. Ld. Counsel sought for and was granted two weeks’ time to file an application for offering any cogent or plausible explanation in this regard. The application came to be filed on 15.02.2024 which was noted in the Order dated 15.02.2024. Since the same had not been filed before the Registry it was directed to be filed and the case was directed to come up on 12.04.2024 when on the aforesaid averments made as extracted hereinabove, Ld. Counsel was called upon to assist the Bench keeping in view the provisions of Section 24A of the Consumer Protection Act, 1986, which is pari-materia to the current Section 69 of the Consumer Protection Act, 2019. The order of the Apex Court in the case of SBI vs. BS Agriculture Industries (Supra) was also noted in the order dated 12.04.2024 in order to appreciate the decision of the Apex Court in the case of Samruddhi Cooperative Housing Society Ltd. (Supra) that was relied by the Ld. Counsel for the Complainant. As requested the matter was immediately listed thereafter on 16.04.2024 where the Judgements were again placed and then the issue with regard to the doctrine of election was also pointed out in the light of the decision of the Apex Court in Ireo Grace Realtech Pvt. Ltd. (Supra). This is how the matter came to be listed in the background above on 01.06.2024 and the submissions have been advanced extensively.
30. The above facts have been narrated in order to indicate the time sought by the Ld. Counsel for the Complainant earlier and to enumerate the circumstances in which the Complaint had not been admitted, and was pending at the stage of admission itself. A perusal of Section 36(2) and (3) extracted hereinabove empowers the Commission to either proceed with the Complaint or reject the same provided that a complaint shall not be rejected unless an opportunity of being heard has been given to the Complainant. It is this opportunity which was provided to the learned Counsel under the orders referred to hereinabove pending admission. The said provision does not mandate that the Complaint has to be rejected only after issuing notice to the Opposite Party. Thus the argument that the Commission does not have the power to reject a Complaint at the admission stage without issuing notice to the Opposite Parties on the issue of admissibility does not appeal to reason and the contention is untenable.
31. Coming to sub-section (3) of Section 36 of the Act, the provision is that if the issue of admissibility is not decided within the period specified it shall be deemed to have been admitted, has to be read alongwith the second proviso to sub-section (2), which indicates that the admissibility of the Complaint is “ordinarily” to be decided within 21 days. The word “ordinarily” extends this discretion for decision on admissibility within 21 days but the same does not curtail the power of the Commission to seek complete information and then proceed to decide the admissibility as involved in the present case involving the issue of limitation as well as the issue of the maintainability of the Complaint in the light of the fact that all the Complainants have already filed civil suits in 2012 that are pending. Since complete facts were required together with any explanation of the Complainant, opportunity was given on 05.09.2023 and then again on 15.02.2024 to enable the Complainant to file an application for assisting the Commission to decide the aforesaid two issues. It is in this background that the question of admission still was pending consideration when the arguments were advanced and queries were raised on 12.04.2024 and 16.04.2024.
32. The Complainants’ Counsel was therefore given this opportunity, who has availed of the same and therefore, there was compliance of sub-section (2) of Section 36 quoted above. The arguments concluded and were completed only on 01.06.2024 and therefore the issue of admissibility and maintainability of the Complaint has been considered in the light of the arguments advanced by the Ld. Counsel for the Complainants and the documents that have been referred to including the averments contained in the IA/2641/2024 filed on 15.02.2024. The Commission therefore is not denuded of the exercise of its powers to decide the issue of admissibility and the Complaint on the facts of the present case and the background hereinabove for which the Commission does not find any necessity to issue notice to the Opposite Parties, as all the facts and the legal grounds that are required to be examined have been placed by the Complainants’ Counsel at length. The question of maintainability of the Complaint therefore has to stand on the allegations made and the facts of the case for which the Commission does not find any reason to detain the matter further for issuing a notice for all the reasons recorded hereinafter.
33. The issue of limitation of the filing of the Complaint has to be understood in the light of the provisions of the Section 69 of the Consumer Protection Act, 2019, which is extracted hereinunder:-
“69. Limitation period.—(1) The District Commission, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Commission, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the District Commission or the State Commission or the National Commission, as the case may be, records its reasons for condoning such delay.”
34. It is at this stage that reference deserves to be made to the judgement in the case of SBI vs. BS Agriculture Industries (Supra). The said decision was rendered while interpreting Section 24A of the Consumer Protection Act, 1986, which is pari-materia with Section 69 of the Consumer Protection Act, 2019. The words used by the legislature mandate that “the Commission shall not admit a Complaint unless it is filed within two years from the date on which the cause of action has arisen”. Ld. Counsel for the Complaints urged that in view of the judgement in the case of Samruddhi Cooperative Housing Society Ltd. (Supra) there is a continuing cause of action to the Complainants as neither the constructions have been made nor any possession has been offered to the Complainants.
35. It is evident from the narration of the facts made in the Complaint that atleast the Complainant No.1 has admitted that the default on the part of the Opposite Party No.1 had commenced and not only this they proceeded to cancel the allotment of the Complainant and tendered a cheque of refund as referred to above that was dishonored way back in 2009-10. It is this cause of action and similar causes for the other Complainants that led to the filing of the suits in 2012-13. It is relevant to point out that the recitals in the suit are at length that indicate that all the plaintiffs had been deprived of their legitimate rights which they alleged to be a deficiency on the part of the Opposite Party No.1 wayback in April 2010, and then subsequently as well alleging that the Opposite Parties were trying to dispense with the property, and hence they sought declarations and injunctions as against the non-performance of the terms and conditions of allotment. Paragraph No.23 and 24 of the Complaint is extracted hereinunder:
“23. The plaintiff states that the defendant no.1 only with a view to run away from its statutory obligations as provided under the MOFA act is deliberately with malafide intention not accepting the requisitions of the plaintiff and is in the process of creating the dispute with this plaintiff. The plaintiff further also states that the plaintiff has paid much more compared to completion of the construction of the suit building and hence nothing is left to be performed on the part of the plaintiff.
24. The plaintiff states that the plaintiff has not issued the statutory notice as required under the provisions of section 164 of the MCSA to the defendant no.2 prior to the filing of the present suit. The plaintiff submits that there is extreme urgency in the matter as the defendant no.1 inspite of receiving an amount of Rs.84,70,850/- (Rupees eighty four lacs seventy thousand eight hundred and fifty only) from the plaintiff is not making efforts to safeguard the interest of the plaintiff and the defendant no.3 is trying to dispose off the suit premises without the consent of the plaintiff and hence the plaintiff could not wait till the expiry of the statutory period and in any event by the act of the defendants, the statutory notice is deemed to be waived with by the defendant no.2 society. It is further pertinent to note that the plaintiff is not seeking any reliefs against the defendant no.2 and it is just a proper and necessary party to the suit.”
36. In Paragraph Nos. 33 to 36, the allegations made for the cause of action is as follows:-
“33. The cause of action for seeking performance of statutory obligation is continuous. It arises with each passing day and continues till said breaches are fulfilled. The plaintiff still is ready and willing to perform her part of the obligations as per allotment executed with the defendant no.1.
34. it is stated that no other suit is filed or pending before any other court for the same cause of action.
35. The present suit is filed for seeking performance from the defendant of its statutory obligations under the provisions of MOFA act. The plaintiff submits that all the reliefs sought hereunder are arising out of statutory obligations cast on the defendants under MOFA breaches thereof and reliefs consequential thereon.
36. The plaintiff states that the suit is not barred by law of limitation.”
37. The allegations in the present complaint or a narration of the very same issues alleging the deficiency of service to be continuing, and also praying that either the Opposite Parties complete the constructions of the property and hand over with appropriate delay compensation to the Complainants (Prayer – C) or the deficiency in service and unfair trade practices, has been taken as a ground for refund of the entire consideration amount paid to the Complainants alongwith interest @18.5% p.a. or as decided by this Commission. The plea therefore advanced in the present complaint is for completion of project whereas in the suit the prayer is for executing the agreement for sale and then restraining the defendants from alienating the said property or creating any third party rights or interest thereof.
38. Thus the cause of action for acquiring the property, its preservation and prevention or alienation had all arisen wayback in 2012 itself which forms the basis of the suit as well as this complaint.
39. Section 69 of the Consumer Protection Act, 2019, cannot be treated to be a provision to allow extension in the name of a continuing cause of action once the cause of action has been disclosed by the Complainant himself. It is for this reason that Section 24A of the Consumer Protection Act, 1986, which is pari-materia to Section 69 of the Consumer Protection Act, 2019, was interpreted directly to hold that the issue of limitation was a jurisdictional fact and has to be decided by the forum itself. Paragraph No.11 to 15 of the decision in the case of SBI Vs. B.S. Agriculture Industries (Supra) is extracted hereinunder:-
“11. Section 24-A of the Act, 1986 prescribes limitation period for admission of a complaint by the consumer fora thus:
“24A. Limitation period – (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in subsection (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.”
It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, “shall not admit a complaint” occurring in Section 24-A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder.
12. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24-A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.
13. In Union of India v. British India Corpn. Ltd. while dealing with an aspect of limitation for an application for refund prescribed in Business Profits Tax Act, 1947, this Court held that the question of limitation was a mandate to the forum and, irrespective of the fact whether it was raised or not, the forum must consider and apply it.
14. In HUDA v. B.K. Sood this Court while dealing with the same provision viz., Section 24-A of the Act, 1986 held: (scc PP.167-68, PARAS 10-12)
“10. Section 24-A of the Consumer Protection Act, 1986 (referred to as ‘the Act’ hereafter) expressly casts a duty on the Commission admitting a complaint, to dismiss a complaint unless the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that the complainant had sufficient cause for not filing the complaint within the period of two years from the date on which the cause of action had arisen.
11. The section debars any fora set up under the Act, admitting a complaint unless the complaint is filed within two years from the date of which the cause of action has arisen. Neither the National Commission nor had the State Commission considered the preliminary objections raised by the appellant that the claim of the respondent was barred by time. According to the complaint filed by the respondent, the cause of action arose when, according to the respondent, possession was received of the booth site and it was allegedly found that an area less than the area advertised had been given. This happened in January 1987. Furthermore, the bhatties which were alleged to have caused loss and damage to the respondent, as stated in the complaint, had been installed before 1989 and removed in 1994. The complaint before the State Commission was filed by the respondent in 1997, ten years after the taking of possession, eight years after the cause of alleged damage commenced and three years after that cause ceased. There was not even any prayer by the respondent in his complaint for condoning the delay.
12. Therefore, the claim of the respondent on the basis of the allegations contained in the complaint was clearly barred by limitation as the two year period prescribed by Section 24-A of the Act had expired much before the complaint was admitted by the State Commission. This finding is sufficient for allowing the appeal.”
15. In a recent case of Gannmani Anasuya and Others v. Parvatini Amarendra Chowdhary this Court highlighted with reference to Section 3 of the Limitation Act that it is for the court to determine the question as to whether the suit is barred by limitation or not irrespective of the fact that as to whether such a plea has been raised by the parties; such a jurisdictional fact need not be even pleaded.”
40. The aforesaid judgement of the Apex Court does not seem to have been directly dealt with or referred to in the judgement of Samruddhi Cooperative Housing Society Ltd. (Supra) with regard to limitation of filing of a Complaint and the applicability of the limitation prescribed under Section 69 of the Act.
41. In Samruddhi Cooperative Housing Society Ltd. (Supra), the issue of continuing cause of action was considered and it was held that since the promoter is under an obligation under the MOFA Act to obtain occupancy certificates which he failed to do, then a statutory obligation, which was a continuing duty of the promoter, was breached and hence due to failure of discharging of that statutory obligation, the Apex Court in paragraph No.22, held as under:-
“22. NCDRC in its impugned order has held that the cause of action arose when the municipal authorities ordered the payment of higher taxes in the first instance. Further, the impugned order also states that the present complaint is barred by limitation as there is no prayer for supply of occupancy certificate. We are unable to subscribe to the view of NCDRC on both counts. Undoubtedly, the continuing wrong in the present case is the failure to obtain the occupancy certificate. Against this act of the respondent, the appellant Society has taken appropriate action by filing a complaint before the consumer forum. The appellant is currently pursuing the execution of the order of SCDRC arising from that complaint. However, that itself does not preclude it from claiming compensation for the consequences which have arisen out of this continuing wrong. The failure to obtain the occupancy certificate has resulted in the levy of higher taxes on the members of the appellant Society repeatedly by the municipal authorities. Despite the order of 20-08-2014, the respondent has failed to obtain the occupancy certificate. This has resulted in a situation where the appellant, despite having followed the correct course of litigation in demanding the furnishing of an occupancy certificate, will continue to suffer the injury inflicted by the respondent merely due to the delay in the execution of the order against the respondent. Rejecting the complaint as being barred by limitation, when the demand for higher taxes is made repeatedly due to the lack of an occupancy certificate, is a narrow view which is not in consonance with the welfare objective of the Consumer Protection Act, 1986.”
42. It was therefore held that the injury inflicted has resulted in a situation where the appellant having followed the correct course of litigation in demanding the furnishing of an occupancy certificate would continue to suffer the injury merely on account of delay in the execution of the order. It was therefore in the context of the said case that a continuing cause of action was observed to be existing and orders were passed. As noted above, the decision in the case of SBI vs. BS Agriculture Industries (Supra) does not seem to have been considered nor the provisions of Section 24A of the 1986 Act or Section 69 of the 2019 Act were referred to therein or interpreted.
43. Even otherwise also on the admitted disclosure of the cause of action in this case wayback in 2012, the Complainants have filed a civil suit and therefore it remains undisputed that on the cause of action with regard to non-performance of the obligations regarding the same premises and the deficiencies therein, the Complainants have come up after almost 12 years of the filing of civil suits praying for possession with delay compensation or in the alternative the refund of the amount as the premises has not yet been handed over to them. This position was very much in existence in 2012 and the Complainants did avail of the legal remedy which cannot be said to be an incorrect remedy by filing suits which are still pending and hence the availing of a legal remedy treating it to be a continuing cause of action is already a right asserted by the Complainant in the civil suit that is a voluntarily elected remedy and is admittedly still pending. Even the continuous cause is pleaded and pending adjudication where all such remedies, which are now sought to be reflected as deficiencies, have been or can be availed of and rather ought to be availed of by the Complainants who have themselves elected to file the civil suits almost 12 years ago.
44. Thus these Complaints coming after eleven/twelve years are barred by the provisions of Section 69 of the Consumer Protection Act, 2019, without prejudice to the rights of the Complainants to contest the same before the Civil Court where their civil suits are pending.
45. The claim and the contest by the Complainants was availed of by opting the remedy through filing of the civil suits promptly, and therefore they were not prevented from approaching the concerned forum according to the pecuniary jurisdiction even at that time. It is correct that a large number of litigations arising out of the same project were entertained at different levels including the State Commission of Maharashtra, in suits before the Bombay Civil Court as also the High Court and after the decision of the State Commission in appeals that are pending before this Commission. There are original complaints also filed before this Commission and one of them was referred to in the order passed on 05.09.2023. The proceedings thereof are available on the website and the contest in those cases which are continuing since 2011 have been argued as is evident from the orders passed by this Commission in CC/164/2011 alongwith CC/285/2012 and other connected matters dated 21.09.2023, 25.11.2023, 06.01.2024, 20.01.2024 and 27.04.2024.
46. The Complainants were nowhere prevented from approaching the concerned Forum having pecuniary jurisdiction in the matter and they elected and chose voluntarily to file civil suits.
47. The contention that this was a concurrent remedy available is not doubted but the issue is of availing the remedy under 2019 Act within limitation and after having exercised the option of filing the Civil Suit. A limitation prescribed under Section 69 of the Act cannot be stretched for accommodating a cause of action even though arisen earlier as a continuing cause of action with no bar of limitation. The same would denude the very contents of the limitation prescribed under Section 69 of the Act in the background that no plausible explanation has been given by the Complainants for not having arrived at the Commission for the past 12 years when such similarly situated Complainants had already sought their remedies then. The judgments cited at the bar to contend that the Consumer Protection Act is a beneficial piece of legislation with an objective to provide better protection of the interest of consumers does not say that the period of limitation can be overlooked while considering the issue of limitation or even otherwise the remedy already elected by the Complainants by filing a suit. One of the judgments cited at the bar and noted above delivered by the Madras High Court in the case of National Insurance Co. Ltd. (Supra) even though is a beautiful expression of law, in my opinion supports the view taken herein. The cause of action has been preserved by the Complainant by availing the remedy of the Civil Suits which are pending. The Forum of first choice elected by the Complainants is the Civil Court where the matter has not concluded as yet. The said proceedings have neither been withdrawn nor given up and are still pending. Consequently, the present Complaint even applying the said principles cannot be entertained.
48. In the above background, keeping in view the provisions of Section 100 of the Consumer Protection Act, 2019, even though the Act is in addition to and not in derogation of any other law for the time being in force, cannot be invoked by the Complainants to bypass the limitation period under Section 24 A without any plausible explanation and the doctrine of election to avail of another round of litigation before this Commission. There is no explanation as to what prevented the Complainants to choose this forum when the cause had arisen way back between 2009 & 2012.
49. Even if two remedies were available, the Complainants consciously and voluntarily chose to avail the remedy of civil suits which have continued for more than eleven years, and therefore keeping in view the limitation prescribed as also the pendency of the suits, this is not a case where after eleven years, the Complainants can be extended any benefit of presenting this complaint. The Complaint is therefore barred by time as well as not maintainable for the reasons above but the dismissal of this Complaint shall in no way affect the merits of the claim or the reliefs prayed for by the complainants in the civil suits filed by the Complainants. The Complaint is therefore accordingly rejected.
