This first appeal has been filed by the appellant, Udam Lal Singla and another   against order dated 23.12.2014 passed by the State Consumer Disputes Redressal Commission,  U.T. Chandigarh  (  for short, State Commission)  passed in Consumer Complaint  No.98 of 2014. 

2.      Brief facts of the case are that on 04.04.2011, the complainants, acting on the assurances given by the opposite parties, purchased a plot from them in re-sale from earlier allottee Mr. Kapil Dev Khullar and Ms. Sanju Khulllar. The above mentioned plot admeasuring 300 sq. yards was purchased by the complainants for a total sum of Rs. 42,28,438/-, inclusive of the transfer charges. As per the Agreement dated 04.07.2007 entered into between the opposite parties and the original allottees, possession of the plot was to be delivered within a period of two years from the date of execution of the Agreement and not later than three years. It was the case of the complainants that despite timely payments, the opposite parties failed to deliver physical possession of the plot and execute the sale deed as per commitment made in the Agreement dated 04.07.2007. Alleging deficiency in service, the complainants filed a consumer complaint before the State Commission seeking refund of the amount paid to the opposite parties.

3.      Upon service of notice, the opposite parties contested the complaint on the ground that the complaint was time barred. It was further contested that as per the law laid down in HUDA Vs. Raje Ram, AIR 2009 SC 2030, the complainants, being re-allottees, cannot claim compensation or interest for delay in possession as they cannot claim parity with the original allottees.    It was submitted that it was well within the knowledge of the complainants that possession was duly offered to the original allottees vide letter dated 28.12.2009 and the complainants had voluntarily purchased the same from the original allottees in the year 2011. It was further submitted that despite reminder letter dated 16.12.2011, the complainants failed to take over possession. Denying allegations made in the complaint, the opposite parties prayed that the complaint may be dismissed.

4.      The State Commission after considering submission of both the parties, dismissed the complaint on the ground of being barred by limitation vide its order dated 23.12.2014.

5.      Hence, the present appeal.

6.      Heard  the learned counsel for the parties and perused the record.

7.      The learned counsel for the appellants stated that the State Commission has not appreciated the correct facts in regard to the correspondence between the parties and particularly the letter of final possession dated 12.5.2014. The State Commission has held that limit would start to run either from 28.12.2009 i.e. offer of possession by the respondents to the original allottees whereby  offer of possession was made without even initiation of development works at the project site or from 4.4.2011 when the appellants/complainants stepped into the shoes of the original allottees. The fact of the matter is that the appellants/complainants came into the picture for the first time only on 4.4.2011 when the transfer fee was deposited with the OP-1 & 2. Thus, there was no question of any knowledge of the letter dated 28.12.2009 to the complainants. In fact, the OP informed the complainants vide their letter dated 12.5.2014 that they are commencing the process of conveying the deed and that a payment of Rs.7,55,885/- was sought from the complainants.  This letter dated 12.5.2014 mentions at the top that this letter is in furtherance to the intimation of possession letter dated 28.12.2009. This  simply means that no other letter was issued in respect of the possession to the complainants. Moreover, the grievance of the complainants started when the complainants received the letter dated 12.5.2014 wherein an unscrupulous demand of Rs.7,55,885/- was made by the OP. This demand was not shown on the letter dated 28.12.2009 and that itself shows that letter dated 28.12.2009  was not the final offer of possession.  The final possession offer was only made vide letter dated 12.5.2014 alongwith unjustified demand and that is why the complainants decided to request  for the refund as the plot was becoming unsustainable for them. As the cause of action starts only on 12.5.2014, the limitation period should start from that date and not from any other previous date. The  complaint has been filed on 21.8.2014. Thus, the complaint is well within time and there is no question of any delay in the matter.

8.      The learned counsel for the appellants further argued that the legal possession cannot be given without obtaining the completion certificate and without completing the development works as promised in the agreement. The OP has not obtained the completion certificate so far and development works are also not complete. The learned counsel also pointed out that letter dated 28.12.2009 clearly states that the development activities in Sectors 105,108 and 109 are in full swing.  This clearly means that the development activities were not complete by that time.  Even on 12.5.2014 the OP was not entitled to legally handover the possession because OP had not received the completion certificate by then from the competent authority. The learned counsel further pointed out that there was no approach road to the plot in question and the OP was requested several times to provide  the approach road before handing over the possession. This Commission in another case relating to similar plots in Sector 109 where the same OP has taken the same plea but this Commission has not agreed with the arguments of the OP in R.P. No. 01 of 2016    titled as Kalidas Sangar  and another vs. Shri Mati Anjali Chakraborty and another with other revision petitions wherein this Commission has passed the following order dated 3.10.2016:

“In our view, having rightly observed that non-execution of Sale Deed in respect of the units/flats in question, purchased by the Complainants in terms of the Sale Agreement dated 26.8.1994 was a continuing cause of action, both the Forums below have committed material irregularity in dismissing the Complaints as barred by limitation under Section 24A of the Consumer Protection Act, 1986.”

9.      Based on the above judgment,  the learned counsel argued that cause of action shall continue till the execution of sale deed.

10.    Similarly the learned counsel referred to the judgment  in FA NO.709 of 2016 titled as Emaar MGF Land Ltd. vs. Mandeep Saini with other First Appeals, wherein this Commission observed as under:

“It is vehemently argued by Mr.Aditya Narain, learned counsel appearing for the Appellant that since the delay in delivery of possession of the flats in Sectors 104, 106, 108 and 109 is directly attributed to the sealing of the main access road to these Sectors by the Forest Department, one of the factors which weighed with the State Commission, falls within the ambit of force majeure clause in the agreement, there is no deficiency in service on the part of the Appellant in its alleged failure to deliver the possession of the subject flats in question by the committed time.  He thus prays that ex parte ad interim stay may be continued. 

Prima facie, we are not convinced with the submission.  Hence, without expressing final opinion on the issue but having regard to the fact that the sealing orders have not yet been revoked and the Appellant is still not in a position to deliver possession of the fully developed flats with proper access, to the Complainants, we direct that the Appellant shall deposit in this Commission the principal amount(s) deposited by the Complainants with them, within 6 weeks from today.  On deposit of the said amount(s), it will be open to the Complainants to withdraw the said amount, on filing affidavits, undertaking to this Commission that they will refund the amount(s) withdrawn, if so directed at the time of final disposal of the Appeals.  Subject to the said deposits, the operation of the remaining directions, regarding interest, compensation, etc., in the impugned order shall remain stayed.”

11.    Learned counsel referred to the judgment Mopar Builders and Developers Pvt. Ltd. vs. Unity Co-op Housing Society Ltd.  I(2011) CPJ 71 (NC)  to argue that the cause of action shall continue till the completion and occupation certificates are obtained. The relevant portion of this judgment  reads as under:

“The RP/OP has also raised the plea that the complaint is time-barred, on the ground that the possession had been handed over to the purchasers during 1993-1995 period, while the complaint to the District Forum was made in 2007.  This argument cannot be accepted as the completion certificates and occupancy certificates, as observed by the State Commission, have not been made available to the purchasers/occupants. In  fact, the RP/OP himself states in his petition to this commission that “conveyance of the said plot cannot be given at this time as the project approved on the said plot is not yet completed and work of the remaining buildings are under progress.” It is therefore a clear case of continuing cause of action.”

12.    On the other hand, learned counsel for the respondents no.1 and 2/OPs stated that the copy of the letter dated 28.12.2009 was endorsed to the complainant when the approval letter for change of the name in the allotment was  issued in favour of the complainants. The learned counsel further drew my attention to the fact  that letter dated  16.12.2011 was issued by the OPs to the complainants informing them that pursuant to the offer of possession sent to the complainants,the complainants may apply to the Estate Officer, GMADA  for the sanction of the building plans to initiate construction on the plot in question. Thus, the complainants were very much aware that the offer of possession was already issued in respect of the plot in question. The learned counsel emphasized that it is wrong to say that the final offer of possession was sent on 12.5.2014. Accordingly, the complaint was filed beyond the period of limitation and the State Commission has rightly dismissed  the complaint on the ground of limitation.

13.    The learned counsel for respondent no.3 stated that respondent no.3 is only a proforma party in this case and  the main dispute is between appellants and respondents no.1 and 2.

14.    I have carefully considered the arguments of both the parties and have gone through the material on record. From the body of the complaint, it is clearly brought out that the complainants were  aggrieved by the letter dated 12.5.2014 wherein additional demand of Rs.7,55,885/- was made by the OPs.  I find force in the arguments of the learned counsel for the appellants that cause of action continues until the conveyance deed is registered and completion certificate is obtained by the OP in respect of the property in question and this view is supported by the judgments cited by the learned counsel for the appellants. Clearly in the present case, all the development works were not complete as evidenced from the statement made in the letter dated 28.12.2009 as well as in the letter dated 16.12.2011 issued by the OP.

15.    The Hon’ble Supreme Court in Transport Corporation of India Lt. Vs. Veljan Hydrair Ltd.,  II (2007) CPJ35(SC) has observed as under:

      11. Section 24A of the Consumer Protection Act, 1986 provides that neither the District Forum nor the State Commission nor the National Commission shall admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. The term “cause of action” is of wider import and has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. It refers to all circumstances or bundle of facts which if proved or admitted entitles the plaintiff (complainant) to the relief prayed for….”

16.    In this case,  the cause of action has arisen on the basis of bundle of facts including receipt of letter dated 12.5.2014. An additional demand of Rs.7,55,885/- was made which was not justified according to the complainants.  The complaint has been filed on 21.8.2014. Thus, the complaint has been filed within two years of the cause of action which started on 12.5.2014 and still continued till the date of obtaining the completion certificate by the OP. Accordingly, I am of the view that he State Commission has grossly erred in dismissing the complaint on the ground of limitation.

17.    Based on the above discussion, the First Appeal No.113/2016 is allowed and the order dated 23.12.2014 passed by the State Commission in CC No.98 of 2014 is set aside.  The matter is remanded back to the State Commission with the direction that complaint  case may be restored to its original number and the same be decided on merits after giving opportunity to both the parties of being heard.

18.    Parties to appear before the State Commission on  21.12.2017.