PER A.P. SAHI, J., PRESIDENT

Heard Mr. Rajesh Kumar Bhawnani, learned counsel for the appellant, who submits that there was no delay in the filing of the complaint and therefore the dismissal thereof by the SCDRC Chhattisgarh (hereinafter referred to as the State Commission) on the ground that the complaint was presented in violation of Section 24A of the Consumer Protection Act, 1986 (hereinafter referred to as the 1986 Act) is erroneous and the impugned order dated 26.02.2015 deserves to be set aside with a direction to the State Commission to decide the claim on merits.

          The complaint was instituted on 22.02.2014 alleging that the complainant/appellant had purchased plot no. E-50 measuring 1000 sq. ft. for a sum of Rs.9,000/- on 29.06.1984 from the respondent no.1/Samiti through its office bearers who have been arrayed as respondents no. 2 to 12. The sale deed was executed on 04.07.1984.  The complainant/appellant admits having received symbolic possession but denied having received actual physical possession.

          After 7 years of the execution of the sale deed, the complainant/appellant alleges to have moved an application for demarcation of his plot on 25.04.1991 against which an intimation was given on 10.05.1991 that the said plot which was part of Khasra No. 980 had been allotted by the Government to the Maharashtra Viklang Mandal and since the said plot was part of the aforesaid plot no. E-50, demarcation was not possible nor any possession could be given to the complainant/appellant.

          4 years thereafter in 1995 the complainant/appellant alleges to have moved an application 13.12.1995 for taking appropriate steps to deliver the plot and then a legal notice was also sent but no response was shown.  It was then that the complaint was filed and which was admittedly done in 2014 which Mr. Bhawnani submits was rightly done as there was a continuing wrong and therefore the complainant/appellant had a continuing cause of action.

          The complaint was resisted on the ground that such a dispute ought to have been raised before the appropriate authority under the Cooperative Societies Act but the main contention was that the complaint was barred by limitation and hence the same should be dismissed.

          Learned counsel submits that two other letters were also sent on 13.01.2013 and 16.01.2014 and therefore the communication was continuing, hence there was a continuing cause of action.  The State Commission therefore has manifestly erred in invoking Section 24A of the 1986 Act on the facts of the present case and has erroneously rejected the complaint.

          The appeal was filed and was entertained where-after notices were directed to be served.  The representation on behalf of respondents no.1, 2, 5, 6, 8 and 12 seems to have been recorded in the order dated 05.12.2019 and thereafter the Covid intervened, as a result whereof the appeal came to be adjourned.  Nobody appeared for the respondents in 2021 and again in 2022, as a result whereof on 04.08.2022 an order was passed against some of the respondents to proceed ex-parte.  An adjournment was sought on behalf of other respondents as per the order dated 04.08.2022 extracted hereunder:

“None for the parties.

         Respondents No.3, 4, 7, 9, 10 and 11 are absence despite service.  They are proceeded ex parte.

A letter seeking adjournment has been circulated on behalf of Respondents No.1, 2, 5, 6, 8 and 12.

          In the interest of justice, the matter is adjourned.  Matter be listed again for final hearing.”

          Learned counsel for the complainant/appellant has heavily relied on the judgment in the case of Yagnik Surana Vs. Natural Estates and Ors. (Revision Petition No.1131 of 2015) decided on 12.07.2016 alongwith other Revision Petitions, where the following observations were made:

          “As noted above, the short ground on which the State Commission has dismissed the Complaint is that the Complaints were barred by limitation, as the cause of action had arisen on 19.5.2001, when the Complainants had paid the last instalment towards the cost of the plot but the Complaint had been filed on 12.3.2012.  We have perused the Written Version filed on behalf of the Opposite Parties, particularly para-10 thereof, wherein it is stated that because the Complainants had not completed their part of the contract within the fixed time and the process of allotment of plot had not been completed, the said plot is still “kept safe” and therefore, the Complainants have no legal right on the said plot.  In our view, in the light of the said averment, in so far as the Opposite Parties are concerned, they had not closed the transaction by cancelling the allotment of plots in favour of the Complainants.  That being so, the District Forum was justified in coming to the conclusion that it was a case of continuing cause of action, till the possession of the plots in question was delivered.   In the entire Written Version, the Opposite Parties have not stated as to what further formalities were required to be completed by the Complainants before the possession of the plots, allotted to them against consideration, could be delivered.”

          The aforesaid order of this Commission was taken up in Appeal before the Apex Court in Civil Appeal No.854-861 of 2021. The builder has approached the Apex Court where noticing certain peculiar facts, the Apex Court does not seem to have entered into the merits of the matter in view of the settlement that was made by the Apex Court as was discussed in paragraph 10 to 14 thereof. The aforesaid settlement did not therefore amount to any declaration of law and the matter was disposed of by directing certain payments to be made as observed therein.

          Another decision relied on by the learned Counsel is on the order passed by this Commission in RP/3723/2013 M/s Vyas Enterprises Vs. Das Darshan Cooperative Housing Society Ltd decided on 01.05.2014.

          The contention therefore raised is that there is a continuing cause of action, inasmuch as the possession of the plot has not been delivered till date and therefore this is a continuing injury and a wrong which gives a continuing cause of action.

          The State Commission has relied on several judgments that have been extracted therein and in addition thereto, it would be apt to mention the judgment of the Apex Court in the case of SBI v. B.S. Agriculture Industries (I), (2009) 5 SCC 121, where the Apex Court in paragraphs-11 to 15 has held as follows:

11. Section 24-A of the Act, 1986 prescribes limitation period for admission of a complaint by the consumer fora thus:

“24-A. 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 sub-section (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 the 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 the 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. [(2003) 9 SCC 505] while dealing with an aspect of limitation for an application for refund prescribed in the 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 [(2006) 1 SCC 164] 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 v. Parvatini Amarendra Chowdhary [(2007) 10 SCC 296] 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.”

          The latest judgment on this issue of continuing cause of action is by the Apex Court in the case of Samruddhi Cooperative Housing Society Ltd. Vs. Mumbai Mahalaxmi Construction Pvt. Ltd., (2022) 4 SCC 103.  The said case was examining the deficiency alleged by the complainants therein about excess taxes and charges and which the complainants had to pay to the Municipal Authorities on account of non-availability of occupancy certificate.  The case of the complainants was that they had to pay higher taxes and water charges to the Municipal Authorities on account of non-availability of the occupancy certificate which the builder had failed to provide.  This was treated to be a continuing wrong as the non-availability of the occupancy certificate was continuous which gave a cause of action to the complainants.  It was therefore held that the complaint was not time barred in terms of Section 24A of the 1986 Act.

 However, while proceeding to consider the concept of a continuing injury, a continuing wrong and a continuous cause of action arising therefrom, the Apex Court analyzed the law on the subject as contained in paragraphs 11 to 18 extracted hereunder

“11. The crux of the appeal revolves around the maintainability of the complaint and whether it is barred by limitation. Ncdrc held [Samruddhi Coop. Housing Society Ltd. v. Mumbai Mahalaxmi Construction (P) Ltd., 2018 SCC OnLine NCDRC 1711] that the cause of action arose when the municipal authorities asked the appellant to pay higher charges in the first instance and thus, a complaint should have been filed within two years of the accrual of the cause of action. The appellant however, has argued that the cause of action is of a continuing nature, since members of the appellant have continued paying higher charges as the respondent failed to provide the occupancy certificate.

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.

14. Speaking for the three-Judge Bench, P.B. Gajendragadkar, J. (as the learned Chief Justice then was) observed that : (Balakrishna case [Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, 1959 Supp (2) SCR 476 : AIR 1959 SC 798] , AIR p. 807, para 31)

“31. … Does the conduct of the trustees amount to a continuing wrong under Section 23? That is the question which this contention raises for our decision. In other words, did the cause of action arise de die in diem as claimed by the appellants? In dealing with this argument it is necessary to bear in mind that Section 23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that Section 23 can be invoked.”

(emphasis supplied)

The Court held that the act of the trustees to deny the rights of Guravs as hereditary worshippers and dispossessing them through a decree of the court was not a continuing wrong. Although the continued dispossession caused damage to the appellants, the injury to their rights was complete when they were evicted.

15. In CWT v. Suresh Seth [CWT v. Suresh Seth, (1981) 2 SCC 790 : 1981 SCC (Tax) 168] , a two-Judge Bench of this Court dealt with the question of whether a default in filing a return under the Wealth Tax Act amounted to a continuing wrong. E.S. Venkataramiah, J. (as the learned Chief Justice then was) observed that : (SCC pp. 798-99, para 11)

“11. … The distinctive nature of a continuing wrong is that the law that is violated makes the wrongdoer continuously liable for penalty. A wrong or default which is complete but whose effect may continue to be felt even after its completion is, however, not a continuing wrong or default. It is reasonable to take the view that the court should not be eager to hold that an act or omission is a continuing wrong or default unless there are words in the statute concerned which make out that such was the intention of the legislature. In the instant case whenever the question of levying penalty arises what has to be first considered is whether the assessee has failed without reasonable cause to file the return as required by law and if it is held that he has failed to do so then penalty has to be levied in accordance with the measure provided in the Act. When the default is the filing of delayed return the penalty may be correlated to the time lag between the last day for filing it without penalty and the day on which it is filed and the quantum of tax or wealth involved in the case for purposes of determining the quantum of penalty but the default however is only one which takes place on the expiry of the last day for filing the return without penalty and not a continuing one. The default in question does not, however, give rise to a fresh cause of action every day. Explaining the expression “a continuing cause of action” Lord Lindley in Hole v. Chard Union [Hole v. Chard Union, (1894) 1 Ch 293 : 63 LJ Ch 469 : 70 LT 52 (CA)] observed : (Ch pp. 295-96)

‘… What is a continuing cause of action? Speaking accurately, there is no such thing; but what is called a continuing cause of action is a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought.’ ”

(emphasis supplied)

16. The Court further provided illustrations of continuous wrongs : (Suresh Seth case [CWT v. Suresh Seth, (1981) 2 SCC 790 : 1981 SCC (Tax) 168] , SCC p. 800, para 17)

“17. The true principle appears to be that where the wrong complained of is the omission to perform a positive duty requiring a person to do a certain act the test to determine whether such a wrong is a continuing one is whether the duty in question is one which requires him to continue to do that act. Breach of a covenant to keep the premises in good repair, breach of a continuing guarantee, obstruction to a right of way, obstruction to the right of a person to the unobstructed flow of water, refusal by a man to maintain his wife and children whom he is bound to maintain under law and the carrying on of mining operations or the running of a factory without complying with the measures intended for the safety and well-being of workmen may be illustrations of continuing breaches or wrongs giving rise to civil or criminal liability, as the case may be, de die in diem.”

17. In M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das [M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1] , a Constitution Bench of this Court [of which one of us (D.Y. Chandrachud, J.) was a part] examined the precedents with regard to a continuing wrong. The Court observed that : (SCC p. 369, para 343)

“343. The submission of Nirmohi Akhara is based on the principle of continuing wrong as a defence to a plea of limitation. In assessing the submission, a distinction must be made between the source of a legal injury and the effect of the injury. The source of a legal injury is founded in a breach of an obligation. A continuing wrong arises where there is an obligation imposed by law, agreement or otherwise to continue to act or to desist from acting in a particular manner. The breach of such an obligation extends beyond a single completed act or omission. The breach is of a continuing nature, giving rise to a legal injury which assumes the nature of a continuing wrong. For a continuing wrong to arise, there must in the first place be a wrong which is actionable because in the absence of a wrong, there can be no continuing wrong. It is when there is a wrong that a further line of enquiry of whether there is a continuing wrong would arise. Without a wrong there cannot be a continuing wrong. A wrong postulates a breach of an obligation imposed on an individual, whether positive or negative, to act or desist from acting in a particular manner. The obligation on one individual finds a corresponding reflection of a right which inheres in another. A continuing wrong postulates a breach of a continuing duty or a breach of an obligation which is of a continuing nature. …

Hence, in evaluating whether there is a continuing wrong within the meaning of Section 23, the mere fact that the effect of the injury caused has continued, is not sufficient to constitute it as a continuing wrong. For instance, when the wrong is complete as a result of the act or omission which is complained of, no continuing wrong arises even though the effect or damage that is sustained may enure in the future. What makes a wrong, a wrong of a continuing nature is the breach of a duty which has not ceased but which continues to subsist. The breach of such a duty creates a continuing wrong and hence a defence to a plea of limitation.”

(emphasis supplied)

18. A continuing wrong occurs when a party continuously breaches an obligation imposed by law or agreement. Section 3 of the MOFA imposes certain general obligations on a promoter. These obligations inter alia include making disclosures on the nature of title to the land, encumbrances on the land, fixtures, fittings and amenities to be provided, and to not grant possession of a flat until a completion certificate is given by the local authority. The responsibility to obtain the occupancy certificate from the local authority has also been imposed under the agreement to sell between the members of the appellant and the respondent on the latter.”

          It may further be pointed out that in the case of Shree Ram Mills Ltd. Vs. Utility Premises (P) Ltd., (2007) 4 SCC 599, the Apex Court while relying on the observation in the case of Hari Shankar Singhania Vs. Gaur Hari Singhania, (2006) 4 SCC 658, opined on the construction of Article 137 of the Limitation Act in reference to an application under Section 20 of the Arbitration Act 1940 observing that where negotiations were still on, there would be no question of starting of the limitation period.  It was held in para-30 as follows:

“30. Once we have come to the conclusion that the learned designated Judge was right in holding that there was a live issue, the question of limitation automatically gets resolved. This Court in Hari Shanker Singhania case [(2006) 4 SCC 658] held that till such time as the settlement talks are going on directly or by way of correspondence no issue arises and with the result the clock of limitation does not start ticking. This Court observed: (SCC pp. 667-68, para 24)

“24. Where a settlement with or without conciliation is not possible, then comes the stage of adjudication by way of arbitration. Article 137, as construed in this sense, then as long as parties are in dialogue and even the differences would have surfaced it cannot be asserted that a limitation under Article 137 has commenced. Such an interpretation will compel the parties to resort to litigation/arbitration even where there is serious hope of the parties themselves resolving the issues. The learned Judges of the High Court, in our view have erred in dismissing the appellants' appeal and affirming the findings of the learned Single Judge to the effect that the application made by the appellants under Section 20 of the Act, 1940 asking for reference was beyond time under Article 137 of the Limitation Act. … As already noticed, the correspondence between the parties, in fact, bears out that every attempt was being made to comply with and carry out the reciprocal obligations spelt out in the agreement between the parties.”

These observations would clearly suggest that where the negotiations were still on, there would be no question of starting of the limitation period.”

          The facts in the present case speak for themselves and which is on record.  The sale-deed was executed in 1984.  The complainant/appellant was therefore well within his right to claim possession for which he made attempts for demarcation only after 7 years of the execution of the sale-deed as per the letter of the respondents dated 10.05.1991 by which the complainant/appellant was informed about non-availability of the plot, with an assurance that if any such premises is made available in future, an alternative plot shall be allotted to him.  The aforesaid letter therefore establishes that the complainant/appellant was aware of the non-availability of the plot throughout and it took 7 years for him to register his demand.  The promise to give an alternative plot cannot be an unending assurance and therefore another attempt seems to have been made thereafter, through an alleged letter dated 13.12.1995. 

This continuous correspondence leaves no room for doubt that the land purchased in 1984 was not physically delivered to the complainant/appellant, and he at intervals of 7 years and another 4 years thereafter claims to have sent letters without any response.  This alleged sending of letters at huge intervals, in our opinion cannot make the injury to be a continuing one, inasmuch as the fact remains that no plot of land was delivered to the complainant/appellant and there were no continuing negotiations established, except unilateral communications referred to above.  In these peculiar circumstances, the complaint was filed in 2014 which is 30 years after the execution of the sale-deed in 1984 and after 19 years of the letter dated 13.12.1995.  The scope and ambit of Section 24A of the 1986 Act applying the principles enunciated in the decisions referred to above cannot be stretched on such facts as on record.  The limitation under Section 24A as prescribed would become meaningless and contrary to what has been held in the case of SBI v. B.S. Agriculture Industries (I) (Supra) referred to hereinabove on the peculiar facts that have emerged in this case.

          Even otherwise, this was a sale of immovable property which the complainant/appellant alleges to be a housing construction plot and no prudent man would keep waiting endlessly for decades together to ignite a process on the cause of action which practically had commenced way back in 1984 itself.

          The order passed by this Commission in the case of Yagnik Surana (Supra), that was settled on its own terms by the Apex Court, was about the registration of certain plots which had not been carried out even though the last installment had been paid towards the cost of the plots on 19.05.2001. The complaint was filed eleven years thereafter on 12.03.2012. The objection taken by the builder/developer was that the Complainants had not completed their part of the contract within the timeline and therefore the process of allotment had not been completed. Nonetheless the plot was still “kept safe” but the Complainants had no legal right over the said plot. As quoted above, this Commission held that since the transaction had not been closed by cancelling the allotment of plots in favour of the complainant, therefore as admitted since the plot was kept safe, there was a continuing cause of action till the possession of the plots were delivered. It was also found as a matter of fact by this Commission that there was no indication as to what further formalities were required to be completed by the Complainants. It was a case where the registration of the property could not be made and the project had been ultimately closed. Thus, in those circumstances it was taken to be a continuing cause of action but the Apex Court without going into the said issue settled the matter on the terms that are contained in the order of the Civil Appeals filed before it allowed on 10.03.2021. In our considered opinion, the facts of the said case are entirely different where the cause of action of non-registration of plots that were “kept safe” was found to be a continuing wrong and it was accordingly directed to compensate the Complainants by the Apex Court ultimately through its order of settlement.  

          The other order relied by the learned Counsel in the case of M/s Vyas Enterprises (Supra) was a case where once again, the property had not been conveyed to the members of a cooperative housing society and hence it was treated as a continuing cause of action. Relying on certain other orders passed by this commission and affirmed by the Apex court, it was held that the claim could not be treated to be barred by time. This case is also distinguishable inasmuch as there was no conveyance of the property.

          In the present case, the property had been openly sold for a sum of Rs.9,000/- to the Complainant through a sale deed that was registered in 1984. The complainant according to his own disclosure was well aware of the status of the property and the knowledge about it not being capable of being conveyed in 1991 and then again in 1995. In these circumstances as noted above, the Complainant waiting for 30 long years on the facts of the present case without any reasonable explanation cannot be treated to be case of continuing wrong as the injury had already been caused long back giving rise to a cause of action decades ago.

The judgments therefore relied on by the learned Counsel for the appellant cannot come to his aid on the peculiar facts of this case. We do not find this to be a fit case with the evidence on record for interference with the impugned order. The Appeal therefore lacks merit and is dismissed affirming the order of the State Commission for all the reasons given hereinabove.