(Delivered on 05/05/2022)

PER SHRI A. Z. KHWAJA, HON’BLE JUDICIAL  MEMBER.`

1.         Appellant Mrs. Bhawana Sanjay Sachdev, has preferred the present Appeal    under Section 15 of the Consumer Protection Act, 1986 feeling dissatisfied  by the impugned judgment and  order dated 10/03/2015 passed by the learned  Additional District Consumer Commission, Nagpur  in Consumer Complaint No. 125/2014 , whereby the complaint filed by the complainant/appellant came to be dismissed.

2.         Short facts leading to filing of the present complaint may be narrated as under,

            Complainant/appellant – Mrs. Bhawana Sachdev claims to be resident of Gajanan Nagar, Nagpur. The O.P./respondent- Shri Balaji Realtors were builders and developers and had started a scheme of construction of apartments namely Shri Balaji Tower-II at Mouza Beltarodi. The complainant /appellant decided to purchase flat Nos. 203 and 204 in the said scheme. The complainant /appellant also paid Rs. 51,000/- on 30/10/2009 and Rs. 7,00,000/- on 29/11/2009 and Rs. 1,00,000/- on 14/12/2009.  The complainant / appellant therefore paid total sum of Rs. 8,51,000/- for  purchase of  the flats,  on the assurance that the flats will be completed within stipulated period and possession of the flats will be handed over. The complainant /appellant  came to know  that  even after  the payments  of the entire consideration of Rs. 8,51,000/- the O.P./respondent had not even started the construction of the building and had played fraud with the complainant/ appellant.  The complainant  therefore  approached to  the O.P./respondent  and demanded possession  of the flats or the refund of Rs. 8,51,000/- but instead the O.P./respondent  refused  to  hand over the possession of the flats  or to refund  amount Rs. 8,51,000/-. The complainant /appellant  then issued legal notice to the O.P./respondent  on 07/06/2014 and demanded  the possession  of the flat Nos. 203 and 204 or in alternative  refund  of amount of Rs. 8,51,000/- along with interest,  but there was no response  and so the complainant  filed  Consumer Complaint  alleging deficiency  in service.

3.         It is contended on behalf of the complainant/ appellant that after filing of the Consumer Complaint under  the previous Consumer Protection Act, 1986 due notices were issued to the O.P./respondent  but O.P./respondent  failed to appear  before the learned District Consumer Commission, Nagpur. The learned District Consumer Commission, Nagpur  thereafter  went  through  the contents of the complainant   and came to the conclusion  that  the complainant/appellant had  with  parted with  last amount  of 14/12/2009 and  also  demanded possession  from 2009 to 2013. The learned Additional District Consumer Commission, Nagpur  came to the conclusion  that  the  complainant  should have filed the complaint  till 14/12/2011 within  two years from the date of cause of action but the complainant came to be filed  on 07/08/2014 after delay of 5 years. The learned Additional District Consumer Commission, Nagpur therefore came to the conclusion that the complaint  was barred by limitation  as not being filed  within two years from the date of cause of action and  so the .

4.         We have heard learned advocate Mr. Abhijit Deshmukh for the appellant.  The appellant has taken a plea that the learned Additional District Consumer Commission, Nagpur has not appreciated the facts on record and has arrived at erroneous finding that the complaint was barred by limitation. The appellant has contended that though the flat Nos. 203 and 204 were booked with the respondent on 30/10/2009, the appellant had paid amount of consideration on 14/12/2009. The appellant has contended that after the payment of consideration she was continuously in touch with the respondent and was also demanding the possession and completion of the project from time to time.  No doubt, the appellant  has not filed  any agreement  on the record but the appellant  has placed  on record the copies of the receipts  regarding  payment of amount of Rs. 8,51,000/- Subsequently, the appellant had issued a legal notice to the respondent on 07/06/2014 calling upon the respondent to complete the work and informed the  progress. Further it is submitted on behalf of the appellant that the learned Additional District Consumer Commission, Nagpur has not considered the legal aspect in a proper prospective. In this regard it is submitted on behalf of the appellant that  cause of action  in  regard the claim of the possession  was  always continuous  cause of action. On this  aspect the appellant  has heavily relied upon  series  of judgments namely  Lata Construction  Vs. Dr. Rameshchandra Ramniklal Shah, reported in  AIR 2020 Supreme Court 380, Meerut Development Authority Through  its Secretary, Meerut Vs. Ashok Kumar Sood, reported in 2012(4) CPR 220 (NC),  and Hanshmukh Patel & Ors. Vs. Dr. Sunil Kumar Majhi and Ors., reported in 2012(4) CPR 362 (NC).

5.         We have gone through these judgments.  In the case of  Lata Construction  Vs. Dr. Rameshchandra Ramniklal Shah, (cited supra), the Hon’ble Supreme Court was dealing with  delivery of possession  of the flat and it was observed that the claim for possession  was ‘continuous cause of action’.  Similar view has also been taken in the other judgments delivered by the Hon’ble  National Commission. Further  the appellant has relied  upon one more judgment  in the case of Dr. Navin Khanna and 3 Ors. Vs. Unitech Reliable Projects Pvt. Ltd, decided by the Hon’ble National Consumer Commission,  on 11/04/2016 wherein  similar view has been taken.

6.         In view of the  aforesaid judgments, the law  is now firmly settled  that  in case  claim   of the possession of  the flat same would constitute  continuous  cause of action .  No doubt  in the present case  the appellant  had not filed  an agreement  on record but appellant has placed on  record copies of payment receipts  as well as copy of  notice which  gives  continuous  cause of action  to file the present complaint.  We therefore, feel that the learned Additional District Consumer Commission, Nagpur has committed error in giving the said finding and so the order passed by the learned Additional District Consumer Commission, Nagpur will have to be set aside and complaint needs to be remanded back  to learned Additional  District Consumer Commission, Nagpur for disposal  afresh as per law.  In view of the same  the appeal is hereby allowed and so we proceed to pass the following order.

ORDER

i.          Appeal is hereby  partly allowed

ii.          Impugned order dated 10/03/2015 passed by the learned Additional District Consumer Commission, Nagpur in Consumer Complaint No. 125/2014 is hereby set aside. Complaint is remanded back to the learned District Consumer Commission, Nagpur for fresh disposal in accordance with law.

iii.         Copy of order be furnished  to both the parties, free of cost.