State Consumer Disputes Redressal Commission
Kum. Antariksha Walawaikar vs Mr. Paresh Madeva Pai, on 11 April, 2014
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI -GOA MA(CD) 08/2014 Kum. Antariksha Walawaikar, Since minor, represented by his Father Suhas M. Walawaikar, Advocate, r/o. Mr. Rodregues Bungalow, Near Devashri Splendar, Opp. Dr. Pinto Rosario Garden, Alto Porvorim Bardez Goa. . Applicant v/s 1. Mr. Paresh Madeva Pai, Proprietor of M/s. Heritage Infrastructures & Projects, having office at Above Punjab & Maharashtra Bank, Near Chapel, Caranzalem, Taleigao, Tiswadi Goa. 2. Mrs. Jayee Kirve, Officer of State Bank of India, Major, r/o Flat No. T-2, 3rd Floor, Madhuban Heritage, Near Caculo Ford Show Room, Sant-Inez, Panaji Goa. 3. The State Bank of India, Through its Dy. General Manager, Having its head office near Hotel Mandovi, Panaji Goa. .. Respondents Complainant is represented by guardian Adv. Shri. S.M. Walawaikar. OP No. 1 is represented by Adv. Shri. Mugaonkar. OP No. 2 is represented by Adv. Shri. S. Samant. OP No. 3 exparte. Coram: Shri. Justice N. A. Britto, President Smt. Vidhya R. Gurav, Member Dated: 11/04/2014 ORDER
[Per Justice Shri. N. A. Britto, President] Complainants consumer complaint filed on 23/10/13 came up for final disposal on 27/3/14 when the complainant filed the present application under Section 24A (2) of the C.P. Act, 1986 for condonation of delay in filing the complaint, and, this order shall disposed off the said application.
2. Presumably, the application for condonation of delay has been filed to overcome the plea of limitation taken by OP No. 1, in his written version filed on or about 9/12/13, stating that the complainant has based his complaint on the allegation that the agreement for construction cum sale was executed on 22/07/06 by which OP No. 1 had agreed to construct and sell flat No. T-2 on the 3rd floor of the building known as Madhuban Heritage for a total consideration of Rs. 10 lacs and that the said flat was to be delivered within 12 months from the date of execution of the said agreement on or before 22/07/07 and that last payment was made in July 2006, and, therefore, the complaint which has been filed on 9/10/13 more than 7 years after the alleged last payment and more than 6 years after the expiry of the date for delivery of the flat, is clearly time barred, the same having been filed beyond the period of 2 years prescribed in Section 24A of the C.P. Act, 1986 and the complaint is not accompanied by any application for condonation of delay.
3. The complainant is a minor, having been born on 24/12/1999.
4. The Complainant entered into the said agreement dated 22/07/06 styled as an agreement for construction-cum-sale through his father Shri. S. M. Walawaikar, advocate, and, the case of the complainant is that the complainant has paid a sum of Rs. 8.5 lacs out of Rs. 10 lacs as consideration for construction of the said flat and the said flat was to be delivered before 22/06/07 and in terms of Clause 8 of the said agreement a written notice was required to be given to the complainant about the completion of the flat calling upon the complainant to take delivery of the said flat on payment of Rs. 1.5 lacs and the complainant through his said father contacted OP No. 1 on phone and personally several times till the end of April 2012 and requested OP No. 1 to deliver the said flat and the complainants father was informed that occupancy certificate was not obtained and he was assured that the flat would be delivered as soon as the occupancy certificate was received. It is also the claim of the complainant that on 21/05/12 complainants father visited the said flat and to his great surprise he found that the said flat was physically occupied by OP No. 2. As far as this aspect of the case is concerned, there appears to be no dispute, that by agreement of sale dated 16/06/10 the said flat was agreed to be sold to OP No. 2 by OP No. 1 and which in fact has now been sold by registered deed dated 12/09/11, after OP No. 2 has taken a housing loan from OP No. 3. OP No. 2 claims that she is a bonafide purchaser of the said flat.
5. First, we would take up for consideration the plea of limitation as put forward by Shri. Mulgaonkar, the lr. advocate of OP No. 1 and endorsed by Shri. S. Samant, the lr. advocate of OP No. 2.
6. The submission made on behalf of the OP Nos. 1 and 2 is that the possession of the flat was to be delivered on or before 22/06/07 and therefore the period of two years for filing the complaint as contemplated by Section 24A (1) has got to be reckoned from that date and complaint which has been filed on 23/10/13 is clearly time barred.
7. Shri. Walawaikar on behalf of the complainant, presumably, by way of an answer to the said submission has placed reliance on Lata Construction and ors. vs. Dr. Rameshchandra Ramniklal Shah and anr., AIR 2000 SC 380 wherein the Apex Court has held as follows:-
Since the rights under the Act of 1987 had not been given up and the appellants were constantly under an obligation to provide a flat to the respondents and deliver possession thereof to them, the Commission rightly treated cause of action to be continuing cause of action and came to the right conclusion that the claim was not beyond time.
8. Admittedly, in terms of the agreement dated 22/06/06, the suit flat has not been delivered to the complainant on 22/06/07 nor its delivery has been refused at any time. The complainant claims that he came to know on 21/5/12 that the flat was occupied by OP No. 2 and so he sent notice dated 22/5/12. The complainant has pleaded that OP No. 1 has failed to comply with notice dated 22/05/12. According to the complainant, the cause of action arose on expiry of notice period on 7/2/12, and, therefore the complaint is well within time. Shri. Walawaikar has also maintained that the complaint filed by the complainant is within time and the application for condonation of delay has been filed only by way of abundant caution.
9. We are not inclined to accept the submissions made on behalf of the OPs. In our view, the objection regarding limitation taken by OP Nos. 1 and supported by OP No. 2 cannot be entertained. This State Commission has taken a consistent view that when no possession is handed over as stipulated in the agreement nor refused, the cause of action has got to considered as continuous or recurring. In FA No. 26/13 in the case filed by Mr. Francisco M. Cortez, by unreported order dated 18/09/13 this Commission has held as follows:-
Since no possession has been handed over to the Complainants of the apartments booked by them on 13/12/2006 although the Complainants claim that they have paid the entire amount due to the Opposite Parties, nor a sale deed executed, these would be cases of recurring cause of action. In other words, the causes of action would continue till such time the possession is handed over to the Complainants and sale deed is executed. In this context we may refer to Meerut Development Authority, 2012 (4) CPR 220, wherein the National Commission followed the view expressed by the Apex Court in Meerut Development Authority vs. M. K. Gupta, stating as follows:
In our view the complaint filed by the respondent who had patiently waited for 27 years with the hope that he will get the plot was rightly not dismissed by the District Forum as barred by limitation because he had a recurring cause for filing a complaint in the matter of non-delivery of possession of the plot.
In Lata Construction and ors. vs. Dr. R. R. Shah and anr., 2000 (1) CPR 81, the Apex Court has held: since the rights under the agreement of 1987 had not been given up and the appellants were constantly under an obligation to provide a flat to the respondents and deliver possession thereof to them, the Commission rightly treated `cause of action to be continuing cause of action and came to the right conclusion that the claim was not beyond time.
10. Again, this State Commission in MA(CD)07/11 filed by Dr. Jatin Ishwarbhai Patel & anr. by unreported order dated 15/02/13 has held that:
8. Since no possession has been handed over to the Complainants of the apartments booked by them on 13/12/2006 although the Complainants claim that they have paid the entire amount due to the Opposite Parties, nor a sale deed executed, these would be cases of recurring cause of action. In other words, the causes of action would continue till such time the possession is handed over to the Complainants and sale deed is executed. In this context we may refer to Meerut Development Authority, 2012 (4) CPR 220, wherein the National Commission followed the view expressed by the Apex Court in Meerut Development Authority vs. M. K. Gupta, stating as follows:
In our view the complaint filed by the respondent who had patiently waited for 27 years with the hope that he will get the plot was rightly not dismissed by the District Forum as barred by limitation because he had a recurring cause for filing a complaint in the matter of non-delivery of possession of the plot. (emphasis supplied)
11. Now, coming to the application, the case of the applicant/complainant is that the complainant is a minor and is under legal disability, in terms of Section 6 of the Limitation Act, and the period of limitation would start running as against him two years after he attains majority i.e. 24/12/2020 and as such the complainant can file the present complaint against the OPs on or before the expiry of 24/12/2022, and, therefore the complaint is well within time.
It is also submitted on behalf of the complainant, by Shri. Walawaikar that in the light of explanation below Section 5 read with article 60 of the Indian Limitation Act, 1963 and so also the law declared by the Apex Court in Smt. Hukmi & ors. vs. Smt. Gian Kaur, 1971 (3) SCC 782, the father of the complainant bonafidely believed that the complaint is well within the period of limitation and thus forming this belief the father of the complainant did not file the present complaint at earlier point of time. It is also submitted that the period available to a minor cannot be cut short by his guardian.
12. Shri. Mulgaonkar, lr. advocate of OP No. 1, would submit that if the complainant could file the complaint before 24/12/2022, the complaint which is filed is premature.
13. OP No. 2has not taken, on her own, any plea of limitation. It is also not the case of OP No. 2, as submitted by Lr. Adv. Shri. Samant, that the complainant had actual knowledge, not constructive, of the registered agreement dated 22/07/06 or registered sale deed dated 16/06/10. (copies of these documents are not placed on record).
14. Shri S. Samant has placed reliance on Suraj Lamp and Instruments Pvt. Ltd., 2009 ALL SCR 2702 and Janardhanam Prasad vs. Ramdas, 2007 ALL SCR 1413. We have perused the said decisions. The first deals with the object to Section 17 and 49 of the Registration Act, 1908. The second decision is rendered with reference to Article 54 of the Limitation Act. On facts, the said decision is inapplicable to the facts of this case for the Apex Court concluded therein that the respondents were well aware of the appellants possession of the land where he had dug a well and made improvements.
That is not the case herein, and, therefore the ratio of the said decision is inapplicable to the facts of this case.
15. The objection as regards limitation, taken by OP No.1, having been answered, in favour of the Complainant, we feel it is not necessary to consider the case set out by the Complainant in his application for condonation of delay.
Application for condonation of delay is therefore disposed off as infructuous. The complaint is now required to be heard on merits.
Order accordingly.
[Smt. Vidhya R. Gurav] [Justice Shri. N. A. Britto] Member President