State Consumer Disputes Redressal Commission
Rickers Estate Pvt Ltd Through Mr Sanjay ... vs Ms Macrotech Developer Limited ... on 7 January, 2026
!
V.-
IN THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
AT NEW DELHI
NC/CC/4/2024
With
NC/IA/17986/2024
(Directions)
Rickers Estate Pvt. Ltd.
Through Mr. Sanjay Chauhan
Registered office at Ground Floor-42,
Pacific mall, Tagore Garden,
Najafgarh Road, New Delhi-110025. Complainant(s)
Versus
M/s. Macrotech Developer Limited
(Amalgamation of M/s. Lodha Developers
and Shreeniwa Cotton 2 Mills Limited)
413, Floor-4, 17G, Vardhaman Chamber,
Cawasji Patel Road, Horniman Circle,
Fort, Mumbai, MG 400001 Opp. Party (ies)
BEFORE: x
HON'BLE MR. JUSTICE A.P. SAHI, PRESIDENT
HON'BLE MR. BHARATKUMAR PANDYA, MEMBER
For the Complainant (s) : Mr. S. Surender and Ms. Akansha Singh, Advocates
For the Opp. Party (ies) : Mr. Aditya Narain, Sr. Advocate
Mr. Vinayak Bhandari, Advocate
Mr. Arnav Narain, Advocate
Ms. Jaisal Singh, Advocate
Mr. Mishra Raj Shekhar, Advocate
Dated : 07.01.2026
ORDER
1. The present complaint has been instituted urging that the complainant had acquired a residential unit from the opposite party, the cost of the unit being Rs.13,16,15,460/-. As against the aforesaid price a sum of Rs.3,00,00,000/- is stated .to have been transferred to M/s. Shreeniwas Cotton Mills. The opposite party has stepped into its shoes after merger with the opposite party. The allegations in the complaint are that according to the agreed schedule, NC/CC/4/2024 Paae 11 despite regular requests, the opposite party did not enter into any agreement to sell and a letter was written on 02.05.2017, requesting the opposite party to intimate about the exact date of constructions and also execute the agreement to sell. However, this indifferent attitude continued and therefore the complainant made a request on 05.08.2020 to cancel the booking. A complaint was earlier filed before the Rera Authority seeking refund of the entire amount, where a totally incorrect reply was filed by the opposite party.
The Rera Authority refused to entertain the claim and passed orders on 28.06.2023, a copy whereof has been filed as annexure 7.
2. It is in this background that the present complaint has been filed for the following reliefs:
"a. To allow the present consumer complaint filed under section 58 (1)
(a) of the Consumer Protection Act, 2019: And b. Direct the respondent to accept the balance consideration amount of the fiat and handover the possession of the unit bearing no. West Wing W3701 in World Crest in the World Towers situated at Upper Worii, OR c. Direct the Opposite party to pay an amount of Rs. 3,00,00,000/-
(Rupees Three Crore Only) to the complainant alongwith 18% rate of interest from the date ofpayment till realization: AND d. Direct the Opposite party to pay future interest @ 18% on the amount of3,00,00,000/- (Rupees Three Crore Only) from the date of payment tit! the date of realization: AND NC/CC/4/2024 . Page I 2 i?
e. Direct the Opposite party to pay an amount of Rs. 20,00,000/- (Rupees Ten Lakh Only) as compensation for mental harassment caused by the Opposite party to the complainant: AND f. Direct the Opposite party to pay an amount of Rs. 5,00,000/- (Rupees Five Lakh only) as litigation expenses to the complainant: AND g. Pass any other order that this Hon'ble Commission may deem fit in favor of the complainant and against the Opposite party."
3. Since the booking was of the year 2014 an order was passed by the Commission on 23.01.2024, calling upon the complainant to file a better affidavit regarding the issue of limitation as the present complaint has been filed after almost 10 years of the booking. The order dated 23.01.2024 is extracted herein under:
"Heard learned Counsel for the Complainant.
There are two issues which need to be clarified at the outset firstly as to the purpose of the purchase of the fiat by the Complainant who admittedly is a Private Limited Company. The purchase was initiated through a booking in the year 2014 itself when companies were not included within the definition of a consumer under the Consumer Protection Act, 1986.
Learned Counsel for the Complainant has cited the order of this Commission in the Case of Springdale Core Consultants Pvt. Ltd. vs. Pioneer Urban Land and Infrastructure Ltd. decided on 14.07.2020 to urge that under the Consumer Protection Act, 2019 a company can be a complainant as it is a consumer so long as it seeks to NC/CC/4/2024 Page I 3 S' purchase or book a flat for the residential use of its directors/empioyees.
Nonetheless, the Complainant alleges deficiency of service in not offering of the flat and as a matter of fact in the year 2020 it had approached the RERA Authority for refund of the amount.
There has to be an explanation with regard to the period of limitation also as the booking was done in the year 2014 and the deveioper/buiider did not proceed to comply with the provisions of the allotment and execute an agreement as required therein within the time prescribed, then in that event the Complainant has to explain as to why did he wait till2024 to present this Complaint.
weeks. Let a better affidavit be filed explaining both these aspects within 6 List on 01.05.2024."
4. Further time was prayed for on 10.09.2024 to file the affidavit and once again on 17.10.2024 and then finally on 13.12.2024. In pursuance thereof IA/17986/2024 was filed by the complainant and the explanation given is that there was a continuing cause of action as the payments were made in the year 2015, yet no status of the property was intimated till 2020 and after request of refund in 2020, the complainant had approached the Rera authority, where it was declined on 28.06.2023, as a result whereof the complaint has been filed within limitation. The complainant has also relied on couple of decisions as cited in the said IA praying for treating the complaint to have been filed within time and proceed with the matter. After entertaining NC/CC/4/2024 Page I 4 A 'f the said application we passed orders on 24.01.2025 issuing notice and also calling upon the opposite parties to file a response to the issue of limitation as well. The order dated 24.01.2025 is extracted herein under:
"This complaint was entertained and queries were raised about the status of the complainant to file this complaint as the complainant is a company. The said issue was answered prima facie which stands recorded in the order dated 01.05.2024.
The second issue raised is with regard to limitation that was recorded in the earlier order dated 23.01.2024. In response thereto, IA/17986/2024 has been filed alongwith the explanation regarding the waiting period for filing this complaint.
From the facts on record, learned counsel points out that even though the complainant - Company is dealing in real estate yet the unit in question was booked as a residential fiat for the Director of the company vide order dated 22.03.2014, Annexure-2 to this appeal. It is therefore submitted that the property was not being purchased for any commercial purpose and had been booked for residential purposes only as mentioned in the said tetter.
It is then submitted that opposite party failed to intimate anything about the offer of possession or completion of the project or any other proceeding regarding the said unit as a result whereof ultimately the complainant sought refund of the amount of Rs.3,00,00,000/- deposited with the opposite party and a request for cancellation of the booking was also communicated on 05.08.2020. A copy of the said tetter is annexure-6 to the complaint.
It is urged that in spite of this communication neither the money was refunded nor any steps were taken by the opposite party to comply with the request of the complainant. Thus, there was a continuing cause of action and in order to secure the interest of the NC/CC/4/2024 Page 15 V' complainant - Company an application was moved on 10.08.2021 before MahaRERA. The said appiication/compiaint filed under Section 31 of the RERA Act was held to be not maintainable and orders were passed on 28.06.2023. The prayer therefore is that this period as well of pursuit before RERA should also be taken into account for the purpose of construing the period of limitation available to the complainant for filing this complaint.
Having considered the submissions raised, the issue as to whether the complainant has a continuing cause of action and whether he should be extended the benefit of his pursuit before MahaRERA will have to be considered in the light of the ratio and decision in the case of Samruddhi Co-operative Housing Society Ltd. Vs. Mumbai Mahaiaxmi Construction Pvt. Ltd., AIR 2022 SC428 where the issue of continuing cause of action as also the Doctrine of Election have been dealt with. Let notice issue to the opposite party calling upon them to answer this complaint including their contest, if any, on the issue of limitation.
The matter shall be posted for admission only after the response of the opposite party as directed hereinabove. List on 28.07.2025."
5. Upon service of notice it was informed that a reply was filed online as per the order sheet dated 28.06.2025 and the physical copy was also brought on record later on. An opportunity was prayed for by the learned counsel for the complainant to file rejoinder that was granted on 19.11.2025. A further adjournment was sought on 17.12.2025, whereafter a rejoinder has been filed.
6. With the exchange of pleadings we have examined the issue of limitation and the plea of a continuing cause of action to which the opposite party has come up with specific objections contending that the complainant has concealed NC/CC/4/2024 Page I 6 v material facts with regard to the cancellation of the unit as also the manner of its allotment and subsequent events, and without disclosing full and complete particulars, a misrepresentation has been made on the issue of limitation as also on the nature of the claim. Other allegations have also been made which are in detail and therefore the second argument of the learned counsel for the opposite party, Mr. Aditya Narain, learned senior counsel is that the complaint is heavily barred by time and therefore the same deserves to be dismissed for the said reason as well.
7. We have examined the documents on record including the pleadings in the complaint. We find that the complainant seems to have conveniently skipped over certain facts with regard to the process of allotment and its cancellation of the unit and other events relating thereto. In paragraph 10 of the complaint, the complainant has written about the query raised on 02.05.2017.
This has been responded to by the opposite party in detail. Paragraph 10 of the reply denies these facts as also the said letter. To the contrary the opposite party has come up with three letters, the first notice before termination of the allotment dated 03.08.2017, the second notice before termination/ cancellation dated 23.08.2017, and the final cancellation notice dated 12.09.2017 as also the intimation about the forfeiture of the amount under the terms of the allotment. In order to substantiate these documents the opposite party has also brought on record the complaint made against it by the complainant before the Assistant Registrar of Companies, Ministry of Corporate Affairs, Mumbai vide letter dated 07.07.2022 received in the office of 12.07.2022 that has been filed as annexure-L to the said reply. There is no NC/CC/4/2024 Page I 7 denial about the said letter and on a repeated query from the learned counsel he could not dispute the contents of the complaint dated 07/12.07.2022, which categorically mentions in the reply to query no. 5 that the letter of termination dated 23.08.2017 had been received by the complainant.
8. Some of the most important facts which have been completely omitted to have been mentioned in the complaint have been brought forth on record by the opposite party through their reply filed on 29.07.2025 vide diary no.
20326 where in paragraph 9, the following facts have been stated:
"9. Before adverting to the grounds basis which the present complaint is liable to be dismissed, it is pertinent to briefly state certain facts which would be relevant for the effective adjudication of the present purported complaint:
a) The Opposite Parties launched a project titled "The World Towers"
("Project"), comprising of 3 buildings, known as "World One", World Crest and World View. The present purported Complaint pertains to a unit in World Crest.
b) Vide Application Form dated 01.06.2014, one Mr. Harshvardhan Singh, s/o. Mr. Anii Kumar Singh, had booked unit No. 3701, West Wing, on the 37th Floor in World Crest ("1" Unit") by making a payment of Rs. 18,00,000/- (Rupees Eighteen Lakh Only) as Application Money-I. The Application form was duly signed by Mr. Harshvardhan Singh, thereby undertaking, to make the balance payments as per the payment scheme contained in the Application Form. Copy of the Application Form dated 01.06.2014 signed by Mr. Harshvardhan Singh is attached herewith and annexed as ANNEXURE-
A. NC/CC/4/2024 Page I 8
c) Subsequently, Mr. Harshvardhan Singh and Mr. Anii Kumar Singh introduced the Opposite Party to the Complainant company, representing that the Complainant company is their related company and thereby, made a request that the booking of the 1 Unit be transferred in the name of the Complainant company. Accordingly, a fresh Application Form of the same date as the initial booking with Mr. Harshvardhan Singh, i.e., dated 01.06.2014, was signed and executed with the Complainant company, and the booking was transferred in their name. Copy of the Application Form dated 01 06.2014 signed by the Complainant company has been filed along with the purported complaint and marked as Annexure 3 (@pg. 31-39 of the complaint).
d) Once the booking was transferred in the name of the Complainant company, Mr. Harshvardhan Singh, Mr. Anii Singh and the Complainant company further requested that the initial booking amount of Rs. 18,00,000/- (Rupees Eighteen Lakh Only) paid as Application Money-1 by Mr. Harshvardhan Singh be refunded to him and that such application money along with further instalments for the 1 Unit shall be paid by the Complainant company. Solely on account of such representations, and in good faith, the amount of Rs. 18,00,000/-
I (Rupees Eighteen Lakh Only) was duly refunded to Mr. Harshvardhan Singh, without any forfeiture, on 25.08.2014 vide cheque no. 015484, which subsequently cleared on 04.09.2014.
e) Following the refund to Mr. Harshvardhan Singh, the Complainant company started making payment only in January 2015. On 13.01.2015, the Complainant company made the first payment of Rs. 1,98,00,000/- (One Crore Ninety-Eight Lakhs only) vide Cheque No. 001318. Subsequent payments were made by the Complainant Company on 14.02.2015 for Rs. 24,75,000/-on 19.02.2015 for Rs.
49,50,000/-, on 14.09.2015 for Rs. 24,75,000/-. Therefore, the
NC/CC/4/2024 Page I 9
(X
Complainant has paid an amount of Rs. 2.97 Crores out of a total consideration value of Rs. 13,16,15,460/-
f) Admittedly, payments to the tune of Rs. 2.97 Cr. were made to the Opposite Party, after deducting TDS amounting to Rs. 3,00,000/- (Rupees Three Lakh Only). The ledger reflecting the payments made by the Complainant company is attached herewith and annexed as ANNEXURE-B.
g) It is submitted that while the Complainant company was requested to make payments towards stamp duty and registration charges to enable execution and registration of an agreement to sell, it was on account of the failure of the Complainant company to make such payments that an Agreement to Sell could not be executed. Several reminders were also sent by the Opposite Party to the Complainant company in order to make the necessary payments.
h) After making the aforementioned payments in 2015, the Complainant company failed to make further payments as per the payment schedule and in view thereof, demand letters and letters for interest component due, were sent to the Complainant company. However, despite repeated reminders and requests, the Complainant company failed to make the outstanding payments towards the 1st Unit.
i) It is pertinent to note that in terms of Clause 4 of the Application for Allotment dated 01.06.2014 (as also relied by the Complainant Company in the purported complaint), in the event the Complainant company did not receive an allotment tetter within the aforementioned period, it shall be deemed that the unit has been allotted to the Complainant company on the terms and conditions as stated in the Application form. The Complainant company shall be bound by the NC/CC/4/2024 Page 110 terms of the Application form (including the obligation to make payment as per the schedule stated therein). Therefore, the Application for Allotment is to be treated as the agreement governing the contractual relationship between the Complainant Company and the Opposite Party herein.
j) The Complainant Company has not made any other payment to the Opposite Party despite several reminders and notices. The Complainant company is therefore, a defaulter in terms of Clause 8 of the Application for Allotment.
k) The Opposite Party obtained an Occupancy Certificate for the 1 Unit on 30.05.2016, and handover of units started in July 2016. However, the question of handover of the 1 Unit to the Complainant company did not arise as the Complainant company failed to make remaining payments to the tune of Rs. 11 Cr. approximately, as per the payment schedule. A copy of the Occupancy Certificate dated 30.05.2016 is annexed herewith and marked as ANNEXURE-C.
i) The Opposite Party addressed several communications like letter dated 13.06.2017, 05.07.2017, inter alia to the Complainant company seeking payment of outstanding amounts (including amount towards stamp duty, interest payment, etc.) payable towards the 1 Unit. However, the Complainant company not only failed to respond to the same or make relevant payments but also failed to disclose the said fact and the letter before this Hon b/e Commission.
m) However, since the Opposite Party herein failed to make the relevant payments, the Opposite Party sent a First Notice before Termination to the Complainant company on 03.08.2017. It was informed to the Complainant Company that an amount of Rs. ll,64,86,478/-pius applicable interest remained pending. It was informed that in case the payments due were not made in terms of the NC/CC/4/2024 Page 111 ?! Application for Allotment, the Opposite Party would be entitled to forfeit the earnest money amounting to Rs. 1,38,36,546/ plus applicable taxes. A copy of the First Notice before Termination dated 03.08.2017 from the Opposite Party to the Complainant company, which was suppressed by the Complainant company is annexed herewith and marked as ANNEXURE-D.
n) That the Complainant company neither responded to the First Notice before Termination dated 03.08.2017 nor did the company make any further payments in terms of the Application for Allotment dated 01.06.2014.
o) Therefore, constrained by the consistent defaults, non-payment and unresponsiveness of the Complainant company, the Opposite Party herein issued Notice-II before Termination dated 23.08.2017, which fact and tetter has also been concealed by the Complainant company. A copy of the Notice-II before Termination dated 23.08.2017 issued by the Opposite Party to the Complainant company is annexed herewith and marked as ANNEXURE-E.
p) That on 12.09.2017, the Opposite Party herein sent a Cancellation Letter/Notice to the Complainant company on account to non-payment of Rs. 11,64,86,478/- and informed the Complainant company that it ceased to have any right, title or interest in respect of and/or in relation to the captioned unit. A copy of the Cancellation Notice dated 12.09.2017 which was deliberately and willingly concealed by the Complainant company is annexed herewith and marked as ANNEXURE- F.
q) Vide the said Cancellation Letter Notice, the Complainant company was apprised that an amount of Rs. l,38,36,546/-(Rupees One Crore Thirty-Eight Lakh Thirty-Six Thousand Five Hundred and Forty-Six Only) plus applicable taxes shall stand forfeited and balance amount, if NC/CC/4/2024 Page 112 any, will be refunded. Accordingly, the cancellation and forfeiture were implemented, as per the terms of the Application for Allotment dated 01.06.2014. Copy of email addressing the cancellation letter to the Complainant company is attached herewith and annexed as ANNEXURE- G.
r) It is of note to point out herein that the Complainant company has approached this Hon'bie National Commission with unclean hands and the same is corroborated by the deliberate and wilfull concealment by the Complainant company, of the Cancellation Letter dated 12.09.2017 leading to the cancellation of the 1 Unit by the Opposite Party in 2017. Despite knowing very well that the booking of the 1 unit stood cancelled in 2017, the Complainant company refrained from disclosing the said fact and filed the present complaint illegally, after 7 years from cancellation.
s) Further, despite receipt of such cancellation letter / notice, the Opposite Party did not receive any response or objection from the Complainant company. Therefore, the Complainant company herein had 2 years from the date of such cancellation in 2017, to file a consumer complaint under the Consumer Protection Act. 1986/2019 i.e., by September, 2019.
t) However, the Complainant failed to do so and therefore, the present purported Complaint having been filed in 2024, after a delay of 7years, from the date of cancellation, is grossly barred by time. The purported Complaint ought to be dismissed on this ground alone.
u) Subsequent to the cancellation of the 1 Unit by the Opposite Party, Mr. Harshvardhan Singh and Mr. Anii Kumar Singh along with the Complainant company approached the Opposite Party seeking redressa! of the fact that the amount of Rs. 1,38,36,546/-(Rupees One NC/CC/4/2024 Page 113 Crore Thirty-Eight Lakh Thirty-Six Thousand Five Hundred and Forty- Six Only) had been forfeited.
v) Mr. Harshvardhan Singh along with Mr. Anil Kumar Singh in the presence of the Complainant company then expressed to the Complainant company that they would like to purchase a tower value unit and thus, requested that the balance amount lying with the Opposite Party, after forfeiture, pertaining to the 1st Unit, be adjusted against the second unit. To facilitate this, Mr. Harshvardhan Singh and Mr. Anil Kumar Singh once again represented that they and the Complainant company are related parties.
w) Solely in good faith and relying on the representations made by Mr. Harshvardhan Singh, Mr. Anil Kumar Singh and the Complainant company, the Opposite Party agreed to credit the balance refund amount towards the 1 Unit of Rs. 98,64,353/-(Rupees Ninety-Eight Lakh Sixty-Four Thousand Three Hundred and Fifty-Three Only) towards Unit No. B-7202 in Lodha Marquise, Lodha Park ("2nd Unit") which was booked in the name of Mr. Harshvardhan Singh on 03.12.2019. Copy of the application form for the 2nd Unit is attached herewith and annexed as ANNEXURE -H.
x) Further, Mr. Harshvardhan Singh along with Mr. Anii Kumar Singh and the Complainant company also requested the Opposite Party to reconsider the forfeited amount in view of the difficult economic circumstances in 2019 and out of respect for Mr. Anil Kumar Singh, and as a one-off exception, the Opposite Party also agreed to give some credit towards the 2nd Unit from the amount of Rs. 1,38,36,546/- (Rupees One Crore Thirty-Eight Lakh Thirty- Six Thousand Five Hundred and Forty-Six Only), i.e., the forfeited amount towards the 1 Unit.
NC/CC/4/2024 Page 114 y) Thus, a total credit of Rs. 2.80 Cr., comprising of Rs. 98,64,353/- (Rupees Ninety-Eight Lakh Sixty-Four Thousand Three Hundred and Fifty-Three Only) as balance (post forfeiture) of the amounts received by the Opposite Party towards the 1st Unit and Rs. 1,21,36,546/- as exceptional credit, from the forfeited amount in relation to the 1st Unit, was given by the Opposite Party towards the 2nd Unit, booked by Mr. Harshvardhan Singh.
z) Subsequently, an Agreement to Sell dated 21.01.2020 was executed by Mr. Harshvardhan Singh with Mr. Anii Kumar Singh as one of the witnesses, for the 2nd Unit and remaining amounts towards consideration value of the 2nd Unit were made by Mr. Harshvardhan Singh. Copy of the Agreement to Sell dated 21.01.2020 is attached herewith and annexed as ANNEXURE -1.
aa)It is pertinent to point out herein that on account of the credit given by the Opposite Party, white the Agreement to Sell dated 21.01.2020 categorically states the consideration value for the 2nd Unit to be Rs. 7,91,00,000/- (Rupees Seven Crore Ninety-One Lakh Only), Mr. Harshvardhan Singh has only paid an amount of Rs. 5.11 Cr. approximately, towards the 24 Unit. Copy of the ledger of Mr. Harshvardhan Singh and proof of adjustment is attached herewith and annexed as ANNEXURE-J. bb) The possession of the 2nd Unit was offered vide Possession Demand Letter dated 24.12.2020 and Mr. Harshvardhan Singh also took possession of the 2nd Unit on 11.05.2021.
cc) While the cancellation of the booking of the 1 Unit took place on 12.09.2017, no concerns were raised by the Complainant company till the possession of the 2nd Unit was handed over to Mr. Harshvardhan Singh on 11.05.2021.
NC/CC/4/2024 Page 115 dd) The aforementioned factual background inter alia has been consciously suppressed by the Complainant company and the present proceeding amounts to an abuse of the process of law. It is further submitted that for the proper adjudication of the present complaint, the impieadment of Mr. Harshvardhan Singh and Mr. Ami Kumar Singh would be imperative.
ee) Subsequent to taking of possession of the 2nd Unit by Mr. Harshvardhan Singh on 11.05.2021, on 10.08.2021, the Complainant company filed a complaint before the Maharashtra Real Estate Regulatory Authority ("MahaRERA") bearing Complaint No. CC0060000000197951 of 2021, which was dismissed on 28.06.2023. Consequent to the said dismissal in June 2023, the present purported consumer complaint has been belatedly filed by the Complainant company in January 2024 i.e., after 7 years since the date of cancellation of the allotment. A copy of the RERA Order dated 28.06.2023 is annexed herewith and marked as ANNEXURE-K. fi) It is pertinent to note that contrary to contentions made in the present complaint before the NCDRC, the Complainant company has explicitly admitted in its Complaint before the MahaRERA that it was on account of its own inability to make payment towards the 1 Unit, that they had addressed the alleged letter dated 05.08.2020, purporting to cancel the booking of the 1 Unit. Both in the present complaint, as well as the MahaRERA complaint, the Complainant company has suppressed the fact that the booking of the 1 Unit was cancelled by the Opposite Party on 12.09.2017 itself, 3 years prior to the alleged letter dated 05.08.2020.
gg) It is also pertinent to note that before the MahaRERA, the Complainant company had only sought the refund of purported NC/CC/4/2024 Page 116 amounts paid towards the 1 Unit. However, for the first time, in the present complaint, after 7 years of cancellation of the 1st Unit on 12.09.2017, the Complainant Company has sought possession of the 1 Unit. It is submitted that there is no question of the Complainant company being given possession of the 1st Unit after 7 years of cancellation of their booking. In fact, the said 1 Unit has already been sold to a third party and such prayer sought by the Complainant company is infructuous.
hh) It is therefore explicit that it was never the intention of the Complainant company to actually acquire the 1 unit but to merely engage in such actions to illegally enrich itself in collusion with Mr. Harshvardhan Singh and Mr. Anil Kumar Singh, at the cost of the Opposite Party. The Complainant company seems to have never had any financial difficulty in making payments of the installments and had booked the unit clearly for speculative and commercial reasons and for a subsequent resale.
ii) In light of the aforesaid, it is imperative for the effective adjudication of this present complaint and passing of any effective orders, that Mr. Harshvardhan Singh and Mr. Anii Kumar Singh are added as parties to the present complaint."
9. The chronological reading of these facts would leave no room for doubt that the aforesaid facts were relevant and clearly demonstrates that the cause of action on the basis whereof refund is being claimed had already occurred way back in 2017 and in view of what is being observed by us hereinafter the period of limitation for the said cause also stood extinguished.
10. What emerges from these facts is that the process of cancellation of the allotted unit was very much in the knowledge of the complainant and these entire facts have been deliberately concealed in the complaint, while raising NC/CC/4/2024 Page 117 « A the plea of limitation as also the cause of action as contained in paragraphs E and F of the complaint. The said paragraphs of the complaint are extracted herein under for appreciation:
"E. Limitation
1. That the entire payment of Rs. 3,00,00,000/- (Rupees Three Crores only) was made by the complainant to the Opposite party in the year 2015, and the complainant keep on requesting the opposite party to enter into an agreement to sell and tell the status ofproperty which is substantiated by letter dated 02.05.2017 that looking at the unfettered attitude of the opposite party the complainant was constrained to issue letter dated 05.08.2020 wherein he requested to cancel the booking of the fiat and return the entire amount so the limitation to file the present consumer complaint starts on 05.08.2020.
2. That complainant, with all his bonaftde intentions, approached the MahaRERA for a refund of money on 10.08.2021 and the matter was pending before MahaRERA from 10.08.2021 till 2023 however, MahaRERA observed the fact that "the phase in which the complainant's fiat is located is already completed and the occupancy certificate is received on 29/07/2017, within the window period of 3 months after commencement of RERA on 1-05-2017. Hence, the said phase was not required to be registered with the MahaRERA under the provisions of section 3 of the RERA as it was before the advent of RERA. Hence, the project did not need to be register by the respondent with MahaRERA. Hence, the MahaRERA is of the view that the complainant is not an allottee of this project registered with the MahaRERA and hence, this complaint filed under section 31 of the RERA is not maintainable in this project. Hence, the MahaRERA cannot decide this complaint on merits". This order was passed by MahaRERA on 28th June, 2023.
NC/CC/4/2024 Page 118
3. That the Limitation act in its section 14 clearly stipulates that:-
14 Exclusion of time of proceeding bona fide in court without jurisdiction.
(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
That the Hon'ble supreme court in CIVIL APPELLATE JURISDICTION CIVIL APPEAL N0.4367 OF2004 M.P. STEEL CORPORATION VERSUS COMMISSIONER OF CENTRAL EXCISE has held that:-
"We conclude, therefore, that the principle of Section 14 which is a principle based on advancing the cause ofjustice would certainly apply to exclude time taken in prosecuting proceedings which are bona fide and with due diligence pursued, which ultimately end without a decision on the merits of the case."
That the Section 14 of limitation act and the judgment of the Hon'ble Supreme Court corroborate the averment of the complainant that the period in which he has prosecuted his case with MahaRERA that time period should be excluded so the present consumer complaint is filed within the limitation period.
F. CAUSE OF ACTION.
NC/CC/4/2024 Page 119 The cause of action first arose when the application form was issued in favor of the complainant in the year 2014 and it further arose on when the complainant made the payment of Rs. 3,00,00,000/- (Rupees Three Crore Only), it then arose on every day when the complainant requested the officials of the Opposite party to enter into an agreement to sell which is sti/i pending, the cause of action again arose on 02.05.2017 when the complainant sent a letter to the opposite party requesting them to tell the exact status of the subject property, it also arose on 05.08.2020 when the complainant requested for the cancellation of booking of the said flat, the cause of action is still subsisting as the opposite party has not updated the status ofproperty and not paid the amount of Rs. 3,00,00,000/- (Rupees Three Crore only), to the complainant."
11. A perusal of these declarations made in the complaint nowhere refer to these communications sent by the opposite party to the complainant regarding cancellation.
12. In our considered opinion these were material facts for the adjudication of the controversy in order to compute the period of limitation and ascertaining the date of cause of action, as to what is material fact has been explained by the Apex Court in the case of S.J.S. Business Enterprises (P) Ltd, v. State of Bihar, (2004) 7SCC166, paragraph 13 whereof is extracted herein under:
"13. As a genera! rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the court, whatever view the court may have taken [R. v. Genera! Commrs. for the purposes of NC/CC/4/2024 Page 120 the Income Tax Act for the District of Kensington, (1917) 1 KB 486:86 UKB 257: 116 LT 136 (CA)J . Thus when the liability to income tax was questioned by an applicant on the ground of her non-residence, the fact that she had purchased and was maintaining a house in the country was held to be a material fact, the suppression of which disentitled her to the relief claimed [Ibid.] . Again when in earlier proceedings before this Court, the appellant had undertaken that it would not carry on the manufacture of liquor at its distillery and the proceedings before this Court were concluded on that basis, a subsequent writ petition for renewal of the licence to manufacture liquor at the same distillery before the High Court was held to have been initiated for oblique and ulterior purposes and the interim order passed by the High Court in such subsequent application was set aside by this Court [State of Haryana v. Kama! Distillery Co. Ltd., (1977) 2 SCC 431: AIR 1977 SC 781]. Similarly, a challenge to an order fixing the price was rejected because the petitioners had suppressed the fact that an agreement had been entered into between the petitioners and the Government relating to the fixation ofprice and that the impugned order had been replaced by another order [Welcom Hotel v. State of A.P., (1983) 4 SCC575:1983 SCC (Cri) 872: AIR 1983 SC 1015]."
13. The conduct of the complainant therefore is clearly covered by the legal maxims of suppresio veri and suggestio falsi. There is a total absence of these details which now stands established after the reply filed by the opposite party
14. These material facts were relevant for the purpose of computing the limitation, in as much as, the complainant in a very sketchy manner has again in IA/17986/2024 attempted to misrepresent these facts and withhold this material as discussed above which was in the knowledge of the complainant and is now established on record. The explanation now sought to be raised NC/CC/4/2024 Page 121 through the rejoinder is therefore unacceptable and is therefore rejected. The suppression of a material fact being established, the complainant in the words of the Apex Court decision quoted above "disqualifies itself from obtaining the any relief".
15. With the aforesaid facts the question is as to whether there is a continuing wrong as alleged by the complainant. We have already referred to the judgment of the Apex Court in the case of Samruddhi Coop. Housing Society Ltd. (Supra). As to what is a continuing wrong has been elaborately dealt with therein explaining as to when a legal injury gives rise to a cause of action and as to how a cause of action can be treated to be a continuing cause of action. Reference be had to paragraph 11 to 18, which are extracted herein under:
"C. Analysis
11. The crux of the appeal revolves around the maintainability of the complaint and whether it is barred by limitation. Ncprc held [Samruddhi Coop. Housing Society Ltd. v. Mumbai Mahaiaxmi Construction (P) Ltd., 2018 SCC Online NCDRC1711] 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, 1986provides 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 NC/CC/4/2024 Page 122 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. 'J 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 Baiakrishna Savairam Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan [Baiakrishna Savairam 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 : (Baiakrishna case [Baiakrishna Savairam 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 NC/CC/4/2024 Page I 23 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. ES. Venkataramiah, J. (as the learned ChiefJustice 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 Hable for penalty. A wrong or default which is complete but whose effect may continue to be feit 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 NC/CC/4/2024 Page I 24 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 ofpenalty 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 UCh 469: 70LT52 (CA)]observed: (Chpp. 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) Id. 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 NC/CC/4/2024 Page I 25 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 maybe, de die in diem."
17. In M. Siddiq (Ram Janmabhumi Tempie-5 J.) v. Suresh Das [M. Siddiq (Ram Janmabhumi Tempie-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 piea 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 NC/CC/4/2024 _ Page 126 another. A continuing wrong postulates a breach of a continuing duty or a breach of an obligation which is ofa 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 oflimitation."
i (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 genera! 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 fat 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."
16. In the present case it stands established that the legal injury complained of had attained finality with the cancellation of the unit way back in 2017 with the issuance of the letters that have been referred to hereinabove. Thus, there was no continuing wrong existing as the cancellation was coupled with a forfeiture vis-a-vis the unit in question.
NC/CC/4/2024 Page I 27
17. In the instant case we are concerned only with the allegations made in the complaint, but even considering the other pleadings regarding the adjustment of the amount in a subsequent transaction by the complainant for a different unit in 2019 and the involvement of one Mr. Harshvardhan Singh and Mr. Anil Kumar Singh about which pleadings have been made in the objections, the same would in no way extend any benefit to extend the cause of action in the present case. The transaction whereof had come to an end with cancellation in the year 2017.
18. Applying the principle as extracted herein above in the case of Samruddhi Coop. Housing Society Ltd. (Supra) on the facts of the present case, we do not find any existing or continuing cause of action for the complainant so as to extend any benefit of the plea of limitation on the ground of any continuing cause of action to the complainant seeking refund of payments of the 1st unit booked in 2014.
19. Needless, to point out that limitation under the Consumer Protection Act for filing of the complaint at present at present is governed by the provisions of Section 69 of the 2019 Act. We may point out that Section 69 of the 2019 Act is almost pari materia to the provisions of Section 24A of the repealed Consumer Protection Act, 1986. The issue with regard construing the rigours of limitation was dealt with by the Apex Court in the case of SBI v. B.S. , Agriculture Industries (I), (2009) 5 SCC 121, wherein the Apex Court in paragraph 11 to 15 has held as under:
"11. Section 24-A of the Act, 1986 prescribes limitation period for admission of a complaint by the consumer fora thus:
NC/CC/4/2024 Page 128 "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 1 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, NC/CC/4/2024 Page I 29 i 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 white dealing with the same provision viz. Section 24-A of the Act, 1986 held: (SCCpp. 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 toss 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."
NC/CC/4/2024 Page I 30 ■i
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 piea has been raised by the parties; such a jurisdictional fact need not be even pleaded."
20. As held above the cause of action had already arisen way back in the year 2017 in the present case and there is no explanation worth the name for a cause of action continuing vis-a-vis the subject property in question and the transaction in the present complaint.
21. For all the reasons aforesaid we are satisfied that the objections taken by the opposite party are well substantiated and there is no continuing cause of action available to the complainant to maintain this complaint which is clearly barred on account of the provisions of Section 69 of the Act. Even otherwise suppression of material facts is also evident that disqualified the complainant from seeking any relief.
22. Mr. Aditya Narain, learned senior counsel also pointed out towards the facts relating to a subsequent transaction which he submits is an altogether a separate chapter and with which we agree and does not require any consideration for extending any benefit to the complainant. The complaint is clearly barred by limitation and is accordingly dismissed.
Sd/-
( A.P. SAHI, J.) PRESIDENT Sd/-
( BHARATKUMAR PANDYA)
Brahm/VM/Court-1/10 MEMBER
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