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"13. The Opposite Party contested the complaint as being barred by limitation prescribed under section 24(a) of the Consumer Protection Act, 1986 since the last date stipulated in the buyers' agreement for giving possession of the flat expired more than 2 years ago. It is a settled legal proposition that failure to give possession of flat is continuous wrong and constitutes a recurrent cause of action and as long as the possession is not delivered to the buyers, they have every cause, grievance and right to approach the consumer courts. It is only when the seller virtually refused to give possession that the period of limitation prescribed under section 24(A) of the Consumer Protection Act, 1986 would start. The Complainant has to file a case within two years from the date of refusal of delivery of possession to the buyer. In the present case, the Opposite Party has not refused possession of the flat to the complainants at any point of time. Therefore, the cause of action continues to subsist in favour of the Complainant."

21. Applying the aforesaid law, in the present case also, since the possession of the plot has not been delivered to the Complainant, the cause of action continues to subsist in favour of the Complainant and the present complaint is within the period of limitation.

COMPLAINANT- A CONSUMER OR NOT?

22. The Opposite Party has contended that the Complainant is not a Consumer as defined under the Consumer Protection Act, 1986 since the plot was purchased for investment, which constitutes commercial purpose.

27. On the point of the existing arbitration clause, we deem it appropriate to refer to Emaar MGF Land Limited vs. Aftab Singh reported at (2019) 12 SCC 751, wherein the Hon'ble Supreme Court held as under:

"5. This Court in the series of judgments as noticed above considered the provisions of Consumer Protection Act, 1986 as well as Arbitration Act, 1996 and laid down that complaint under Consumer Protection Act being a special remedy, despite there being an arbitration agreement the proceedings before Consumer Forum have to go on and no error committed by Consumer Forum on rejecting the application. There is reason for not interjecting proceedings under Consumer Protection Act on the strength an arbitration agreement by Act, 1996. The remedy under Consumer Protection Act is a remedy provided to a consumer when there is a defect in any goods or services. The complaint means any allegation in writing made by a complainant has also been explained in Section 2(c) of the Act. The remedy under the Consumer Protection Act is confined to complaint by consumer as defined under the Act for defect or deficiencies caused by a service provider, the cheap and a quick remedy has been provided to the consumer which is the object and purpose of the Act as noticed above."

28. Hence, the perusal of the aforesaid dicta of the Hon'ble Apex Court reflects that the existence of an Arbitration clause is no bar for the consumer fora to entertain a complaint under the Consumer Protection Act, 1986.

FORCE MAJEURE- A VALID DEFENCE?

29. The Opposite Party in order to explain its failure to handover the possession of the plot within the stipulated time period has further contended that the construction of the building was majorly delayed due to reasons beyond their control and has relied on the Force Majeure Clause of the Arrangement which has been reproduced below for ready reference:-