Per Mr. S. R. Khanzode, Hon’ble Presiding Judicial Member

          This appeal takes an exception against the order dated 25/02/2010 passed in consumer complaint No.55/2010,  Jyostna Pravinkumar Vadera V/s. Aakashganga Construction Pvt. Ltd. & ors., by District Consumer Forum, Nashik (‘Forum below’ in short), wherein the consumer complaint is dismissed.

          The complaint is in respect of purchase of flat and service deficiency on the part of opposite party by not delivering the possession of said flat. 

          Forum below after hearing both the parties passed the impugned order and feeling aggrieved thereby, present appeal is filed by the original complainant.

          We heard both the parties and perused the documents.

          Learned forum below observed that the cause of action arose when the complainant paid `11,000/-, as booking amount on 15.01.2003 and, therefore, the complaint filed on 11/02/2010 is barred by limitation.  Considering the nature of deficiency, supra, alleged, since the builder failed to deliver the possession, the cause of action is continuous.  The observation and finding of forum below is, thus, erroneous and such perverse finding resulted into miscarriage of justice. 

          It is submitted by the respondent that the plot in question is already handover to the subsequent purchaser.  But it will not come in a way to settle the dispute according to law.     

                   For the reasons stated above, we find this is a fit case to set aside the impugned order and remit back the matter.  Hence, we pass the following order :-

-: ORDER :-

1.       Appeal is allowed.  The impugned order dated 25/02/2010 is quashed and set aside.

2.       Matter is remitted back to the Forum below in light of observations made in the body of the order.

3.       Both the parties to appear before Forum below on 10/01/2011.  Forum below shall give an opportunity to both the parties of hearing interalia including following the procedure as per Section 13(4) of the Consumer Protection Act, 1986 and then settle the dispute according to law.

4.       Appeal stands disposed of accordingly.

5.       Record & Proceeding be sent back to the Forum below.

6.       Copies of the order be furnished to the parties.