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1. This appeal is preferred by the original Opposite Party (to be referred as appellant) against the order dated 4/9/2007 passed in consumer complaint bearing CC No.  222/2007, by the District Forum, Yavatmal    by which the complaint has been partly allowed.

2. The case of the complainant (to be referred as respondent), as set out in the complaint, in brief is that the appellant is a plots and construction company and it owned a land of survey No.11 of village Lohara. The appellant demarcated several plots in the said land and offered the same to prospective purchasers. Therefore, he entered into an agreement of sale with the appellant in writing on 23/07/1990 to purchase plot No.70 admeasuring 160 sq.mt. (1722.24 sq.ft.), for a total consideration of Rs.11022.33/- i.e. at the rate of Rs.6.40 per square feet. As per said agreement to sale, part of the consideration of Rs.7800/- was to be paid by 39 monthly installments of Rs.200/- each and balance consideration was to be paid at the time of registration of sale-deed. It was also agreed that a lucky draw will be taken in each month and one of the purchaser of the plot, who is the winner of the draw will not be liable to pay balance consideration subsequent to winning. The respondent accordingly paid 34 installments amounting to Rs.6800/- to the appellant and he won the lucky draw after payment of 34^th installment and hence he was exempted from payment of remaining five installments amounting to Rs.1000/-. The respondent was ready and willing to pay balance consideration of Rs.3222/- to the appellant at the time of execution of sale-deed. He requested the appellant to accept the balance amount and to execute the sale-deed, but the appellant avoided to execute the sale-deed on the ground that the land was not converted for non-agricultural use. The respondent, as stated in detail in the complaint, tried to persuade the appellant from the year 1993 till the month of February, 2006 for execution of the sale-deed, but it avoided the same on the ground that the order about N.A.(Non agricultural Use) was still not passed by the concerned authority. Lastly, the appellant avoided to meet him and, therefore, he filed the consumer complaint praying that direction be given to the appellant to execute sale-deed of the plot No.70 in his favour and to pay him compensation of Rs.10000/- towards mental harassment and cost of Rs.10000/-.

3. The appellant appeared before the Forum below and resisted the complaint by filing written version. It raised preliminary objection about non maintainability of complaint due to bar of limitation and due to bar of jurisdiction and also due to purchase of the plot by the respondent for commercial purpose. It admitted about execution of agreement dated 23/7/90 in respect of plot No.70 by it in favour of the respondent and about the payment of part of consideration by 29 monthly installments of 200/- each and payment of balance consideration at the time of execution of sale-deed. It came with a case that respondent did not pay the installments and balance consideration amount and committed breach of condition No.4 & 10 of the agreement and therefore, the agreement has been automatically cancelled long before. He also did not demand the balance amount after deduction of the penalty as per condition No.4 of the agreement. It has executed sale-deeds in favour of those purchasers of the plots who paid installments and balance consideration. It is also submitted that the respondent was well aware that all formalities of conversion of layout were completed. It is denied that the respondent was selected in lucky draw scheme and he was not required to pay remaining installments. Hence it is submitted by the respondent that the complaint may be dismissed with costs.

4. The District Forum below, after hearing advocates of both the parties and considering evidence brought on record came to the conclusion that as per agreement, it was the responsibility of the appellant to obtain permission for non agricultural use of the land, the cause of action is continued till the said permission is obtained by the appellant and also till the appellant has refused to execute the sale-deed. The Forum also observed that it has got jurisdiction to decide the complaint. The Forum also observed that there is no evidence to show that the respondent purchased the plot for commercial purpose. The Forum did not agree with the preliminary objection taken by the appellant and held that the appellant did not inform the respondent about its obtaining permission for non agricultural use of land. The Forum also accepted the case of the respondent that he paid Rs.6800/- in 34 installments of Rs.200/- each to the appellant and, therefore, as per separate agreement dated 16/1/93 about lucky draw, he is exempted from paying remaining five installments. The Forum also held that as the appellant did not execute sale-deed in favour of the respondent and did not inform him about its obtaining permission for non agricultural use of the land, it provided deficient service to the respondent. The Forum, therefore, directed the appellant to execute sale-deed of plot No.70 in favour of the respondent by accepting balance consideration of Rs.3222.33 from him and shall pay expenses of sale deed and shall recover the said expenses from the respondent. The Forum also directed that if the appellant is unable to execute sale-deed of plot No.70 as above, it shall execute sale-deed of any other plot of the same layout having the same area of the plot as above in favour of the respondent and also to pay him compensation of Rs.3000/- towards physical and mental harassment and cost of Rs.1000/-.

5. Feeling aggrieved by that order the original Opposite Party has preferred this appeal.

6. We have heard advocates of both parties and perused the written notes of arguments and the documents filed by them.

The sum and substance of the arguments of the learned advocate of the appellant is as follows..

1. The remedy available to the respondent is only under specific relief act and not under Consumer Protection Act.
2. The cause of action arose in the year 1993 but the complaint was filed in the year 2007 and, therefore, the complaint is barred by limitation. There is as such no continuous cause of action.
3. The lucky draw scheme has no nexus with the agreement of sale the plot No.70 and there is no evidence to show that out of 39 installments, the respondent paid 34 installments.
4. The permission for non agricultural use of the land was actually obtained by the appellant in the month of on 31/3/1998, and it was the duty of the respondent to see the public record about the same and he never demanded the document about the said permission from the appellant.
5. There was no exemption from payment of remaining installments by the respondent and he failed to pay remaining installments as per agreement of sale and, therefore, it stood terminated.
6. The Forum below has not considered these material aspects and therefore, it passed the erroneous order, which may be set-aside.

He relied upon observations made in the following cases on the point of limitation..

1. Steel
2. to 14

In one of the case of Pushpa Builders flat buyers association supra, the builder raised the plea of limitation as the possession of the flats have been handed over to the complainants in the year 1995-96 and the complaint is filed in the year 2000 and, therefore, it was held that the complaint is barred by limitation.

In another case of Baby Thankappan Colorlab and Anr. (supra) cause of action arose on 14/9/1991 and the complaint was filed on 22/8/1997 and, that there was no application for condone the delay and, therefore, the complaint was found to be barred by limitation.

In another case of Punjab Urban Development authority & Anr.(supra) the delay was condoned by the Forum on oral prayers made during arguments which was also on insufficient grounds, and, therefore, it is held that Forum is not justified in condoning the delay.

In all the remaining cases, the delay in filing the matter was not condoned for the reasons given in those reasons.

7. On the other hand, the learned advocate of the respondent supported the impugned order and his main argument is that

1. The appellant did not produce before the Forum below, the permission obtained for non agricultural use of the land and copy of that permission letter for the first time, filed in appeal. Therefore, can not be considered. As per knowledge of the respondent the permission for non agricultural use is obtained in the month of January,2006.
2. The appellant has avoided to execute sale-deeds similarly to so many buyers of the plots and he filed frivolous appeal with a view to delay execution of sale-deed.
3.  There is no merits in appeal and hence it may be dismissed.

The respondent’s advocate relied upon observations made in the following cases.

1. Commissioner, Nagar Palika Nigam Bhilai Vs.Rajeshkumar Shukla, III (2010) CPJ 112 (NC). In that case, it was found that there is continuous cause of action as the Opposite Party failed to refund initial deposit.
2. Bhagyalakshmi Constructions Vs.Monoranjan Basak & Anr., III (2013) CPJ 75 (NC). It is held by Hon’ble National Commission that cause of action is continued to exist because neither possession was delivered nor conveyance was executed in favour of complainant.

8. In the instant case, we initially considered the submissions made about the maintainability of the case. The agreement of sale shows that it was the responsibility of the appellant to obtain permission for non agricultural use of the land for execution of sale deed in favour of respondents. However, the appellant has not intimated in writing to the respondent till filing of the complaint about its obtaining said permission from the competent authority, moreover, in the written version filed before the Forum below also, it is not specifically pleded by the appellant that it duly obtained permission for non agricultural use of the land. It very vaguely stated by the appellant in written version that the respondent was well aware about completion of the formalities for non agricultural use of land. But for the first time, in appeal, the appellant filed the permission letter dated 31/3/1998 to show that the said permission was duly obtained from Additional Collector of Yavatmal. No explanation is given by the appellant as why said document was not produced before the Forum below. Moreover, in the written version of the appellant also there is no reference of the said document.  Therefore, we find that the said document dated 31/3/1998 can not be considered to prove that respondent was well aware of the permission for non agricultural use on 31/3/1998 and hence the complaint filed after a perod of more than two years from 31/3/1998 is barred by limitation.

9. We hold that as the respondent already paid substantial amount of consideration as stated in the complaint, and as he won the lucky draw as per the another agreement dated 16/1/1993, he was exempted from payment of five installments amounting to Rs.1000/- and as the balance consideration was to be paid at the time of sale deed, the cause of action was continuous since the appellant did not execute the sale deed of the plot in his favour. Hence the complaint is rightly held to be not barred by limitation.

10. Moreover, we also find from the well settled law that it is a consumer dispute in between both the parties and that the Forum has jurisdiction to decide the complaint.

11. We also find that the Forum committed no error in appreciating the evidence brought on record and coming to the conclusion that the appellant rendered deficient service to the respondent by not executing sale deed of the plot No.70 in his favour. We thus find that the decisions relied upon by the learned advocate of the appellant are not applicable to the present case since their facts and circumstances are totally different from those of the present case.

12. We thus hold that the appeal is devoid of merits and it deserves to be dismissed.

ORDER

 The appeal is dismissed.

No order as to costs in appeal.

Copies of the order be supplied to both the parties free of costs.