This Revision Petition questions the correctness of the order dated 19.08.2014 passed by the State Consumer Disputes Redressal Commission, Maharashtra, Nagpur Circuit Bench in First Appeal No.8/440 whereby while dismissing the appeal of the Petitioner, the order passed by the District commission dated 04.09.2007 in CC/7/222 has been upheld.

2. The Complainants/ Respondents filed a complaint on 31.05.2007 that was allowed on 04.05.2007 holding that the Petitioner who is a housing construction company had committed deficiency by not executing the sale deeds of the plots that was sold to the Respondents in Shubham Layout Scheme developed by it. The Complainant had entered into an agreement of sale on 23.07.1990 for purchase of the plot measuring 160 square meters for a total consideration of Rs.11,022.33/- situate in Shubham Layout in Village Lohara. The Complainant had to pay the entire amount in 39 instalments. The Complainant alleged that a lucky draw was initiated by the Opposite Party as a result whereof the Complainant having succeeded in the lucky draw stood exempted from paying the last five instalments. An agreement was entered into on 17.01.1993 for making of the balance of the payments and it was promised by the petitioners that they would be getting no objection from the competent authorities by 1995. The layout therefore was to be provided by the Petitioners along with the no objection of conversion of the land into a non-agricultural purpose.
3. According to the Complainant, the Petitioners did not obtain this no objection certificate and kept on promising the Complainant about the same without any information in this regard. The same story was repeated by him in the subsequent years. But the same was followed by empty promises and with no information with regard to the no objection that was to be obtained. This continued in 2003, 2004, 2005 and then again in 2006. Nonetheless, instead of fulfilling his promise, the Petitioner went on executing other sale deeds as alleged but he did not execute the sale deed in favour of the Complainant who was awaiting the fulfilment of the promise made by the Petitioner. This avoidance was continuing and the Petitioner had never refused in writing nor had he raised any demand from the Complainant in respect of the said plot.
4. Feeling harassed, the Complainant filed the complaint that was ultimately allowed by the order dated 04.09.2007.
5. Aggrieved by the said order, the Petitioner filed First Appeal before the State Commission and the same has been dismissed on 19.08.2014 upholding the order of the District Commission. An objection was taken by the Petitioners that it was the Complainant who did not come forward to get the sale deed executed and therefore the plot was settled in favour of somebody else. It was further urged that the no objection certificate had already been obtained on 31.03.1998 and since the Complainant did not come forward within two years of the said no objection certificate to get the sale deed executed, the complaint was barred by time as it was filed in the year 2007.
6. Learned Counsel for the Petitioner has advanced his submissions pointing out to the provisions of Section 24A of the Consumer Protection Act,1986.
7. Learned Counsel for the Petitioner then urged that the complaint itself was not maintainable inasmuch as it was with regard to the sale of a plot and he has heavily relied on the judgment of the Apex Court in the case of Ganeshlal Vs. Shyam Civil Appeal No.331 of 2007 decided on 26.09.2013 to urge that a complaint in respect of a transaction of immovable property arising out of an agreement of sale cannot be subject matter of a deficiency in service before the Consumer Forum as it is clearly a case of specific performance for which the Complainant should have filed a Civil Suit which is even otherwise now barred by limitation. The contention therefore is that not only on account of limitation but even otherwise keeping in view the subject matter of dispute which was for obtaining an execution of a sale deed was not maintainable.
8. Learned Counsel for the Petitioner vehemently urged that the cause of action had arisen long back and it was the Complainant who ought to have approached the Petitioner for the execution of the sale deed which he did not do voluntarily and hence the complaint deserved to be dismissed.
9. The contention is that these aspects have been completely overlooked by the District Commission as well as by the State Commission. Hence the impugned order is vitiated.
10. Learned Counsel for the Petitioner has vehemently urged that the Complainant himself had filed an application for condonation of delay on 31.05.2007 and the District Commission without disposing of the said application proceeded to treat the complaint within time and allow the same. The aforesaid procedure therefore to allow the complaint without disposing of the delay condonation application is erroneous and hence the impugned order deserves to be set aside.
11. Learned Counsel for the Petitioner then urged that the terms and conditions of the agreement dated 23.07.1990 itself provides that in case, the Complainant fails to perform his part of his obligation then the agreement shall stand automatically cancelled and in the present case, the said clause was given effect to where after according to the Petitioner, the land had already been sold to someone else.
12. Responding to the aforesaid submissions, learned Counsel for the respondent submits that findings of facts have been recorded by both the Fora below holding that the Petitioner never disclosed the fact of the no objection Certificate obtained in 1998 and kept it a secret that was disclosed for the first time before the State Commission. The contention therefore is that the cause of action was continuing and the Complainant had been promised by the Petitioner that the sale deed would be executed. Since there was no notice of either cancellation of the agreement or any such intention, the agreement cannot be deemed to have been cancelled automatically.
13. To the contrary as is evident, the agreement was entered into in 1990 and even assuming that the no objection was obtained in the year 1998, the same was after 8 years of waiting.
14. Nonetheless, no information was given about the said no objection having been obtained and therefore limitation cannot start running as there was no notice or knowledge about the said no objection certificate to the Complainant who was totally unaware about the same.
15. Learned Counsel for the Petitioner had vehemently urged that the Complainant is a teacher and a well-read person and therefore he could have obtained the information form the Revenue Authorities which he did not do. This argument has been vehemently opposed contending that the fact of obtaining of the no objection certificate was in the personal knowledge of the Petitioner about which the complainant could not be presumed to be having any knowledge unless it was brought to his notice by none else than by the Petitioner. This was never done and therefore this argument of the Petitioner deserves to be rejected.
16. The District Commission as well as the State Commission after having gone through the written version filed by the Petitioners came to the conclusion that the deficiency was writ large and the limitation was not a bar as the action was continuing cause of action hence the complaint was allowed and the appeal came to be dismissed by the State Commission.
17. The contention of the Petitioners therefore is that for all the reasons as indicated in their arguments and in view of the written submissions filed coupled with the judgments relied on, the Revision deserves to be allowed and the complaint deserves to be dismissed.
18. Learned Counsel for the Respondent has, however, vehemently opposed the Revision Petition contending that the findings of fact with regard to the cause of action being continuous is based on sound reasoning and therefore does not call for any interference in the Revision. Hence the Revision deserves to be dismissed and the impugned orders deserves to be confirmed. It is further submitted by the Respondent that there are other plots also available and therefore the Petitioners can still execute the sale deed in terms of the relief granted by the District Commission and affirmed by the State Commission. It is urged that no document has been filed to demonstrate the sale of the concerned plot or the other plots in the scheme which are still available. It is therefore submitted that in the absence of any proof of the sale of the plot, the contention of the petitioner deserves rejection. 
19. The first issue is as to whether the negotiation of the property by the Petitioners which was for plots would fall within the definition of services within the meaning of the Consumer Protection Act, 1986.  It may be pointed out that the Petitioners have themselves styled their existence as “a Plots and Construction company” and they had plotted Shubham Layout Scheme that was sold for the purpose of housing construction.  The area of the plot is 160 sq. mtr. and was numbered as plot no.70 that was sold at the rate of Rs.6.40 ps. per sq. feet.  The total consideration was Rs.11,022.33 ps.  and the agreement to sale was entered into on 23.07.1990.  Thus, the Petitioners were clearly dealing in plots meant for housing constructions for a consideration.  This was not for any commercial purpose but was rather for individuals.  Reference be had to the definition of services under Section 2(o) as existing in 2007 under the Consumer Protection Act, 1986:-  
    • (o) “service” means service of any description which is made available to potential  [users and includes, but not limited to, the provision of] facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both,  [housing construction,] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;”

20.  The Petitioners had to undertake a permission from the Competent Authority for non-agricultural use of the land and this was also for the benefit of the purchaser as the land was to be utilized for construction purposes.  This was therefore not a mere allotment of a site through an auction and hence the judgments relied by the Learned counsel for the Petitioner are misplaced.  The judgment in the case of ‘Estate Officer vs. Charanjit Kaur (2021) SCR 2096’ was a case where the conversion of the land from lease hold to free hold was involved.  The said judgment therefore is not applicable on the facts of the present case.
21. The second decision relied on in the case of ‘Ganeshlal vs. Shyam in the  Civil Appeal No.331 of 2007’, where the sale was of a plot and that case the sale deed had been executed as it is evident from the fact recorded in the paragraph-7 of the said judgment and accordingly, the appeal was disposed of.  The Appellant in the said Appeal was the seller and he was denied any relief.  The said judgment dated 26.09.2013 also therefore does not come to the aid of the Petitioner.  In this regard, it would be more apt to refer to the judgment in the case of ‘Lucknow Development Authority vs. M.K. Gupta, (1994) 1 SCC 243’ that was followed in the later decisions to hold that the sale of a plot intended for housing construction and for developing a housing area in improved circumstances would amount to a service and any deficiency or defect would make the act accountable before the competent Consumer Forum. This has been reiterated by the Apex Court in the case of ‘Narne Construction Pvt. Ltd. & Other vs. Union of India & Ors. (2012) 5 SCC 359’.
22. Thus, the arguments on behalf of the Learned counsel for the Petitioners on this score is untenable in the eyes of law. The conveyance of the plot was clearly intended  for housing construction purposes and therefore is covered within the meaning of the word ‘Services’ as defined under the Consumer Protection Act, 1986.
23. The second argument advanced on behalf  of the Learned counsel for the Petitioner on which much stress has been laid is that the complaint was filed beyond limitation and that the fora below had disposed of the complaint without addressing to the application for delay filed by the Complainant himself.  Learned counsel for Petitioner has cited the Hon'ble Supreme Court  judgment in the case of ‘State Bank of India vs. V.S. Agricultural,  AIR 2009 SC 2210(1)’ to urge that the complaint itself ought not to have been admitted, as the complaint had been filed far beyond limitation as the agreement  was of the year 1990 and the complaint was filed in 2007.  The other judgments relied on are of this Commission in the cases of ‘Kandimalla Ragavalah vs. New India Assurance Company, NC III(2002) CPJ 259 (NC)’, ‘Kadam Brothers vs.  Ummesh Sathe, NC IC(2015) CPJ 100 NC’, ‘Priya Ramany vs. Surendra Ugale, NC II(2015) CPJ 173 NC’ and ‘Chandigarh Housing Board  vs.  Kirishna Kumar Goel, NC II(2009) CPJ 174 NC’.  
24. The facts of this case have to be examined first.  It is correct that the sale agreement was entered into in the year 1990 but it is admitted on record that the Petitioner was obliged to take a no objection from the Competent Authority for change of user of the land from agricultural purpose to non-agricultural purpose.  This itself according to the Petitioner was obtained after 8 years in 1998.  It is also clear on record that this intimation of having obtained the permission was never tendered by the Petitioner to the Respondent/ Complainant.  To the contrary the argument raised by the Learned counsel for the Petitioner is that the Complainant was a school teacher and he should himself have undertaken steps to find out about the status of the permission.  Having not done so, the delay cannot be attributed  to the Petitioner and hence there is no valid explanation to have waited for filing the complaint 9 years thereafter in 2007.
25. The aforesaid argument has to be rejected inasmuch as  the Complainant was waiting for the Petitioner to come forward if he had obtained the certificate as alleged by him on 31.03.1998.  There is no evidence to demonstrate that the said obtaining of permission was ever intimated to the Complainant by the Petitioner.  This taking of permission being mandatory and obligatory in law, as well as under the agreement, is substantiated by the fact that the Petitioner has itself stated that they got the permission on 31.03.1998. This was also a deficiency in service.  
26. On this issue, the latest judgment of the Apex Court in the case of ‘Samruddhi Co-Operative Housing Society Ltd. vs. Mumbai Mahalaxmi Construction Pvt. Ltd. in (2022) 4 SCC 103’ paragraph nos. 11 to 18 reflect the legal position, which are extracted hereinunder:- 

“11      Section 24A of the Consumer Protection Act 1986 provides 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 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.

12        Section 22 of the Limitation Act 1963⁵ 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 Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan⁶ elaborated on when a continuous cause of action arises. Speaking for the three-judge Bench, Justice PB Gajendragadkar (as the learned Chief Justice then was) observed that

“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 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.

13        In CWT v. Suresh Seth⁷, 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. Justice ES Venkataramiah (as the learned Chief Justice then was) observed that:

“11. […] The distinctive nature of a continuing wrong is that the law that is violated makes the wrongdoer continuously liable for penalty. A wrong or default which is complete but whose effect may continue to be felt 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 of file the return as required by law and if it is held that he has failed to do so then 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 of penalty 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 [(1894) 1 Ch D 293 : 63 LJ Ch 469 : 70 LT 52] observed: “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)

The Court further provided illustrations of continuous wrongs:

“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 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 may be, de die in diem.”

14 In M. Siddiq v. Suresh Das⁸, a Constitution Bench of this Court (of which one of us (Justice DY Chandrachud) was a part) examined the precedents with regards to a continuing wrong. The Court observed that:

“343. The submission of Nirmohi Akhara is based on the principle of continuing wrong as a defence to a plea 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 another. A continuing wrong postulates a breach of a continuing duty or a breach of an obligation which is of a 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 of limitation.”

(emphasis supplied)

15        A continuing wrong occurs when a party continuously breaches an obligation imposed by law or agreement. Section 3 of the MOFA imposes certain general 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 flat 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        Section 6 of the MOFA make the promoter responsible for payments of outgoings till the property is transferred. Section 6 reads as follows:

“A promoter shall, while he is in possession and where he collects from persons who have taken over flats or are to take over flats sums for the payment of outgoings even thereafter, pay all outgoings (including ground rent, municipal or other local taxes, on income taxes, water charges, electricity charges, revenue assessment, interest on any mortgage or other encumbrances, if any), until he transfers the property to the persons taking over the flats, or to the organisation of any such persons, [where any promoter fails to pay all or any of the outgoings collected by him from the persons who have taken over flats or are to take over flats, before transferring the property to the persons taking over the flats or to the organisation of any such persons, the promoter shall continue to be liable, even after the transfer of the property, to pay such outgoings and penal charges (if any) to the authority or person to whom they are payable and to be responsible for any legal proceedings which may be taken therefor by such authority or persons.]”

(emphasis supplied)

17        Sections 3 and 6 of the MOFA indicate that the promoter has an obligation to provide the occupancy certificate to the flat owners. Apart from this, the promoter must make payments of outgoings such as ground rent, municipal taxes, water charges and electricity charges till the time the property is transferred to the flat-owners. Where the promoter fails to pay such charges, the promoter is liable even after the transfer of property.

18        Based on these provisions, it is evident that there was an obligation on the respondent to provide the occupancy certificate and pay for the relevant charges till the certificate has been provided. The respondent has time and again failed to provide the occupancy certificate to the appellant society. For this reason, a complaint was instituted in 1998 by the appellant against the respondent. The NCDRC on 20 August 2014 directed the respondent to obtain the certificate within a period of four months. Further, the NCDRC also imposed a penalty for any the delay in obtaining the occupancy certificate beyond these 4 months. Since 2014 till date, the respondent has failed to provide the occupancy certificate. Owing to the failure of the respondent to obtain the certificate, there has been a direct impact on the members of the appellant in terms of the payment of higher taxes and water charges to the municipal authority. This continuous failure to obtain an occupancy certificate is a breach of the obligations imposed on the respondent under the MOFA and amounts to a continuing wrong. The appellants therefore, are entitled to damages arising out of this continuing wrong and their complaint is not barred by limitation.”

27. Here also the failure to intimate about the permission and not executing the deed amounts to a deficiency in service which was a continuing wrong.  Another judgment that reflects on the triggering of the period of limitation where it has been held that if the negotiation and the assurances are continuing, then unless there is a final refusal terminating the negotiations, the limitation will not tick of.  Reference be had to the case of ‘Shree Ram Mills Ltd. vs. Utility Premises Pvt. Ltd., (2007) 4 SCC 599‘. Paragraph 30 of the said judgment is extracted hereinunder:

 “30. Once we have come to the conclusion that the learned designated Judge was right in holding that there was a live issue, the question of limitation automatically gets resolved. This Court in Hari Shanker Singhania case [(2006) 4 SCC 658] held that till such time as the settlement talks are going on directly or by way of correspondence no issue arises and with the result the clock of limitation does not start ticking. This Court observed: (SCC pp. 667-68, para 24)

“24. Where a settlement with or without conciliation is not possible, then comes the stage of adjudication by way of arbitration. Article 137, as construed in this sense, then as long as parties are in dialogue and even the differences would have surfaced it cannot be asserted that a limitation under Article 137 has commenced. Such an interpretation will compel the parties to resort to litigation/arbitration even where there is serious hope of the parties themselves resolving the issues. The learned Judges of the High Court, in our view have erred in dismissing the appellants' appeal and affirming the findings of the learned Single Judge to the effect that the application made by the appellants under Section 20 of the Act, 1940 asking for reference was beyond time under Article 137 of the Limitation Act. … As already noticed, the correspondence between the parties, in fact, bears out that every attempt was being made to comply with and carry out the reciprocal obligations spelt out in the agreement between the parties.”

These observations would clearly suggest that where the negotiations were still on, there would be no question of starting of the limitation period.”

28. The facts of the present case as recorded by the Fora below clearly demonstrate that the injury caused is in the nature of a breach of the continuing duty of the Petitioner to execute the deed in favour of the Respondents which was not done  till the date the Complaint was filed.  On the other hand they had also not finally refused to execute the deed or terminate the agreement nor had they given any intimation to that effect. The deficiency in payments as alleged were never raised by any demand by the petitioners during this period nor was the agreement dissolved for any such reason.
29. As against this, Learned counsel for the Petitioner urged that the agreement itself says that if the Complainant does not come forward to complete the formalities and make the payments, the agreement would stand automatically terminated.  The aforesaid argument of the Learned counsel for the Petitioner cannot be countenanced inasmuch as it is the Petitioners who themselves state that they obtained the permission on 31.03.1998 after 8 years of the agreement.  The obligation to obtain the permission was that of the Petitioners to ensure that the lawful conversion of the land for construction purpose is made available to enable the purchasers to move forward with constructions unhindered by any legal impediment. The Petitioners being the developers only could have obtained the said permission which they did in 1998. This obligation of obtaining permission was not cast on the purchasers. The Petitioners therefore had continuously failed to discharge their obligation of obtaining permission for almost 8 years till 1998. Once it is held that it was their obligation to do so, it naturally follows that it is they who had to convey this to the purchasers which admittedly they did not do.  They did not intimate the Respondent/ Complainant about this permission and compelled the Complainants to file a consumer complaint. 
30. A self-serving clause of automatic termination is unfair and even otherwise arbitrary being unilateral in nature.  Such superimposed clauses in agreements have been deprecated by the Apex Court in the decisions rendered including that in the matter of Wing Commander Arifur Rahman Khan and Ors. Vs. DLF Southern Homes Private Limited & Ors., (2020) 16 SCC 512.

31. To the contrary their argument is that the Respondents ought to have obtained the same on their own. This is a clear breach on the part of the Petitioners and is an excuse that seems to have been set up for shifting an unwarranted blame on the Respondents without any evidence of having intimated the Respondents. This by itself is sufficient to construe that the deficit was on the part of the Petitioner and the Complainant even otherwise having obtained the benefit of the lottery system had made the payments as has been found on facts by the fora below. 
32. Thus, for all the reason stated hereinabove, we do not find any such irregularity or illegality in the impugned orders that too even for this petty dispute to interfere in the matter.  To relegate the Respondent/ Complainant for filing a Civil Suit at this stage after a lapse of 34 years would be another travesty of justice.   The failure on the part of the petitioners to convey the property is a serious deficiency in service. 

       33.The Revision Petition is dismissed accordingly.