BEFORE:

HON’BLE MR. SUBHASH CHANDRA, PRESIDING MEMBER

HON’BLE DR. SADHNA SHANKER, MEMBER

For the Appellant         Mr Deepak Aggarwal, Advocate (VC)

For the Respondents    Ex parte vide order dated 10.10.2019              

ORDER

PER SUBHASH CHANDRA

1.      This appeal under Section 19 the Consumer Protection Act, 1986 (in short, the “Act”) is directed against the order dated 08.12.2016 of the State Consumer Disputes Redressal Commission, U.T., Chandigarh in Consumer Complaint no. 888 of 2016 dismissing the appeal with costs of Rs 20,000/-.

2.     We have heard the learned counsel for the appellant and perused the records. Respondent had been placed ex parte on 10.10.2019.

3.     The brief conspectus of facts of the case are that the appellant’s son was the original allottee of Flat No. 403, 4^th Floor, Golf View Towers, Sector 91, SAS Nagar, Mohali admeasuring 1582 sq ft for a sale consideration of Rs 34,00,000/- as per Agreement to Sell dated 24.02.2007, which was revised as per Agreement dated 30.08.2008 to Rs 37,75,000/-. As per Clause 13 of this supplementary agreement, possession was promised by 31.12.2009 subject to force majeure conditions and, in case of default, it was agreed to compensate the allottee @ Rs 20,000/- per month till possession as per Clause 14. Vide re-allotment letter dated 30.05.2013 the flat was transferred in the name of the present appellant who is the father of the original allottee. As per the appellant, possession of the flat was offered on 25.10.2012 by the respondent to the original allottee without completion of the development works and without obtaining a Completion or Occupation. Failure to take possession was stated by respondent to entail forfeiture of 25% of the sale consideration. A “No Dues Certificate” was issued by the respondent in favour of the original allottee dated 08.09.2016. Appellant contended that the matter was a covered matter and has placed reliance on order of this Commission in Randeep Singh Oberoi & Anr. Vs. M/s A&A Builders & Developers & 6 Ors., Appeal No. 714 of 2013 dated 19.01.2015 wherein it was directed to continue to pay compensation @ Rs 20,000/- per month till Completion/Occupancy Certificate was issued in respect of the same project. It was also contended that vide various interim orders, removal of defects had also been ordered. Appellant submitted that it had been learnt that Completion Certificate had been obtained on 28.12.2015 and hence deficiency in service on part of the respondent was apparent. Refund with interest @ 18% on the sum deposited was claimed as per this Commission’s judgment in Sunit Enterprises & Anr. Vs. Mohan Lal N. Jogi & Anr. It was contended that the cause of action was a continuing cause since neither possession of the flat complete in all respects had been offered nor refund provided. Sale Deed had also not been executed.

4.      The impugned order has held that no documents had been brought on record to establish that the flat in question had been transferred in May 2013 in the name of the present appellant. It is admitted by the appellant that the said document had inadvertently not been brought on record by the counsel. Appellant contends that he had been non-suited by the State Commission on the ground that the original allottee had signed the Possession Certificate on 25.10.2012. It is the appellant’s case that this was done since he would have been liable under Clause 16 of the Agreement dated 24.02.2007 for holding charges. It was submitted that as per this Commission’s judgment in Mopar Builders & Developers Pvt. Ltd. Vs. Unity Cooperative Housing Society Ltd., 1 (2001)  CPJ 71 (NC) cause of action continues till occupation certificate is issued which had admittedly been obtained only in December, 2015. Reliance was also placed on this Commission’s judgment in Ashwin Tikmani Vs. Anjali Chakraborty & Anr., RP No. 6 of 2016 dated 03.10.2016 that dismissing a complaint as barred by limitation under Section 24A when Sale Deed was not executed was a material irregularity. It was therefore argued that the State Commission erred in ousting him under Section 24A. It was contended that possession was offered in 2011 and thereafter in May 2013. Respondents were therefore liable to pay a penalty of Rs 20,000/- per month since possession had not been delivered within three years from the agreement dated 24.2.2007. It is the contention of the appellant that in view of the established deficiency in service due to failure in fulfilment of contractual obligations by the respondent, he was entitled to refuse possession and seek refund as held in Pioneer Urban Land & Infrastructure Ltd. Vs Govindan Raghavan, (2019) 5 SCC 725 decided on 02.04.2019.    

5.      From the foregoing it is manifest that the moot issue is whether the appeal has been correctly dismissed on grounds of limitation.

6.      On the finding of the State Commission that the complaint was barred by limitation under Section 24A of the Act, it is apparent that the possession offered on 25.10.2012 was a paper possession since an occupancy/completion certificate prior to this date was not brought on record before the State Commission. As held in Samruddhi Co-operative Housing Society Ltd. vs. Mumbai Mahalaxmi Construction Pvt. Ltd., Appeal (Civil) no.4000 of 2019 decided on 11.01.2022 by the Hon’ble Supreme Court, such an offer of possession is a mere paper possession. The cause of action is therefore a continuing cause and hence the ousting of the appellant on this ground is clearly erroneous. The finding of the State Commission in the impugned order that no document had been placed before it to establish that the flat in question was transferred to the name of the present appellant cannot be faulted in view of the admission by the appellant that the letter dated 30.05.2013 issued by the respondent could not be brought on record before the State Commission. By remaining unrepresented and not contesting the matter in these proceedings, the respondent has admitted the transfer. It has also not denied the relevant clauses in the Agreement dated 24.02.2007 and the Supplementary Agreement dated 31.12.2009. It is also not denied that the offer of possession was made prior to the obtaining of the Occupancy Certificate dated December 2015, although the same is not on the record.  

7.      For the aforesaid reasons, the order of the State Commission dismissing the appeal cannot be sustained. The State Commission has clearly fallen in error in holding the appeal as barred by limitation since the cause of action is a continuing one. The appeal is accordingly allowed. The impugned order is set aside as prayed. There shall be no order as to costs.  Pending IAs, if any, stand disposed of with this order.