Order no. 5, dt. 23.02.2023
Today is fixed for passing judgement in respect of this M.A. case which has been instituted by the op nos. 2, 3, 4 of C.C. case no. 173 of 2022, by filing a petition u/s 69 (1) of Consumer Protection Act, 2019 along with application u/s 38 (8) of the said Act.
The complainant of the noted C.C. case as op of this M.A. case has contested this matter by filing W/O.
Heard the argument highlighted by ld. Advocates of both sides. Considered submission.
It is the main point of contention and argument of the applicant side of this M.A. case that the C.C. case no. 173 of 2022 is not maintainable as it is barred by limitation. It is pointed out by the applicant side that they have delivered possession of the flat to the complainant of the above noted complaint case on 6.12.2002 but the complainant who is the op of this M.A. case has filed this above noted complaint case after the laps of 20 years. Over this issue it is also pointed out by the applicant side that only by sending legal notice dt. 22.6.2022 the complainant who is the op of this M.A. case cannot get rid of the liability of limitation provision which is described in Section 69 of the Consumer Protection Act, 2019. In this regard ld. Advocate for the applicant side referred one judgement “P.N. SHUKLA VERSUS UNION OF INDIA & OTHERS W.P. (C) NO. 1927/2017, In the High Court of Delhi at New Delhi.”
On the other hand it is the main point of contention and argument of the op of this M.A. case that cause of action is a continuous process and it cannot be considered only on the basis of single fact and/ or point. Over this issue ld. Advocate for the op of this M.A. case referred the decision of Hon’ble Apex Court which is passed in Civil Appeal No. 4000 of 2019 in case of Samruddhi Co-operative Housing Society Ltd. Vs. Mumbai Mahalaxmi Construction Pvt. Ltd.
For the purpose of arriving at the decision in this case this District Commission after going through the materials of this case record and after making scrutiny of the materials of the case record of C.C. case no. 173 of 2022 finds that the applicants of this M.A. case delivered possession letter certificate to the complainant on 6.12.2002 but facts remain that the applicants who are the ops of the above noted C.C. case have not yet executed and registered the deed of conveyance in respect of flat no. 3D, 3rd floor located at residential complex “Ashiana Enclave” situated at Mouza Konnagar, plot no. 7638 and 2615 of Khatian no. 1998 and 3253 situated at holding no. 30 Dayal Shiromani Lane ward no. 13 of Konnagar municipality. This matter is clearly indicating that the cause of action which was started in the year 2002 is still continuing and so this case is not barred by limitation u/s 69 (1) of Consumer Protection Act, 2019. Moreover, in this regard it is the settled principle of law that the applicants who are the ops of the above noted C.C. case are responsible for transferring the title to the flats of the society along with occupancy certificate. The failure of the applicants of this case in the matter of transferring the title and to issue occupancy certificate is a deficiency of service. This legal principle has been observed by the Hon’ble Apex Court and it is reported in Civil Appeal No. 4000 of 2019 in case of Samruddhi Co-operative Housing Society Ltd. Vs. Mumbai Mahalaxmi Construction Pvt. Ltd. Similar views has also been observed by the Hon’ble Apex Court in the case of Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor and it is reported in Civil Appeal nos. 6044 and 7149 of 2019 dt.7.4.2022.
A cumulative consideration of the above noted discussion goes to show that the plea adopted by applicants of this M.A. case who are the ops of C.C. case no. 173 of 2022have not any basis at all and so this District commission is of the view that there is no ground for allowing this M.A. case no. 67 of 2022.
In the result, it is accordingly,
Ordered
that this M.A. case no. 67 of 2022 be and the same is dismissed on contest.
No order is passed as to costs.
Let the case record of this M.A. case no. 67 of 2022 be tagged with the case record of C.C. case no. 173 of 2022.
