1.       This appeal under section 51(1) of the Act 2019 is in challenge to the Order dated 07.05.2021 of the State Commission in complaint no. 1219 of 2016.

2.       Mr. Rabindra Singh, learned counsel appears for the appellants (the ‘complainants’). No one appears for the respondents (the ‘builder co.’) though it has full knowledge of the case and is represented through counsel. 

3.       A perusal of the record shows that this is a builder-buyer dispute. Briefly, the complainants paid a sum of Rs. 42,00,000/- to the builder co. on 09.07.2005 and a sum of Rs. 44,250/- on 10.10.2005 for a residential unit. The builder co. vide its letters dated 29.12.2010 (02 nos.) offered possession of the unit with concomitant stipulation that certain demand as per a ‘final statement of account’ referred to therein together with stamp duty and mandatory additional open car parking space may be cleared and a ‘no dues letter’ obtained which will be required at the site for final finishing of the unit for physical possession. The builder co. sent letters dated 23.05.2011, 15.02.2012, 11.09.2012 and 18.12.2015 vide which inter alia interest for delay in making payment, holding charges and maintenance charges were also asked for. In the letter dated 18.12.2015 a total amount of Rs. 26,34,690/- was demanded. Inter alia aggrieved by the additional demand(s) by the builder co. the complainants approached the State Commission. The State Commission dismissed their complaint on limitation.

4.       A reading of its Order shows that the State Commission has based its findings on the letter dated 29.12.2010 vide which the builder co. offered possession to the complainants subject to their meeting the demand referred to therein and obtaining a ‘no dues letter’ prior to final finishing of the unit for physical possession. Taking the said date i.e. 29.12.2010 to be date on which the cause of action arose it has opined that the complaint which was filed on 07.10.2016 was beyond the two-year limitation period prescribed under Section 24A(1) of the Act 1986. 

5.       We are constrained to note that the State Commission has overlooked the fact that even if in 2010 the complainants did not come forth to take possession after paying the additional demand made by the builder co. (which was condition precedent to taking possession) the builder co. was in any case still retaining their deposited amount of Rs. 42,44,250/- since 2005 and had not returned the same to the complainants, with or without deduction, with or without interest, till the complaint was made in 2016. The amount deposited by the complainants continues to be with the builder co.

The State Commission has also ignored the following specific averments made by the complainants in their complaint:

Para 21 of the complaint: “That the OP’s with their malafide and dishonest intention have withhold the rightful money of the Complainants and have caused financial loss to the Complainants by withholding rightful money of the Complainant, having procured the same under good faith and trust. The OP’s have thereby, not only committed breach of trust, but have also caused illegal losses to the Complainants, having caused illegal gains to themselves.”

Para 22 of the complaint: “That being constrained the Complainant no. 1 also sent a notice through his counsel on 22.08.2016 to the O.P. No. 1 and 2 which was duly served by the complainant upon the OP’s whereby the demands raised by the OP No. 1 vide their letter dated 30.06.2016 against the complainant to be removed and the possession of the flat also be given to the complainants along with the interest @ 24% per annum on the basic sum i.e. Rs.51,07,625/- from the date of first installment till the final settlement and also a sum of Rs.5,00,000/- (Five Lacs Only) for causing losses, harassment, torture and mental agony to the complainants within 15 days from the receipt of the said notice dated 22.08.2016 and the same was duly delivered upon the Opposite Parties but despite service of the notice OP’s did not paid any heeds to the Complainants.”  

Para 24 of the complaint: “That cause of action for filing the present suit arose in favour of the complainants and against the opposite party enumerated above and the same is still subsisting and continuing one.” 

6.     We are of the considered view that in the facts and circumstances of the case the cause of action was subsisting on a continuing basis and there was no violation of the statutory period of two years provided under section 24A(1). The obligations and duties of the builder co. towards the consumer never ceased to exist. The acts and omissions on the part of the builder co. which give rise to the wrong extend beyond a single completed act or omission and were of a continuing nature concomitantly causing continual legal injury de die in diem.

We may also observe that even the very fact that the builder co. was indefinitely retaining the complainants’ deposited amount could in itself have been sufficient cause to justifiably condone the delay under section 24A(2) if needed, anything otherwise would have been tantamount to a travesty of justice, leaving the complainants helpless and remediless. But, as already stated, any condonation under section 24A(2) was not required in this case as physical possession was never effected, the complainants’ deposited amount was still lying with the builder co. from 2005, the cause of action was subsisting on 07.10.2016 when the complaint was preferred before the State Commission.

7.     We are further constrained to note that any objection regarding limitation was not even raised by the builder co. in its written statement. In para 7 of its Order, the State Commission itself, while summing the various preliminary objections on maintainability raised by the builder co., had not mentioned any objection re limitation. But then it went ahead to dismiss the case on limitation.

8.       The Order dated 07.05.2021 of the State Commission cannot sustain. The same is set aside and the complaint is restored to its original number before the State Commission. The State Commission is requested to adjudicate the case on its merits. The parties shall appear before the State Commission on 12.06.2023.

No one has appeared today on behalf of the builder co. As such, in the interest of justice, if, for whatever reason, the builder co. i.e. the opposite parties before the State Commission do not appear on 12.06.2023, the State Commission is requested to issue notice to them, in which contingency the steps shall be taken by the complainants.

9.     The Registry is requested to send a copy each of this Order to the parties in the appeal and to their learned counsel immediately. It is also requested to forthwith communicate this Order to the State Commission by the fastest mode available. The stenographer is requested to upload this Order on the website of this Commission immediately.