This appeal has been filed by appellants Rajendra Kumar Poddar & Anr. against the order dated 05.09.2017 passed by the State Consumer Disputes Redressal Commission, West Bengal, (in short ‘the State Commission’), wherein the complaint filed by the complainant being No.CC/11/2015 has been dismissed by the State Commission on the ground of limitation.

2.      Heard the learned counsel for the appellants at the admission stage and perused the record.  Learned counsel for the appellants stated the complaint case was proceeding before the State Commission and it has reached the stage of filing evidence.  However, on an application filed by the opposite parties, the State Commission has dismissed the complaint on the ground of having been filed after two years from the date of cause of action.  Learned counsel stated that the possession was taken on 18.05.2012 and after taking the possession the complainant noticed that there were several defects in the construction and the complainant was pursuing the matter with the opposite parties.  The opposite parties were giving assurance for rectification of the defects, however, when no rectification was done the complaint was filed on 08.01.2015. The State Commission has considered the period of limitation from the date of possession whereas the fact is that complainant was pursuing with the opposite parties and it was continuing cause of action as all the defects were not noticed initially and later on more defects came to the light, therefore, the limitation should be counted from the date of awareness of all the defects mentioned in the complaint.  All the defects were noticed in the month of January, 2013 only and therefore, the complaint filed in January, 2015 was within the limitation period. 

3.      I have considered the arguments advanced by the learned counsel for the appellants and have examined the material on record.  First of all, it is seen that the appeal has been filed with a delay of 41 days as reported by the Registry.  However, the delay is condoned on the grounds mentioned in the application for condonation of delay.

4.      The State Commission has relied on Kandimalla Raghavaiah & Co. Vs. National Insurance Co. Ltd. & Anr. 2009 (4) CPR 17, wherein the Hon’ble Supreme Court has reiterated the decision of the Hon’ble Supreme Court in State Bank of India Vs. B.S. Agricultural Industries, 2009 (3) CPR 107, wherein it has been mandated that the consumer forum has to decide the issue of limitation first and complaint will not be admitted if it is filed after two year beyond the date of cause of action.  Once the possession was taken on 18.05.2012, it cannot be said that the defects did not come to the notice of the complainant even within a period of one or two months.  First of all, the complainant would have taken the possession only after prior inspection of the unit.  However, even if that was not done, atleast the complainant should have known the defects while taking possession or atleast within a period of one or two months.  Thus, clearly, the State Commission has rightly decided the issue of limitation by calculating the period of limitation from the date of possession i.e. 18.05.2012.  Clearly the complaint was filed on 08.01.2015, which is much beyond the period of two years from the date of possession.  This Commission in Dr. Gopal and Another Vs. Deorao Ganpat Kaore and others (R.P.No.1915 of 2015 decided on 11.12.2015), has held the following:-

“13.  I have carefully considered the decisions relied upon by the complainant Dr. Gopal Bhutda. In none of the judgements, it has been held that the period of limitation in respect of patent defects will commence from a date later on the date on which the said patent defects comes to the notice of the complainant. No doubt, a builder is under an obligation to rectify the defects, if any, found in the house constructed by him, but if he fails to do so, the complainant is required to approach a consumer forum within two years from the date on which the said defect is noticed by him for the first time.  In case he was prevented by sufficient  cause from filing a complaint within the prescribed period of limitation, he must file an application seeking condonation of delay in filing the complaint…….”     

5.      From the above view taken by this Commission, it is quite clear that the State Commission has rightly decided the question of limitation as the defects came to notice of the complainants on the date of taking possession.  It is the case of the appellants that the appellants were pursuing with the builder/opposite party.  This itself proves that the appellants were in the knowledge of defects and that is why they were pursuing with the opposite party.  Even if one allows one or two months’ time to know all the defects, the complaint remains still time barred.

6.      On the basis of the above examination, it is clear that the complaint was definitely filed beyond the period of two years and therefore, the State Commission has rightly dismissed the complaint on the ground of limitation.   Accordingly, I do not find any force in the present appeal as the order of the State Commission is based on correct appreciation of law and facts and does not require any interference from this Commission.  Consequently, FA No.1031 of 2018 is dismissed at the admission stage.