P.N.Kashalkar, Hon’ble Presiding Judicial Member:

This complaint came to be filed on 23/03/2009 alleging deficiency in service on the part of opp.party.  Prayer of the complainant in the complaint is that delay if any in filing the complaint be condoned and direct the opponent to deliver to the complainant vacant and peaceful possession of the flat no.202, C-Wing in building “Kaveri” situated at Vasant Nagari, Main Ambadi Road, Vasai (E), Thane duly completed in all respects.  Alternatively, this Commission be pleased to direct the opponent to pay to the complainant a sum of Rs.2,82,000/- with interest @18% p.a. on the said amount and also to direct the opponent to pay to the complainant an amount of Rs.25 lakhs by way of  damages and compensation  and the complainant has also sought interim relief restraining the opponent pending the complaint from creating third party interest against the flat booked  of which delivery has not been given till filing of the complaint.  In this complaint the complainant has moved an application for condonation of delay which is numbered as M.A.no.539/2009.

        Upon hearing Mrs.S.Miskin, advocate for the complainant, this Commission by order dated 02/07/2009 had rejected the delay condonation application and complaint was rejected as time barred.  Said complaint was primarily rejected on the ground that cause of action for delivery of possession arose for complainant in the year 2005, particularly, when agreement was terminated and this Commission observed that therefore this complaint is hopelessly time barred.  Aggrieved by the rejection of complaint being time barred, the complainant had filed appeal in Hon’ble National Commission being F.A.No.328/2009.  National Commission allowed the appeal, quashed the impugned order passed by this Commission and directed the appellant to appear before State Commission on 30/10/2009 and directed us to decide the application for condonation of delay afresh.  This is how we are now required to decide the application for condonation of delay afresh.

        So, along with the complaint this application for condonation of delay has been filed.  In this application for delay condonation the complainant had mentioned that cause of action arose in or about August 2006 when the opponent failed to handover possession of the said flat duly completed in all respects.  According to the applicant/complainant, the cause of action is continuous and continuing against the opponent. Moreover, the applicant was pursuing the matter but due to death of the two members of the family within a short span of time after August, 2006, the complainant was required to go and stay in Goa to get settled the family matters of his grandmother Smt.Shantaben Kini and for two years or more he was required to pursue the litigation pending in Goa in respect of his grandmother, who was ultimately brought to Mumbai in 2008.  That is the reason why presentation of complaint was belated for reasons beyond control of the complainant and it was without any deliberate negligence on his part.  The applicant further pleaded that opponent has not refunded the amount nor offered possession of the flat and therefore, opponent is guilty of deficiency in service.  If delay is not condoned, he would suffer irreparable loss and therefore, he filed application for condonation of delay on 19/03/2009 seeking condonation of delay in filing the complaint.

        Initially, the application M.A.no. 539/2009 whereby delay was sought to be condoned was already sworn before notary advocate and afterwards the complainant has filed a detailed affidavit seeking condonation of delay on 25/03/2010.  In that affidavit the complainant has stated on oath that there was continuous correspondence between him and opponent and their associates regarding the completion of flat no. 202 “C” wing in Kaveri building and he has also sent the banker’s cheque for Rs.25,035/- dated 06/02/2006 under protest and requested to fix up an appointment for inspection and for taking possession of the said flat.  However, said cheque was returned by the opponent stating that the name of the opponent has been changed.  Thereafter, opponent once again made demand of Rs. 9,500/- towards MSEB charges.  Applicant was totally confused about the real name of the opponent as every time opponent was making demand under different names and the amounts kept varying every time without any quantification.  Therefore, applicant approached Consumer Guidance Society of India and addressed a letter dated 2/08/2006 to the opp.party give possession of the said flat to him duly completed in all respects without further delay and also requested if any amount receivables by them, opponent should give details thereof so that they could be paid.  There was no response, he was was such required to file a complaint.  But due to death of the two elder members of the family, the applicant was compelled to stay  in Goa till family property matters were settled.  He returned to Mumbai in or about December, 2008 and immediately thereafter he filed consumer complaint along with delay condonation application by way of abundant precaution not to give chance for the opp.party to take any technical objections. 

        In para 5 of the affidavit he pleaded that opponent/respondent had demanded balance payment by letter dated 20/03/2009 and according to their letter dated 03/04/2009, the opponent had terminated the agreement as of 20/03/2009 and therefore, cause of action if any has arisen on 20/03/2009 or 03/04/2009 whereas the above numbered complaint had been filed before this Commission on 19/03/2009.  He further pleaded that copy of occupancy certificate dated 09/03/1998 given by the opponent does not permit physical possession to the residents unless power supply and water is made available in the flat.  The opponent however had not given any further documents for complying with the said conditions.  The copy of occupancy certificate is annexed and marked as Exhibit-J to the complaint.  Therefore, the complainant on affidavit stated that there is no delay in filing the above numbered complaint but he has filed application for condonation of delay as a matter of abundant precaution and not to give any chance to the opp.party to raise any technical objections.      

        To this there is counter affidavit filed on 20/03/2010 by the opponent.  In the said affidavit contention of the opponent is that what is sought to be condoned is lethargy and not the delay.  The law does not contemplate condonation of lethargy.  In para 8 of the said reply  the opponent has further asserted that there is no plausible justifiable reason for condonation of lethargy.  They further prayed that application for condonation of delay should be rejected in limine and complaint also should be dismissed.

        We heard submissions of Adv.Mr.U.B.Wavikar for the complainant and Adv.Mr.V.D.Patil for the opponent. 

        We are finding that this is basically a dispute between the complainant/flat purchaser on the one hand and Renuka builders and Developers Pvt.Ltd. (known as Mansi Overseas Pvt. Ltd.) on the other.  Complainant had booked a flat with Renuka builders and Developers Pvt.Ltd. by entering into an agreement with opponent on 10/06/1994.  He had booked a flat no.202, C-Wing in building “Kaveri” situated at Vasant Nagari, Main Ambadi Road, Vasai (E), Thane.  Complainant had paid all the installments as per clause 10 of the agreement and only balance of RS.25,000/- was remaining.  Said agreement was duly registered with Sub-Registrar office of Vasai.  Opp.parties were to deliver possession of the flat on or before June,1995 but construction was delayed and it appears that opponent have received occupancy certificate of the building on 09/10/2001 but complainant was called upon by the opponent in May-1999 when part of occupancy certificate was not procured by the opponent.  When complainant had gone on the site of the building with intention to take possession of the flat, he noticed defects in the flat.  The W.C. i.e. the lavatory with arrangement of flushing bowl with water was non-functional and it was not possible for the complainant to take possession of the flat.  In the circumstances complainant refused to take possession of the flat.  According to complainant, except amount of Rs.14,925/- installment payable on taking possession of the flat, everything was paid by him.  Still possession was not given by the opponent to the complainant.  On 29/12/2004 complainant was surprised to receive a letter dated 20/12/2004 from one Manasi Overseas Pvt. Ltd. calling upon the complainant to take possession of the said flat and pay Rs.24,035/- within 15 days.  Then there was exchange of letter between the complainant and opp.party and on 19/08/2005 opp.party sent through their advocate a notice to the complainant informing him that since the complainant has not paid Rs.24,035/- said agreement between the complainant and opp.party was terminated and complainant was called upon to collect RS.2,71,000/- excluding  Rs.11,000/- within 60 days from the receipt of notice.  Complainant again sent a letter to the opponent.  So, dispute is going on between the complainant and opp.party in respect of not giving the flat without defect and complainant not paying remaining amount of Rs.24,035/-. 

        What is pertinent to note is the fact that even during the pendency of the complaint in this Commission letter was sent by the opponent again demanding balance payment i.e. letter dated 20/03/2009.  It has been sent through Seth Developers Pvt.Ltd. dated 20/03/2009 terminating the agreement dated 10/06/1994.  This letter dated 20/03/2009 terminating the agreement of the complainant and asking the complainant to collect balance amount of consideration after deducting cost charged by them towards Municipal charges, MSEB reinstallation etc.  It has given a new lease of life to the cause of action accrued in this case to the complainant.  This letter is finally telling the complainant that his agreement of sale dated 10/06/1994 has been terminated and he should collect balance amount  and while refunding the balance amount certain charges would be deducted as mentioned above.  This letter is reviving the cause of action or is keeping alive the cause of action so far as limitation is concerned.  Cause of action is bundle of facts which gives rise to a particular person to file legal action in court of law or consumer complaint in the consumer Forum or Commission.  Though in the affidavit in reply opp.party has asserted that they had terminated the agreement with complainant in 2005-06 still sending this letter on 20/03/2009 itself shows that earlier letters were simply letters requesting the complainant to pay the balance amount and take possession of the flat and it was simply a threat to terminate the tenancy but in reality the agreement was terminated by Seth Developers on 20/03/2009 whereas the complaint has been filed on 19/03/2009.  In fact, in view of this letter the claim of the opponent that complaint is time barred is virtually given up by the opponent themselves and it  must be held that claim for possession made by the complainant in this complaint which we are required to decide is appearing within limitation for the simple reason that his agreement on 10/06/1994 was terminated by letter dated 20/03/2009 and from 20/03/2009 complainant has got cause of action to file the consumer complaint and since the complaint is filed on 23/03/2009, we hold that complaint filed by the complainant is absolutely within period of limitation.  By terminating his agreement dated 10/06/1994 the opponent has finally denied complainant’s right to take possession of flat no. 202 which he had booked by agreement date 10/06/1994.

        Even otherwise we are finding that on the basis of previous pleadings National Commission has remanded this matter to this Commission.  Delay is properly explained by the complainant  since he was prosecuting the litigation between the family members on the one hand and his grandmother on the other by staying at Goa for more than two years.   There was also a reason that there was latest termination letter dated 20/03/2009 sent by Seth Developers terminating his agreement of sale dated 10/06/1994 and therefore, in the circumstances we hold that complaint filed by the complainant is not barred by limitation.  It is filed within limitation relying upon the letter of termination dated 20/03/2009.  Of course now the complainant will to amend the  complaint to challenge the agreement of sale which has been  terminated by the opp.party by sending letter mentioned, supra.  Hence, we pass the following order:-

                                        :-ORDER-:       

1.           Complaint is admitted

2.           Delay if any is condoned but we held that in view of latest letter of termination of agreement dated 20/03/2009 the complaint which is pending before this Commission must be held to be filed within limitation.

3.           M.A.no. 539/2009 stands disposed of.

4.           Copies of the order herein be furnished to the parties as per rule.  

Nbh