1.      This Revision Petition No.789 of 2022 has been filed against the impugned order of West Bengal State Consumer Disputes Redressal Commission, Kolkata (‘State Commission’) dated 01.02.2022. Vide this order, the State Commission allowed Appeal No. A/313/2019 and set aside the District Consumer Disputes Redressal Forum, Kolkata Unit-III (South) (‘District Commission’) order dated 12.03.2019 wherein the complaint was dismissed as barred by limitation.

2.      For Convenience, the parties in the matter are being referred to as mentioned in the Complaint before District Forum.

3.      Brief facts of the case, as per the complainants, are that they entered into an Agreement on 25.04.2012 to purchase a plot of land measuring 1440 sq. ft. for a consideration of Rs.3,40,000. The complainants initially paid Rs.1,02,000 as earnest money and undertook to pay the remaining balance in 36 monthly instalments. They duly paid the entire consideration as per the terms of the agreement. Subsequently, they were given possession of the plot through execution of a Conveyance Deed dated 16.10.2015. However, the area of the plot was not properly demarcated, which prevented the complainant from constructing a boundary wall or completing the plot's development for the intended purpose. Despite repeated requests, the Opposite Parties (OPs) failed to fulfil their obligations under the agreement, leading to frustration on his part. Left with no other option, he issued a legal notice on 11.12.2017 and later filed the instant complaint before the District Commission, seeking relief for the non-performance of the OPs' obligations.

4.      The learned District Forum vide order dated 12.03.2019, dismissed the complaint on admission being barred by limitation with the following reasons:

“Today is the date fixed for hearing regarding admission of the complaint. Ld. Advocate for the Complainant is present. Heard Ld. Advocate. Perused the petition of complaint and the documents annexed therein. On perusal of the complaint petition and the documents therein it appears that the Deed of Conveyance in respect of the plot of land has been executed in favour of the Complainant on 16/10/2015. The recital of the said Deed of Conveyance is very categorical that the possession of the schedule property has been delivered to the purchaser vender. So if the Deed of Conveyance has been executed on 16/10/2015 the cause of action if any existed till 16/10/2017. But the present complaint has been filed much after the statutory period of limitation of two years. No petition for condoning the delay is filed by the Complainant. In such a situation, complaint is not maintainable and thus liable to be dismissed. It may be mentioned that mere sending of notice, will not extend the period of limitation. Thus CC/123/2019 is dismissed accordingly being not admitted.”

5.      Being aggrieved by the impugned order, the complainants filed an Appeal and the learned State Commission, vide order dated 01.02.2022 allowed the Appeal and set aside the District Commission’s order with the following observations:

 “Heard both sides at length. From the averments of the Petition of complaint it appears that the complainant/ appellant entered into the agreement on 25.4.2012 as the Deed of conveyance was made on 16.10.2015 though the respondent did not comply the terms and conditions of the agreement in respect of the Development of the plot nor any demarcation of the plot transferred in favour of the complainant was shown physically so that the appellant could get the order of conversion of the plot from the Competent Authority within the reasonable time. Mere assurance to complete such condition or development of the Project was not sufficient rather it compelled the appellant to send Advocate's letter dated 7.12.2017 [which is Annexure-E of the file].

Here non-fulfilment of the condition as per agreement is the cause of action which was continuing for an unlimited period by the OP/Respondent herein and the very essence of the cause of action here is the continuing wrong on the part of the OP/respondent and not the continuing assertion of the right of the complainant/appellant.

   Hence, keeping in mind the very purpose of the Consumer Protection Act, a beneficial legislation to protect the interest of the consumers and to protect them from the clutches/traps of unscrupulous businessman/ traders/promoters etc we are of the view that the complainant's prayer for getting relief cannot thrown away on mere technicalities, as it was done in the instant case. Hence, we allow the Appeal, set aside the order impugned being Order no.2 dated 12.3.2019 in CC/123/2019 and direct Id. D.C.D.R. Commission to admit the Petition of complaint and to dispose of the same according to law. Parties do bear their respective costs of appeal.”

6.      Being dissatisfied the impugned order dated 01.02.2022 of the State Commission, the Petitioner/OP filed the present Revision Petition.

7.      In his arguments, the learned Counsel for the Petitioner/OP reiterated the grounds stated in the Revision Petition and emphasized that the conveyance deed was executed on 16.10.2017, and possession of the plot was delivered on the same day. Therefore, if any cause of action existed, it would have arisen by 16.10.2017. He further argued that the complainant filed the complaint after the statutory period of two years, and no application seeking Condonation of Delay was submitted along with the complaint before the District Commission. The Petitioner argued that the complaint was filed three years later, focusing on the demarcation of the plot rather than the delivery of possession. This delay was deemed unreasonable and a mere tactic to harass the Petitioner. He further contended that at the time of the registration of the deed, a site map was annexed with the deed of conveyance, showing the demarcated portion of the plot. The Petitioner contended that since the complainant had already taken possession and the plot was mutated in their name, further demarcation was unnecessary. The Petitioner sought to allow the Revision Petition and set aside the State Commission's order dated 01.02.2022 while upholding the District Forum order dated 12.03.2019.  The Petitioner relied on State Bank of India vs. B.S. Agriculture Industries Ltd., (2009) 5 SCC 121; and Kaushalyabai & Akkabai (Dead) By LRs. Vs. Harishchandra Munnala Gupta, (2009) 5 SCC 129

8.      On the other hand, the learned Counsel for the Respondent/ Complainant argued in favour of the order of the State Commission and contended that non-fulfilment of conditions as per agreement, specifically regarding demarcation of the plot, constituted continuous cause of action. This ongoing failure by OP amounted to continuing wrong. He relied on the judgment of the Hon’ble Supreme Court's in M/s. Samruddhi Cooperative Housing Society Ltd. vs. Mumbai Mahalaxmi Construction Pvt. Ltd., CA No.4000/2019, decided on 11.01.2022. The Respondent sought the dismissal of the Revision Petition with costs, arguing that the Petitioner’s contentions were not legally tenable.

9.      I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by the learned Amicus Curiae for the Petitioner and the learned Counsel for the Respondent.

10.    The sole issue revolves in the present case is whether the non-fulfilment of the conditions as per the agreement, specifically regarding the demarcation of the plot, constituted a continuous cause of action.

11.    Admittedly, the complainants entered into an Agreement on 25.04.2012 to purchase a plot of land measuring 1440 sq. ft. for a consideration of Rs.3,40,000. They initially paid Rs.1,02,000 as earnest money and undertook to pay the balance in 36 monthly instalments. The complainants duly paid the entire consideration as per the terms of the agreement. Subsequently, possession was given to them and Conveyance Deed was executed on 16.10.2015. However, the area of the plot was not properly demarcated, which prevented them from constructing a boundary wall or further development. Despite repeated requests, the OPs failed to fulfil their obligations under the agreement, leading to frustration of purpose. 

12.    The Hon’ble Supreme Court in the case of M/s.Samruddhi Cooperative Housing Society Ltd. Vs. Mumbai Mahalaxmi Construction Pvt. Ltd., 2022 LiveLaw (SC) 36 held as under:

13       In CWT v. Suresh Seth (1981) 2 SCC 790, a two-judge Bench of this Court dealt with the question of whether a default in filing a return under the Wealth Tax Act amounted to a continuing wrong. Justice ES Venkataramia (as the learned Chief Justice then was) observed that:

“11. […] The distinctive nature of a continuing wrong is that the law that is violated makes the wrongdoer continuously liable for penalty. A wrong or default which is complete but whose effect may continue to be felt even after its completion is, however, not a continuing wrong or default. It is reasonable to take the view that the court should not be eager to hold that an act or omission is a continuing wrong or default unless there are words in the statute concerned which make out that such was the intention of the legislature. In the instant case whenever the question of levying penalty arises what has to be first considered is whether the assessee has failed without reasonable cause of file the return as required by law and if it is held that he has failed to do so then penalty has to be levied in accordance with the measure provided in the Act. When the default is the filing of delayed return the penalty may be correlated to the time-lag between the last day for filing it without penalty and the day on which it is filed and the quantum of tax or wealth involved in the case for purposes of determining the quantum of penalty but the default however is only one which takes place on the expiry of the last day for filing the return without penalty and not a continuing one. The default in question does not, however, give rise to a fresh cause of action every day. Explaining the expression “a continuing cause of action” Lord Lindley in Hole v. Chard Union [(1894) 1 Ch D 293 : 63 LJ Ch 469 : 70 LT 52] observed:

“What is a continuing cause of action? Speaking accurately, there is no such thing; but what is called a continuing cause of action is a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought.”

(emphasis supplied)

The Court further provided illustrations of continuous wrongs:

“17. The true principle appears to be that where the wrong complained of is the omission to perform a positive duty requiring a person to do a certain act the test to determine whether such a wrong is a continuing one is whether the duty in question is one which requires him to continue to do that act. Breach of a covenant to keep the premises in good repair, breach of a continuing guarantee, obstruction to a right of way, obstruction to the right of a person to the unobstructed flow of water, refusal by a man to maintain his wife and children whom he is bound to maintain under law and the carrying on of mining operations or the running of a factory without complying with the measures intended for the safety and well-being of workmen may be illustrations of continuing breaches or wrongs giving rise to civil or criminal liability, as the case may be, de die in diem.”

14  In M. Siddiq v. Suresh Das (2020) 1 SCC, a Constitution Bench of this Court (of which one of us (Justice DY Chandrachud) was a part) examined the precedents with regards to a continuing wrong. The Court observed that:

“343. The submission of Nirmohi Akhara is based on the principle of continuing wrong as a defence to a plea of limitation. In assessing the submission, a distinction must be made between the source of a legal injury and the effect of the injury. The source of a legal injury is founded in a breach of an obligation. A continuing wrong arises where there is an obligation imposed by law, agreement or otherwise to continue to act or to desist from acting in a particular manner. The breach of such an obligation extends beyond a single completed act or omission. The breach is of a continuing nature, giving rise to a legal injury which assumes the nature of a continuing wrong. For a continuing wrong to arise, there must in the first place be a wrong which is actionable because in the absence of a wrong, there can be no continuing wrong. It is when there is a wrong that a further line of enquiry of whether there is a continuing wrong would arise. Without a wrong there cannot be a continuing wrong. A wrong postulates a breach of an obligation imposed on an individual, whether positive or negative, to act or desist from acting in a particular manner. The obligation on one individual finds a corresponding reflection of a right which inheres in another. A continuing wrong postulates a breach of a continuing duty or a breach of an obligation which is of a continuing nature. […]

Hence, in evaluating whether there is a continuing wrong within the meaning of Section 23, the mere fact that the effect of the injury caused has continued, is not sufficient to constitute it as a continuing wrong. For instance, when the wrong is complete as a result of the act or omission which is complained of, no continuing wrong arises even though the effect or damage that is sustained may ensue in the future. What makes a wrong, a wrong of a continuing nature is the breach of a duty which has not ceased but which continues to subsist. The breach of such a duty creates a continuing wrong and hence a defence to a plea of limitation.”

(emphasis supplied)

15  A continuing wrong occurs when a party continuously breaches an obligation imposed by law or agreement. Section 3 of the MOFA imposes certain general obligations on a promoter. These obligations inter alia include making disclosures on the nature of title to the land, encumbrances on the land, fixtures, fittings and amenities to be provided, and to not grant possession of a flat until a completion certificate is given by the local authority. The responsibility to obtain the occupancy certificate from the local authority has also been imposed under the agreement to sell between the members of the appellant and the respondent on the latter.

13.    In the case in question, admittedly, the parties entered into an Agreement on 25.04.2012 to purchase a 1440 sq. ft. plot for a consideration of Rs.3,40,000. It is undisputed that the entire consideration was already paid, possession was given and the Conveyance Deed was also executed on 16.10.2015. However, in the absence of the area of the plot being not properly demarcated, the Complainants are aggrieved as they are prevented from making use of the property purchased. The limited scope of the complaint is to merely demarcate the property, the possession of which was transferred by the OP to the Complainants. Considering the facts and circumstances of the case and the observations of the Hon’ble Supreme Court in the case of M/s. Samruddhi Cooperative Housing Society Ltd. (supra), I am of the considered view that the failure of the Petitioner/OP to demarcate the plot of land after receiving the full consideration constitutes a continuing wrong.

14.    Based on the deliberations above, I do not find any reason to interfere with the detailed and well-reasoned findings and order of the learned State Commission dated 01.02.2022. The instant Revision Petition No.789 of 2022 is, therefore, dismissed.

15.    All parties are directed to appear before the learned District Forum on 30.10.2024 and the learned District Forum is requested to dispose of the complaint preferably within a period of four months.

16.    All pending Applications, if any, also stand disposed of accordingly.