Chandigarh

StateCommission

A/249/2023

MR. SANJEEV KUMAR GUPTA - Complainant(s)

Versus

SILVERCITY HOUSING & INFRASTRUCTURE LTD - Opp.Party(s)

PANKAJ CHANDGOTHIA

07 May 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1. Mr.Sanjeev Kumar Gupta s/o Girdhari Lal Gupta,
2. Mrs.Anubhuti Gupta w/o Sh.Sanjeev Kumar Gupta,

Both residents of:

Flat No.168D/B7, Silver City Themes, Industrial Focal Point, Derabassi.

                                                                    …... Appellants /Complainants

                                               Versus

1. Silvercity Housing & Infrastructure Ltd. Regd. Office: House No.89, Sector 8-A, Chandigarh through its C.M.D.
2. Silvercity Housing & Infrastructure Ltd. Site Office, Silver City Themes, Village Bhankarpur, M.C. Derabassi, District Mohali, through its Site Manager.
3. M/s Silvercity Infra Maintenance, Plot No.101 A, Silver City, Zirakpur, Distt. Mohali, through its Manager.
4. Shital Singh Bains, CMD, Silvercity Housing & Infrastructure, Ltd. Regd. Office: House No.89, Sector 8-A, Chandigarh.
5. The Residents Welfare Association Silver City Themes, Silver City Themes, Village Bhankarpur, M.C. Derabassi, District Mohali, through its Secretary.

                                                        …..Respondents/Opposite Parties

BEFORE:             JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MR. RAJESH K. ARYA, MEMBER

ARGUED BY:

Sh. Pankaj Chandgothia, Advocate for the appellants

Sh. Ramnik Vasudeva, Advocate for respondents No.1 to 4 – on V.C.

Respondent No.5 exparte vide order dated 07.11.2023.

PER RAJESH K. ARYA, MEMBER.

                   The complainants have assailed the order dated 02.08.2023 passed by the District Consumer Disputes Redressal Commission-II, U.T., Chandigarh (in short the District Commission), vide which the consumer complaint bearing No.519 of 2019 filed by them has been dismissed by it holding that the complainants took possession of the flat on 03.04.2016, their period of limitation expired on 02.04.2018, after the date of arisen of cause of action on 03.04.2016, meaning thereby that the District Commission dismissed the complaint being barred by limitation

2.           It was the case of the appellants before the District Commission that the project was started in the year 2003-2004 and still after 14 years, the project was not complete as no completion or occupation certificate has been issued to the builder for the said project by any competent authority. It was further stated that partial completion certificate cannot in any manner be considered to be fulfillment of the terms and conditions and clauses of PAPRA Act. As per the complainant, despite payment of 100% amount towards the amenities promised, the same has not been provided as on date. Before us, it has been argued by the Counsel for the appellants that since the respondents/opposite parties have not got the completion or occupation certificate of the building till date therefore, it is a case of continuing cause of action and the bar of limitation does not come into play.
3.             On the other hand, on behalf of Counsel for the respondents No.1 to 4, it has been submitted that the respondents are very much in possession of partial completion certificate and since the appellants have already taken possession of their flat way back on 09.10.2014 and did not point out any deficiencies for almost five years, their complaint has rightly been dismissed by the District Commission being by time barred.
4.            We have heard the counsel for the contesting parties and carefully gone through the material available on the record.
5.            The short question which falls for consideration before this Commission is, as to whether, the District Commission could dismiss the complaint on the ground of limitation when the appellants/complainants have categorically averred that the respondents/opposite parties are not having any completion or occupation certificate of the building till date. Our answer to this question is in the negative. It may be stated here that the Hon’ble Supreme Court in the case titled as Samruddhi Coop. Housing Society Ltd. v. Mumbai Mahalaxmi Construction (P) Ltd., , has held that continuous failure to obtain occupancy certificate is continuing wrong, therefore, complaint cannot be said to be barred by limitation. Relevant part of the said order is reproduced hereunder:-

“………Based on these provisions, it is evident that there was an obligation on the respondent to provide the occupancy certificate and pay for the relevant charges till the certificate has been provided. The respondent has time and again failed to provide the occupancy certificate to the appellant society. For this reason, a complaint was instituted in 1998 by the appellant against the respondent. The NCDRC on 20 August 2014 directed the respondent to obtain the certificate within a period of four months. Further, the NCDRC also imposed a penalty for any the delay in obtaining the occupancy certificate beyond these 4 months. Since 2014 till date, the respondent has failed to provide the occupancy certificate. Owing to the failure of the respondent to obtain the certificate, there has been a direct impact on the members of the appellant in terms of the payment of higher taxes and water charges to the municipal authority. This continuous failure to obtain an occupancy certificate is a breach of the obligations imposed on the respondent under the MOFA and amounts to a continuing wrong. The appellants therefore, are entitled to damages arising out of this continuing wrong and their complaint is not barred by limitation.………”

                    Not only as above, this plea taken by the opposite parties is also devoid of merit, in view of principle of law laid down by the Hon’ble Supreme Court in the case of Debashis Sinha v/s M/S R.N.R Enterprise, Civil Appeal No.3343 of 2020 February 9, 2023, wherein it was held that the mere fact that possession has been taken over by the consumer and sale deed has been registered, cannot forfeit his/her right to claim the services promised by the project proponent.

6.          In this view of the matter, the District Commission erred in dismissing the consumer complaint filed by the appellants on the point of limitation, which it should have decided on merits and after going through the documentary evidence on record. Thus, in view of peculiar facts and circumstances of this case, it can easily be said that there was a continuing cause of action in favour of the complainants/appellants and the consumer complaint having been filed on 06.06.2019 is well within limitation, as there is a continuing cause of action in favour of the appellants. The District Commission thus fell into an error by dismissing the complaint on the ground that it is beyond limitation, by holding to the contrary.
7.            Resultantly, this appeal stands allowed and the order impugned is set aside. Consequently, this case is remanded back to the District Commission-II, U.T., Chandigarh with the direction to decide it afresh on merits.
8.           However, it is made clear that this order passed will not have any bearing on the merits of the case at the time of considering  and  deciding the  consumer complaint by the District Commission, afresh, on merits, after giving due opportunities to the parties, as per law. Accordingly, the parties are directed to appear before the District Commission on 17.05.2024. 
9.          Certified copies of this order be sent to the parties, free of charge.
10.          The appeal file be consigned to Record Room after completion.
11.          Record of the District Commission concerned alongwith certified copy of this order be sent back immediately, so as to reach there well before the date fixed.

Pronounced

07.05.2024

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

(RAJESH K. ARYA)

MEMBER

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