SHYAMAL KUMAR GHOSH, MEMBER

The instant interlocutory application has been filed by the opposite parties praying for dismissal of the petition of complaint with costs on the ground of non-maintainability.

The instant interlocutory application has been taken up for hearing in presence of both sides.

The ld advocate appearing for the opposite parties has argued that the instant consumer case is hopelessly barred by law of limitation under section 69 of the Consumer Protection Act, 2019. More over there was no such continuous representation between the parties so that the matter would get the extension and establish continuous of cause of action. The ld advocate has further submitted that the agreement for sale has been executed by and between the parties on 9^th October 2015. The possession was supposed to be handed over to the complainant by March 2018. The last payment has been done on 30^th November 2017. No correspondence has been made thereafter between the parties. Already the considerable period of 6 years has already been elapsed. Under such circumstances, the matter is ultimately coming under the purview of the principle of barred by law of limitation. To that effect the ld advocate has submitted a decision of co-ordinate bench of this Commission.   Accordingly the ld advocate has prayed for dismissal of the petition of complaint with exemplary costs.

Ld advocate appearing for the complainant has already submitted written objection against the aforesaid interlocutory application and has argued that it is settled principle of law that the District Commission, the State commission and the National Commission shall not admit the petition of complaint unless it is filed within two years from the date of cause of action. In the instant case the agreement for sale has been executed on 9^th October 2015. The last payment has been done on 30^th November 2017. The opposite party/developer has promised to hand over the flat within March 2018 as per aforesaid agreement. But it is very unfortunate that the opposite parties have failed to deliver the possession the flat in question till date. Having no other alternative the complainant was bound to file the consumer case against the opposite parties praying for refund of consideration amount already paid along with interest, compensation, costs etc. ld advocate has further submitted that non-delivery of the flat in question to the complainant certainly constitutes continuous cause of action and accordingly the plea of hopelessly barred by law of limitation taken by the opposite parties has no leg to stand upon.

At the time of hearing ld advocate appearing for the complainant has submitted a case law/citation viz MEHNGA SINGH KHERA AND OTHERS VS UNITECH LTD reported at I (2020) CPJ 93 (NC) wherein the Hon’ble NCDRC has been pleased to hold as under:-

‘It is settled legal proposition that failure to give possession of flat is continuous wrong and constitutes a recurrent cause of action as long as the possession is not delivered to the buyers, they have every cause, grievance and right to approach the consumer courts.’

Accordingly the ld advocate appearing for the complainant has prayed for dismissal of the instant interlocutory application filed by the ops with exemplary costs.

We have heard the ld advocates appearing for both parties at length and in full.

We have meticulously perused all materials available on the record.

We have considered the submissions of the both parties.

The hearing on the point of maintainability has been concluded.

Having heard the ld advocates for the both sides and upon careful perusal of the record we feel that at this juncture only one moot question has been arisen as to whether the aforesaid consumer case is hopeless barred by limitation or not that should be decided by this Commission.

The fact remains that one agreement for sale has been executed by and between the parties on 9^th October 2015 in respect of purchasing one self contained residential flat in question and the said flat was supposed to be delivered to the complainant within March 2018. The last payment was done on 30^th November 2017. Within the time framed as per aforesaid agreement the developer/ops have failed to deliver the same to the complainant till date and ultimately the complainants have realised that there was no chance to get the flat in question and having no other alternatives both the complainants have come before this Commission praying for refund of the consideration amount along with interest, cost and compensation which causing clear case of continuous and repeated cause of action.

Lord Lindley in Hold vs Chard Union (1984) 1 Ch D 293:63 L J Ch 469 : 70 LT 52 observed that the 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.

Section 69 of the Consumer Protection Act, 2019 provides for the period of limitation in respect of filing the petition of complaint. The petition of complaint should be filed within 2 years from the date of cause of action. In this respect, it is our view that since the cause of action is founded on a continuing wrong, the petition of complaint is within limitation. In case of continuing breach of contract or tort the computation of limitation is going on. It provides that in case of a continuing breach of contract, a fresh period of limitation begins to run at every moment of time during which the breach continues which is reported in AIR 1959 SC 798 and in this respect there are plethora of judgments passed by the Hon’ble Supreme court and Hon’ble NCDRC. We try to cite the same as under in support of above views taken by this Commission:

1. In Samruddhi Co Operative Housing vs Mumbai Mahalaxmi Construction reported in 2022 SCC online SC 35 wherein the Hon’ble Apex Court has been pleased to hold that a continuing wrong occurs when a party continuously breaches an obligation imposed by law or agreement. The failure to obtain an occupancy certificate or abide by contractual obligations amounts to a deficiency in service for which the respondent is liable.
2. In Rajubhai Tank, Director of Odhav Hari Developers Pvt Ltd & Ors vs Bindraben Bharatkumar Mavani (Minor) through her Natural Gurdian & Anr reported in 2014(2) CPR 32 (NC), wherein the Hon’ble NCDRC has been pleased to hold that cause of action is continuous and unless and until possession and sale deed are not executed.
3. Shri Satish Kumar Pandey and Anr vs M/S Unitech Ltd through its Managing Director reported in 2015 (2) CPR 709 (NC) wherein Hon’ble NCDRC held that failure to deliver possession being a continuous wrong it constitutes a recurrent cause of action.
4. In M/S – Vyas Enterprise through its proprietor, sh Mahendra Jayantilal Vyas vs Das Darshan Co-operative Housing Society Ltd reported in 2014(3)CPR 196 (NC) wherein the hon’ble NCDRC has been pleased to hold that when there is immovable property and amenities promised by the opposite party were not provided, it can be construed as continuing cause of action and it cannot be said to be barred by time.

Citation of the co-ordinate bench of this Commission filed by the opposite parties should not be accepted in order to decide the actual proposition of law.

Keeping in view of the above observations and for finality of the litigation and regard being had to the citations of the Hon’ble Supreme Court and Hon’ble NCDRC we are constrained to dismiss the instant interlocutory application on contest without any order as to costs.   

The interlocutory application being No. IA/447/2023 stands disposed of.

Note accordingly.

It appears from the record that the evidence on affidavit has already been filed on 24.08.2023 . So the next date shall be fixed for filing questionnaire by the  OP No. 2 only.

Fix 17.01.2024 for filing questionnaire by the OP No. 2.

The case will proceed exparte against the OPs No. 1 & 3.