SHYAMAL KUMAR GHOSH, MEMBER

1. The instant consumer complaint has been filed by the complainants on 10/02/2023 against the opposite parties praying for certain reliefs clearly enumerated in the prayer portion of the said petition of complaint.
2. The brief fact of the case is that the opposite party no-1/developer is the director of the company. The opposite party no-2 is the absolute owner of the premises. Being the intending purchasers the complainants approached the opposite party no-1 for purchasing one self contained residential flat. The development work has been started by the developer/opposite party no-1. The residential flat has been approved by the IDBI bank Ltd in order to provide the home loan to the complainants. The booking/advance amount of Rs.1,03,090/- has already been disbursed. The amount of Rs.9,93,375/- has been required to be disbursed during the execution of the Agreement for Sale. Be it mentioned here that an agreement for sale dated 30/01/2013 has been executed by and between the parties and the total consideration amount of Rs.66,22,500/-  has been fixed. Out of total consideration amount, the complainants have already paid Rs.60,31,410/- including ancillary charges to the op no-1.
3. That the further complaint case is that the opposite party has failed to deliver the peaceful possession of the flat in question to the complainants within March, 2016. The opposite party no-1 has further demanded Rs.50,000/- and to that effect the complainants have already paid the said sum of Rs.50,000/- to the op  no-1 by way of cash other than the amount of Rs.16,556/-. Till date the op no-1 has failed to complete the flat in question within the stipulated period of March, 2016. The complainants have visited the office of the op no-1 with a prayer for cancellation of the said agreement dated 30/01/2013 or refund of the deposited amount already paid to the op no-1 along with interest. But the op no-1 has failed to  pay any heed in this matter. There is clear gross negligence and deficiency in service on the part of the ops. Till date no amount of Rs.60,31,410/- has been refunded by the op no-1. A legal notice dated 05/01/2023 to that effect has been sent to the op no-1. Further on 11/01/2023 another legal notice has been sent to the op no-2, land owner, but the same has been returned as unclaimed. Lastly on 03/02/2023 a written complaint has been lodged against the op no-1 before the Officer-in Charge, Shyampukur Police Station. But the said police concerned has stated that the matter has been clearly related with the civil dispute and as such they have failed to take necessary action against the op no-1 herein. Having no other alternative the complainants have rushed to the Commission for getting proper relief as prayed for.      
4. The ld counsel appearing for the complainants has argued that despite receiving the lion share of amount from the end of the complainants,   the op no-1 has failed to deliver the peaceful vacant possession of the flat in question measuring area 1405 sft of super built up area along with care parking space to the complainants till date. Ld counsel has further stated that the cause of action has been arisen first time on 11/11/2012 when the application for allotment of apartment has been made in favour of the complainants. Thereafter, it has been arisen on 30/01/2013, on 03/08/2022, 21/09/2022, 23/09/2022 and lastly on 05/01/2023. It is further submitted that the continuous cause of action is going on and till date the ops have kept mum. There is a clear gross negligence and deficiency in service on the part of the ops and accordingly the ld counsel has prayed for certain reliefs against the ops clearly enumerated in the prayer portion of the petition of the complaint.
5. The record has been taken up for admission hearing.
6. We have heard the ld counsel appearing for the complainants at length and in full.
7. We have considered the submissions of the ld counsel.
8. We have perused the materials available on the record.
9. It is admitted that the agreement has been executed between the parties on 30/01/2013 regarding construction of apartment and the intending purchasers shall be entitled to approach the developer for purchasing a residential flat along with car parking space. The said agreement reveals that the total consideration amount of Rs.66,22,500/- has been fixed for payment. The various receipts kept in the record clearly indicate that the complainants, already on the various dates, have  paid the lion share amount out of total consideration amount mentioned earlier.
10. The paragraph no-16 of the petition of complaint clearly indicates that the complainants have been asked to wait till March 2016 but the said apartment has not been completed well within the stipulated period of time i.e. within March 2016. So, in pursuant to the said averment the cause of action would be started on and from April 2016 when the op-1 has failed to deliver the aforementioned flat to the complainant and as per section 69 of the Consumer Protection Act, 2019 the petition of complaint should be filed within March 2018. But the record reveals that the instant petition of complaint has been filed on 10/02/2023 i.e. after expiry of near about 5 years (approx). In this respect, it should be  pertinent to read out this particular section carefully in order to reach the final conclusion. Section 69(1) of the said Act runs as follows:-

“The District Commission, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

Section 69(2) of the said Act runs as follows:-

Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section(1), if the complainant satisfies the District Commission, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period,

Provided that no such complaint shall be entertained unless the District Commission or the State Commission or the National Commission, as the case may be, records its reasons for condoning such delay.”

11. From the four corners of the record it is very clear to us that no petition for condonation of delay has been filed at the behest of the complainants at the time of filing of the said petition of complaint.
12. Ld counsel further argued that the various representations dated 21/09/2022, 23/09/2022, 05/01/2023, 03/02/2023 etc are to be treated as continuous/repeated cause of action but it is the settled principle of law that the mere serving the various letters/representations do not constitute the repeated/continuous cause of action. In this regard, we can safely rely upon the decision STATE OF TRIPURA AND OTHERS VS ARABINDA CHAKRABORTY AND OTHERS REPORTED IN (2014) 6 SCC 460 wherein the Hon’ble Apex Court held that in our opinion, the suit was hopelessly barred by Law of Limitations. Simply by making a representation, when there is no statutory provision or there is no statutory appeal provided, the period of limitation would not get extended. The law does not permit extension of period of limitation by mere filing of a representation. A person may go on making representations for years and in such an event the period of limitation would not commence from the date on which the last representation is decided………..”

The HON’BLE NATIONAL COMMISSION IN MAHESH NENSI SHAH VS ORIENTAL INSURANCE CO. LTD. REPORTED AT lll (2006) CPJ 414 (NC) held that “no amount of correspondence between the parties can extend the period of limitation.”

13. Considering the all aspects from all angles and keeping in mind the present position of law and regard being had to the aforementioned citations of Hon’ble Apex Court as well as Hon’ble NCDRC, we are of firm view that the present petition of complaint  is  hopelessly barred by limitation and as such  we are constraint to dismiss the instant consumer case  at the admission stage without any order as to costs.
14. The instant petition of complaint stands disposed of.
15. The complainants are at liberty to file the same before the appropriate Forum within one month from the date of passing of the order.
16. Note accordingly.