MANJU KOTHARI vs DILIP SIKDAR

THIS appeal is directed against the order dated 17.2.2004 passed by the Howrah District Consumer Forum in HDF Case No. dismissing a complaint filed by Smt. Manju Kothari, the present appellant summarily without admitting the same on the ''ground that the same was hopelessly barred by limitation under Section 24(A) of the Consumer Protection Act, 1986 and also in view of the provision of Section 12(3) thereof.

THE relevant facts leading to the filing of this appeal may be summarised as follows. The case of the complainant was that on 7.8.1998 she entered into a verbal agreement with the O.P. No. 1 (the present respondent No. 1) for purchasing a flat being Holding No. 94, Salkia School Road, District Howrah at a total consideration of Rs. 4,33,100/-. Thereafter the complainant paid the price in full to the O.Ps. and the O.Ps. delivered possession of the flat in her favour also on 29.11.1998. But they did not execute and register a deed of conveyance and gave her to understand that they would do it shortly. But they actually went on avoiding doing this job. Then in the 1st week of February, 2002 the complainant again requested them to No. 1 agreed and as per his advice the complainant purchased Stamp Paper amounting to Rs. 25,000/- on 11.2.2002. A draft deed of conveyance was also prepared and the O.P. No. 1 approved of the same but ultimately he did not execute or register the same. Then the complainant was compelled to serve Advocate''s letter upon the O.Ps. by registered post with A/D. But the O.Ps. refused to accept the same. Hence the complainant filed the case before the District Forum praying for an order directing the O.Ps. to execute and register the deed of sale and also for other reliefs as admissible under the law.

But this complaint was not admitted by the Forum and it has passed the impugned order summarily dismissing it on the ground that it was time barred. In the body of the judgment the Forum has given the reason as follows.

UNDER section 24(A) of the Consumer Protection Act, 1986 a complaint is to be filed within two years from the date when the cause of action arises. In the present case, according to the Forum, the cause of action arose on 29.11.1998 when the O.Ps. delivered possession of the disputed flat in favour of the complainant. Therefore, the complaint ought to have been filed by 29.11.2000, but actually it was filed on 9.2.2004 i.e., after more than 5 years from the date on which the cause of action arose. Accordingly, the Forum took the view that the case was hopelessly barred by limitation no explanantion for less satisfactory, having been assigned by the complainant for filing the complaint was belatedly. In coming to such a conclusion the Forum considered certain decisions as referred to by the complainant namely 1997 WBLR (CPSC) 21 (WBSCDRC) : 2000 WBLR (SC) 150 : 2000 WBLR (SC) 253 and 2002 WBLR (CAL) 109 (Calcutta High Court in its Circuit Bench at Port Blair). But the Forum found all these decisions inapplicable to the facts of the present case. Being aggrieved by this order of the Forum the complainant has preferred the present appeal challenging the order as illegal, unjust and erroneous and liable to be set aside. The question is, therefore, whether the impugned order of the Forum suffers from any infirmity. In our opinion the error of the Forum lies in its assuming that the cause of action arose on 29.11.1998 when the O.Ps. delivered possession of the Flat in dispute in his favour. As per the terms of the contract the O.Ps. were to execute and register a deed of transfer. If such a deed is not registered in his favour even after he has pid the full consideration money amounting to more than 4 lakhs, then, everything is meaningless and is set at naught. It will be travesty of justice if such a legitimate and justified claim of the complainant is thrown aside on a purely technical ground. In AIR 1987 SC 1353, where the Trial Court refused to condone delay, it was held that it was not the intention of the law makers that and otherwise meritorious matter should be thrown out at the threshold.

WE are to hold that the Forum totally misdirected itself by holding that the cause of action arose on 29.11.1998, when the possession of the Flat was delivered in her favour and hence the complaint ought to have been filed by 29.11.2000. This view of the Forum is mistaken. Because, in such a case the cause of action cannot be stationary, but on the other hand it should be taken as a continuing concept. In an earlier unreported judgment of this Commission dated 21.9.2004 in S.C. Case No. 89/A/2004 we have held as follows. "It is now a well-settled position regarding the Law of Limitation that in a case like this the concept of cause of action is to be treated as a continuing one. This will be more so in this particular case where the execution and registration of a deed of conveyance is the corner stone of the agreement between the parties and in the absence of this execution and registration of a deed the fact of possession of the flat by the complainant is totally without any meaning and significance. Therefore, so long as the opposite party does not discharge this basic obligation of his under the contract after receiving the entire consideration money from the complainant, the cause of action continues. It will be a mockery of justice if after realising the full consideration money from the complainant the O.Ps. refuse to execute and register the sale deed in respect of the disputed flat in her favour and succeeds by raising such a false plea of limitation. So here there is no question of the date of cause of action remaining fixed and consequently there is no question of the limitation cropping up". Therefore, we do not accept the impugned order of the Forum as correct. The complaint was not at all barred by limitation as the cause of action was continuing till the execution and registration of the deed was done. Hence in the result, the appeal is allowed. The judgment and order passed by the Forum be set aside. The case is sent back on remand with a direction that the Forum shall take up the question of admissibility of the appeal and proceed in accordance with law. Appeal allowed.