S RAVI KUMAR vs Kavisha Fine Homes Pvt Ltd

THIS First Appeal under Section 19 of the Consumer Protection Act, 1986 (for short ''the Act'') by the Complainant, calls in question the correctness and legality of order dated 15th May 2010 passed by the Consumer Disputes Redressal Commission, Maharashtra at Mumbai (for short ''the State Commission'') in Consumer Complaint no.131 of 2003. By the said order, the State Commission has dismissed the Complaint filed by the Appellant, inter alia, praying for award of compensation amounting to Rs.20,77,000/ - towards expenses, loss etc. caused to him due to deficiency in service on the part of the Respondent in delivering possession of a row house with certain defects and lack of amenities.

BRIEFLY stated, the facts material for deciding the controversy at hand, are that the Complainant had booked a row house in the Scheme floated by the Respondent, known as "Manas Sarovar'' at Village Dhairy, Pune. The total sale consideration agreed to in terms of the Agreement for Sale dated 21.06.1997 was Rs.6,12,500/ -. The possession of the house was to be delivered within 24 months of the said Agreement. According to the Complainant, he had paid total sum of Rs.7,38,000/ - to the Respondent from time to time and the possession of the house was delivered in May 1999 but it was not complete as there were several defects, as enumerated in the body of the Complaint. Alleging deficiency in service on the part of the Respondent in not rectifying these defects despite several requests, on 04.04.2003 the Complainant filed the Complaint, praying for the aforenoted compensation.

THE Complaint was resisted by the Respondent on diverse grounds. One of the preliminary objections raised was that it was barred by limitation, inasmuch as the possession of the house in question having been delivered in the year 1999 the Complaint filed in the year 2003 was beyond the stipulated period of two years from the date of accrual of cause of action. Accepting the stand of the Respondent, as noted above, the State Commission has dismissed the Complaint observing thus: "6. We are finding that the complainant had taken possession of row house in May -1999 and filing consumer complaint in 2003 is certainly not within two years from the date of taking possession of row house. The complaint on the whole is absolutely barred by limitation and since it is his assertive statement that he has filed complaint in time and is not barred by limitation his appendage in para 13 of the complaint that delay if any should be condoned, is meaningless. Thus, the complaint filed by the complainant is absolutely barred by limitation and on this count alone the complaint is required to be dismissed."

HENCE , the present Appeal.

WE have heard learned Counsel for the Parties.

LEARNED Counsel appearing for the Appellant, while admitting that the possession of the house in question was delivered to the Complainant in the year 1999, asserts that it suffered from several defects and was not fit for habitation. In order to buttress the argument that the Respondent was fully aware of the defects and deficiencies in the house, learned Counsel has referred us to letter dated 28.05.2001, addressed by the Respondent to the Complainant calling upon him to pay the installment due in respect of the subject house as, according to the Respondent, his row house was ready for occupation. It was also stated that they were getting the Occupation Certificate issued in the near future. Learned Counsel has also invited our attention to yet another letter, dated 16th February 2004, whereby the Complainant was informed that the Company had authorized one of its officers to complete all the works and procedures/compliance regarding completion of the incomplete work of construction of the row house and provision for amenities and utilities as statutorily required as well as to recover the amount due from the buyers etc. According to the learned Counsel, the said communication clearly shows that when the possession of the house was taken by the Petitioner, it was not complete in every respect.

PER contra, learned Counsel appearing for the Respondent, while supporting the impugned order has submitted that the said two letters were written in routine to all the allottees of row houses and, therefore, these cannot be used to plead that cause of action continued even after the delivery of possession of the house in the year 1999.

HAVING carefully perused the documents on record, we are of the opinion that the State Commission erred in dismissing the Complaint on the ground of limitation. It is clear from the documents on record, in particular, the aforenoted two letters that the house in question had some defects to the knowledge of the Respondent or some formalities, as complained of, were required to be completed. Obviously, till all the defects had been cured, as was undertaken by the Respondent in its correspondence with the Appellant, the cause of action continued to accrue. Thus, the Complaint filed within two years of Respondent''s letter dated 28.05.2001 was not barred by limitation.

CONSEQUENTLY , we allow the Appeal; set aside the impugned order and restore the Complaint to the Board of the State Commission for fresh adjudication on the merits. Since the Complaint had been dismissed only on the ground of limitation, it will be open to the Parties to raise all the issues, as may arise from their respective pleadings. The Appeal stands disposed of in the above terms with no order as to costs.

SINCE the Complaint was filed as far back as in the year 2003, we request the State Commission to try to dispose it as expeditiously as practicable.

PARTIERS /their authorized representatives are directed to appear before the State Commission on 28.04.2015 for further proceedings.