Saroj Kumar Chawla vs Sethya Builders

THIS Appeal has been preferred against the order dated 08.10.2013 of the State Consumer Disputes Redressal Commission Punjab, Chandigarh which has dismissed the Consumer Complaint No. 71 of 2011 on the ground of limitation observing that the cause of action accrued to the Complainant for the first time in the year 2007 but she filed the complaint only in the year 2011 and is clearly barred by time.

THE brief facts as set out in the complaint are that the Complainant booked flat no. 7 in Angel Apartments on 05.09.2007 and the Opposite Party executed the sale deed after receiving full and final payment. It is the case of the complainant that she shifted to her flat on 23.09.2007 and thereafter observed that the flat was in an incomplete state with no security railing given around the parking area, uncovered water tanks which were constructed right on the passage to the flat and the parking area, water logging because of seepage of water to the underground water tank, non -closure of the temporary bore. It is also the Appellant''s case that the Opposite Party charged an amount of Rs. 5,00,000/ - promising benefit of access to the flat from the front as well as the back side and also assured car parking on the road outside the back gate which has not been provided. The Complainant also filed photographs and relies on them to prove that the material used for construction was of sub -standard quality.

INSPITE of repeated requests, the Opposite Party has not taken any steps to rectify these defects and a registered notice was sent on 05.05.2008. Hence, the Complaint sought direction to the Respondent to pay damages to the tune of Rs. 15 lakhs for the deficiencies in the construction material; Rs. 10 lakhs for not covering the underground water tanks; refund of Rs. 4.38 lakhs with 12% interest per annum for not providing access to the flat from back side; refund of Rs. 62,000/ - with interest which was charged as service tax and damages of Rs. 10 lakhs for mental agony and Rs. 22,000/ - as cost. The Respondent filed written version before the State Commission.

ADMITTING that flat No. 7 was purchased by the Appellant herein, the Respondent submitted that no extra amount was charged from the Appellant and no promise was made to provide a second car parking and access from the back side. Even the brochure does not mention the provision of second car parking. Covers on the water tank are of standard quality and water logging of drainage system has to be maintained at regular intervals by the Residence Society and not by the Respondent herein and further submitted that the bore well was kept open and in running condition and was handed over to the Appellant without any extra cost. Respondent denied that the quality of material was sub -standard and stated that the quality could only be certified by an expert from any testing laboratory and that to maintain good relations all problems have been rectified. Respondent admitted receipt of legal notice and submitted that their reply was un -claimed.

THE State Commission relied on the Judgment of this Commission between Prabin Guptey and Associates vs. Niketa Park Apartments Condominium and Ors., 2011 3 ConLT 52 wherein this Commission has observed that the possession of the dwelling unit was handed over in the year 1988 -89 and two years from that date, the limitation has ended i.e. in 1991. The State Commission held that the cause of action arose in 2007 when the Appellant had taken possession and occupied it and noticed all the defects but filed the complaint only in 2011 and therefore, it was barred by limitation.

AGGRIEVED by the said order, the Complainant has preferred this Appeal stating that the Appellant shifted to her flat on 23.09.2007 and that the sale deed was executed in his favour on 5.9.2007. It is the Appellant''s case that there were lot of incomplete works and on 05.05.2008 a legal notice was sent after which the Respondent got a few defects rectified and promised to get others also done within a period of six months. On 15.02.2011, the Appellant sent another notice to the Respondent which returned with an endorsement ''office closed''. The learned counsel for the Appellant submitted that it is a case of continuing cause of action as the defects were not removed by the Respondent. The learned counsel for the Appellant also drew our attention to the photographs which the Appellant relied on as proof of defective construction.

THE Counsel for the Respondent contended that all repairs were done and that the complaint is time barred. He further submitted that the said photographs do not depict any date or that they are of the subject flat and cannot, therefore, be construed as evidence.

WE are of the view that when possession was taken by the Appellant way back on 23.09.2007, there are no cogent reasons given by the Appellant for filing the complaint on 19.9.2011 beyond the limitation period. There are no dates mentioned by the Appellant and no evidence adduced as to when the Respondent had completed the initial works and the nature of the pending works to necessitate any fresh cause of action. The Appellant has also not stated any substantial reasons for the period to be construed as continuing cause of action when the record does not show the exact dates and nature of repairs. The Architects report filed by the Appellant is un -dated and does not state when the premises was inspected. In the instant case we place reliance on the decision of the Apex Court in V.N. Shrikhande (Dr.) vs. Anita Sena Fernandes, 2011 1 SCC 53, in which the Hon''ble Supreme Court laid down that the Consumer Forums have no option but to dismiss a complaint where complaint is beyond the limitation period and application for condonation of delay is also not filed under Section 24 -A(2). The Appellant herein did not file any application for condonation of delay. There is also no prayer for issuance of a completion certificate and we hold that the cause of action cannot be construed to be continuing till September 2011, when the Complaint was filed.

TAKING into consideration the afore -mentioned facts and circumstances, the State Commission has rightly dismissed the Appeal on the ground of limitation. We do not see any jurisdictional error or infirmity in the order of the State Commission and hence, this Appeal must fail. It is dismissed accordingly. No order as to costs.