First Appeal Nos.373 of 2011,First Appeal Nos.374 of 2011,First Appeal Nos.375 of 2011

30th April, 2012

Petitioner Counsel: Mr. S.B. PRABHAWALKAR
Respondent Counsel: Mr. U.B. WAVIKAR

Cases Cited:
Lata Construction and others Vs. Dr. Rameshchandra Ramniklal Shah & Another, III (1999) CPJ 46 (SC) [Para 7]
Paranjape Construction Co. Vs. Nilesh Ram Marathe, 2001(3) ALL MR (JOURNAL) 1 [Para 8]
Sri Hanuman Sahkari Avas Samiti Ltd. Vs. Smt. Anandi Choudhary, 1986-2006 CONSUMER 10791 (NS) [Para 9]

JUDGMENT

Mr. P.N.KASHALKAR, Hon'ble Presiding Judicial Member :- Being aggrieved by the common judgement and award passed by District Consumer Disputes Redressal Forum, Mumbai Suburban in consumer complaint nos.310/2007, 311/2007 & 312/2007 decided on 06/09/2010, whereby original opponent -M/s.Sheth Developers Ltd. had been directed to execute Agreement of sale in favour of all the three complainants and then to give possession of flat after entering into Agreement of sale and after receipt of payment from the complainants as per Agreement of sale. Not satisfied with the order passed, original opponent M/s.Sheth Developers Ltd. have filed this appeal. These three appeals are arising out of same common award passed by District Consumer Disputes Redressal Forum, Mumbai Suburban and same has been challenged by filing three appeals which we heard together and we are going to dispose of these three appeals by this common judgement.

2. We heard submissions of Advocate Mr.S.B.Prabhawalkar for the appellant and Mr.U.B.Wavikar-Advocate for the respondents. Facts to the extent material may be stated as under:-

3. Complainant in one complaint was Mrs.Sunita Bharat Salunkhe. She was complainant in complaint no.310/2007. She had booked the flat no.501 and deposited an earnest amount of '65,500/- on 01/01/2003. Another complainant was Mrs.Vindhya Ramesh. She filed consumer complaint no.311/2007. She had booked flat no.D-301. She deposited '65,000/- as earnest amount by making part payment on 04/04/2003 and 07/04/2003. Third complainant was Mrs.Vasumathi Krishnan. She filed consumer complaint no.312/2007. She had booked flat no.A-504. She paid total amount of '97,000/- on two dates i.e. on 06/12/2002 and 13/01/2003, but despite payment made the opponents failed to execute Agreement of sale and opponent failed to deliver the flats. In fact, on one day he had even audacity to send cancellation letter of agreement. Thereafter, complainant approached the District Consumer Disputes Redressal Forum by filing three complaints and they prayed that opponent should be directed to execute Agreement of sale in their favour and the same should be registered and on accepting remaining consideration amount, opponent should be directed to hand over possession of the flats.

4. Opponent contested the complaints by filing written version. The opponent took up the stand that said amount was accepted by the opponent under provisional receipts as deposit. He had floated a project and complainants approached him. They showed interest in the project to purchase flats. They were explained by the opponent that since plan was not sanctioned and requisite permission was not obtained, booking of the flats was not started but still complainants were hell-bent to book the flats in their project and insisted to receive certain amounts and, therefore, builder/developer acceded to the request of the complainants and accepted the amounts towards deposits and passed receipts to that effect. But according to M/s.Sheth Developers Ltd. there was no concluded contract with any of the complainants in respect of any of the flats. According to opponent even on the date of filing of the written version, commencement certificate had not been issued by Municipal Corporation of Greater Mumbai and, therefore, project could not be commenced and, therefore, he had decided to refund the amount of deposits kept by the complainants. Opponent therefore denied the allegation that they were guilty of deficiency in service or unfair trade practice and prayed that complaints should be dismissed with costs.

5. District Consumer Disputes Redressal Forum on considering the affidavits and documents placed on record and after hearing both the counsels was clearly of the view that complainants clearly proved that builder/developer was guilty of deficiency in service of non execution of Agreement of sale despite having received earnest money from each of the complainant. Therefore District Consumer Disputes Redressal Forum allowed the complaint partly and directed opponent/builder to execute agreement of sale in favour of each of the complainant and put them in possession of respective flats on completion of construction and after receiving balance of consideration amount from each of the complainants. Aggrieved by this order, original opponent/builder/developer M/s.Sheth Developers Ltd. has filed these three appeals.

6. Upon hearing both the counsels for rival parties, we are finding that the order passed by the District Consumer Disputes Redressal Forum is just and proper. It is sustainable in law. It is well reasoned order and we cannot find any fault with the order passed by the District Consumer Disputes Redressal Forum so that we can take indulgence by exercising our appellate jurisdiction under section 15 of Consumer Protection Act, 1986. Mr.Prabhawalkar-Advocate in the course of arguments submitted that the complaints as filed in the year 2007 by the complainants were barred by limitation. This aspect was not considered by the District Consumer Disputes Redressal Forum though it was raised in the written version. However, we are of the view that when flats are booked and possession is not given to the flat purchasers by the builder/developer, there is continuing cause of action and no amount of delay intervening booking of the flats and giving possession of the flats to the complainants by the builder can be said to defeat the complaints on the ground of limitation.

7. In Lata Construction and others v/s. Dr.Rameshchandra Ramniklal Shah & Another, III (1999) CPJ 46 (SC), Hon'ble Supreme Court has clearly laid down that National Commission rightly treated cause of action to be continuing cause of action and came to the conclusion that claim was not barred by limitation.

8. In Paranjape Construction Co. v/s. Nilesh Ram Marathe 2001(3)All Maharashtra Law Reporter (Journal) 1, this Commission has clearly held that if there is delay in construction and though consideration is paid by the purchaser and the formal agreement is not executed, still the complainant would be a consumer and builder would have to be directed to execute Agreement of sale, which was statutory duty of the builder developer under the Maharashtra Ownership Flats Act 1963.

9. Hon'ble National Commission in the case of Sri Hanuman Sahkari Avas Samiti Ltd. v/s. Smt.Anandi Choudhary, 1986-2006 CONSUMER 10791 (NS) clearly held that after a complaint is filed against non delivery of possession in 1995 though sale deed was executed in 1989, when the complainant was continuously pursuing her case for obtaining possession, there was continuing cause of action and complaint was not barred by limitation.

10. This State Commission in Consumer complaint no.133/2004 held that complaint filed in the year 2004 for possession of flat on the basis of allotment letter given on 20/02/1995 cannot be held to be barred by limitation.

11. Thus, we are of the view that once flat is booked with the builder by the respondents and builder had accepted certain amount as booking amount, complaint though filed after two years from initial booking done by the complainant would not be hit by limitation for the simple reason that booking is for possession of the flat and till possession is given, there is continuing cause of action against the builder qua complainants/respondents herein. In the case herein, all the three persons had paid certain amounts as booking amount for booking flats with the appellant/builder/ developer. They were assured to give certain flats but years went on and builder did not execute agreement of sale nor gave possession of the flats and on finding that builder was intending to refund the amount rather than executing agreement of sale and giving possession, they filed consumer complaints with a prayer that opponents should be directed to execute agreement of sale on accepting remaining amount of consideration at the rate prescribed and should be directed to give possession of the flats to them. This prayer was ultimately allowed by the District Consumer Disputes Redressal Forum by a reasoned order and we are finding that there appears to be no merit in the appeals preferred by original opponents against the order passed by the District Consumer Disputes Redressal Forum on whatsoever grounds. In the circumstances, we are inclined to pass the following order:-

ORDER

12. All the three appeals are dismissed.

Common impugned order passed by the District Consumer Disputes Redressal Forum in all the three complaints is confirmed.

Inform the parties accordingly.

Appeals dismissed.