The period of delay is to be counted from the knowledge of the deficiency

In Vinod Kumar Kataria Vs. Arufa,  first appeal has been filed by the Appellant against the order passed by the State Commission. Appellant/complainant had purchased the first floor of the property from the opposite party and sale deed was executed in his favour. The possession of the flat in question was handed over to the complainant in October 2012. It was alleged that, after shifting in the aforesaid premises, the complainant realized that, the OP had used inferior quality material in the construction of the flat and noticed major defects. Based on this fact, the complainant filed complaint before the State Commission for refund of the total amount of purchase price amounting to Rs. 25,00,000/- alongwith Rs. 1,50,000/- as expense of sale deed. The State Commission, however, dismissed the complaint at the admission stage on the ground of limitation and on the ground that other occupants have filed a civil suit for illegal construction and the complainant may also join the same.

From the facts of the case, it is clear that sale deed was executed on 22nd August, 2012 and the possession was handed over in October, 2012. The complaint has been filed on 14th June, 2016. The State Commission has relied upon the judgment of this Commission in Dr. Gopal and Another Vs. Deorao Ganpat Kaore and others, wherein, it has been held that, the period of limitation in respect of patent defects will commence from a date later on the date on which the said patent defects comes to the notice of the complainant. No doubt, a builder is under an obligation to rectify the defects, if any, found in the house constructed by him, but if he fails to do so, the complainant is required to approach a consumer forum within two years from the date on which the said defect is noticed by him for the first time. In case he was prevented by sufficient cause from filing a complaint within the prescribed period of limitation, he must file an application seeking condonation of delay in filing the complaint.

In the present case also, the Appellant has not produced any acknowledgment by the builder that, he admits the defects and that he promised to rectify the same within a particular period. Thus, from the above observation of this Commission, it is clear that the cause of action could not be treated as continuing one. The period of delay is to be counted from the knowledge of the deficiency. In fact, the cause of action has arisen on the date when the possession was taken by the appellant/complainant and it cannot be treated as extended by way of any correspondence between the parties.

The National Commission dismissed the appeal holding that, the complaint was highly time barred and no application for condonation of delay was moved before the State Commission, therefore, the State Commission was totally justified in dismissing the complaint on the ground of limitation. Moreover, the State Commission has also noted that, a civil case has been filed by the other occupants for the alleged illegal construction in the parking space by the opposite party and the complainant has been given liberty to join the same. If a matter is already pending adjudication in a civil Court, the same cannot be considered by the consumer forum simultaneously. Hence, this part of the order of the State Commission is also justified.