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Period of limitation starts from the date defect comes to the notice of the Complainant

In Rajendra Kumar Poddar vs M/S. Subham Constructions, the State Commission has dismissed the complaint on the ground of having been filed after two years from the date of cause of action and therefore appeal before NCDRC.

Learned counsel stated that the possession was taken on 18.05.2012 and after taking the possession the complainant noticed that there were several defects in the construction and the complainant was pursuing the matter with the opposite parties.  The opposite parties were giving assurance for rectification of the defects, however, when no rectification was done the complaint was filed on 08.01.2015. The State Commission has considered the period of limitation from the date of possession whereas the fact is that complainant was pursuing with the opposite parties and it was continuing cause of action as all the defects were not noticed initially and later on more defects came to the light, therefore, the limitation should be counted from the date of awareness of all the defects mentioned in the complaint.  All the defects were noticed in the month of January, 2013 only and therefore, the complaint filed in January, 2015 was within the limitation period. 

The NCDRC agreed with the State Commission which had referred to Kandimalla Raghavaiah & Co. Vs. National Insurance Co. Ltd. & Anr. wherein the Hon'ble Supreme Court has reiterated the decision of the Hon'ble Supreme Court in State Bank of India Vs. B.S. Agricultural Industries wherein it was held that the consumer forum has to decide the issue of limitation first and complaint will not be admitted if it is filed after two year beyond the date of cause of action.  Once the possession was taken on 18.05.2012, it cannot be said that the defects did not come to the notice of the complainant even within a period of one or two months.  First of all, the complainant would have taken the possession only after prior inspection of the unit.  However, even if that was not done, atleast the complainant should have known the defects while taking possession or atleast within a period of one or two months.

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