Prem Narain ORDER
Prem Narain, (Presiding Member)
1. This first appeal has been filed by the appellant, Vinod Kumar Kataria against the order dated 18.4.2017 passed by the State Consumer Disputes Redressal Commission, Delhi (for short, 'State Commission') in Consumer Complaint No. 651 of 2016.
2. Brief facts of the case are that appellant/complainant had purchased the first floor of the property bearing No. RZ/F-51/A, Mahavir Enclave, New Delhi on 22.8.2012 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.
3. Hence, the present first appeal.
4. Heard the appellant in person and perused the record.
5. The appellant/complainant stated that right from the date of possession, he noticed various defects like, cracks in the walls of the flat etc. and they were intimated to the OP. The OP admitted deficiency of service on its part on 10.2.2013 and promised to rectify the same at the shortest time upto 28.2.2013. However, the OP did not attend it and then a notice dated 1.7.2014 was sent to the OP. However, the same was not replied by the OP. Thus, the cause of action has actually arisen on 1.7.2014. The State Commission has erred in calculating the period of limitation from the date of possession. The learned counsel further mentioned that the State Commission has relied on the decision of this Commission in Dr. Gopal and Another Vs. Deorao Ganpat Kaore and others (R.P. No. 1915 of 2015 decided on 11.12.2015). In this regard, the appellant submitted that the above judgment is not applicable in the present case. In the referred case the decision was taken on the report of Dr. Vinod Ganvir, who had carried out inspection in terms of the order of the District Forum where structural drawings and the stability certificate was submitted by a renowned structural designer Dr. (Prof) Basole, a retired Professor & HOD of Deptt. Of Civil Engineering, VNIT, Nagpur, whereas no such report is there in the present case but defects have been alleged by the complainant with proof. Moreover in the aforesaid case, the judgment of Yashpal Marwaha Vs. Pushpa Builders Ltd. MANU/CF/0228/2005 : (II (2006) CPJ 259 (N.C.) was referred as under:
"In Yashpal Marwaha (supra), the OP No. 1 admitted deficiency of service on its part and promised to rectify the same at the shortest time but had not done so. It was, therefore, held that the cause of action was a continuous one and still subsisting."
6. The learned counsel has pleaded that from the aforesaid observation, it is evident that if the builder has admitted deficiency and has promised to rectify the defects, the cause of action continues till the rectification is made. In the present case also the builder had promised to rectify the defects but nothing has been done by the builder. So, the cause of action continues and no delay can be imputed on the part of the complainant.
7. I have carefully considered the arguments advanced by the appellant and have examined the material on record. From the facts of the case, it is clear that sale deed was executed on 22.8.2012 and the possession was handed over in October, 2012. The complaint has been filed on 14.6.2016. The State Commission has relied upon the judgment of this Commission in Dr. Gopal and Another Vs. Deorao Ganpat Kaore and others (supra), wherein the following is observed:
"13. I have carefully considered the decisions relied upon........