1. The petitioner has filed an affidavit stating therein that dasti notice was tendered by him to respondent no. 2 but was refused by him. In view of the said affidavit, the respondent no. 2 is declared to have been duly served.
2. The complainants, who are brothers, booked separate plots of land with the respondent Ushodaya Real Estates and paid the sale consideration for the aforesaid plots in 60 installments commencing from 21.02.1994 and ending on 18.02.1999. Two separate plots, both measuring 248 sq. yds., were allotted to them. However, neither the possession of the plots was delivered to them nor was the sale deed of the plot executed in their favour. The case of the complainants is that on 31.08.2009, they came to know that the plots allotted to them had been sold by the respondents to other persons. Being aggrieved, they approached the concerned District Forum by way of two separate complaints, filed in November, 2011. The complainants also filed applications seeking condonation of delay of 89 days in filing the complaints.
3. The complaints were resisted by the respondents inter-alia on the ground that they were patently barred by limitation. It was submitted by the respondents that the draw of lots was held on 15.08.1999 which was attended by one of the complainants and it was decided in the meeting of the allottees that they would get the sale deed executed within three months from the said date. According to the respondents, the cause of action for filing of the complaints therefore, arose on 15.08.1999 or at best on expiry of three months from 15.08.1999.
4. The District Forum, vide its order dated 22.11.2013, dismissed the applications seeking condonation of delay in filing the complaints and consequently also dismissed the complaints. Being aggrieved, the complainants approached the concerned State Commission by way of two separate appeals. The said appeals having been dismissed, the complainants are before this Commission by way of these two separate revisions petitions.
5. The only question which arises for consideration in these petitions is as to how much, if any, was the delay in filing the complaints. According to the complainants, the cause of action to file the complaints arose to them on 31.08.2009 when they visited the office of the Sub-Registrar and came to know that the plots in question had been transferred by the respondents to other persons.
6. It is an admitted position that the possession of the plots booked by the complainants was not delivered or even offered to them at any point of time. Reliance in this regard may be placed upon the decision of the Hon’ble Supreme Court in Meerut Development Authority Vs. M.K. Gupta, IV (2012) CPJ 12 where the Hon’ble Supreme Court held that in such a case the buyer has a recurrent cause for filing a complaint for non-delivery of possession of the plot. The complainants/petitioners therefore, had a recurrent cause of action, till either the possession was delivered to them or it was unequivocally refused by the respondents. The case of the complainants is that since they are based in a city different from the city in which the plots in question are situated, they could not regularly pursue the matter with the respondents and came to know of the subsequent transfer only when they visited the office of the concerned Sub-Registrar on 31.08.2009. There is no material on record to show that the respondents had written to the complainants, at any point of time, asking them to take possession of the plots allotted to them and get the sale deed of the said plots executed in their favour. The respondents having already received the entire sale consideration from the complainants, they had nothing to lose by retaining the possession of the plots allotted to the complainants except incurring expenses in connection with the maintenance of the plots and employing watch and ward staff to look after the said plots. Had the respondents issued a notice to the complainants requiring them to take possession of the plots and get the sale deeds executed in their favour or had they cancelled the allotments made to them, the cause of action to file the complaints would immediately have accrued to the complainants and consequently, the period of limitation for filing the complaints would have commenced from the date of the said notice. That however, was not done at any point of time. In fact, I fail to appreciate how the respondents could even have allotted these plots to some other persons without first cancelling the allotment made to the complainants. There is no notice/letter sent by the respondents to the complainants cancelling the allotments made to them.
7. It is contended by the learned counsel for the respondents that the cause of action for filing the complaints arose when the draw of lots was held in the presence of one of the complainants on 15.08.1999 or at best, within three months from that date. In my view, the failure of the respondents to hand over possession of the plots and executing the sale deed in favour of the complainants despite they having received the entire sale consideration, gave a recurrent and continuing cause of action to the complainants and that cause of action continued to subsist, till the date on which the complaint came to be filed.
8. If computed from 31.08.2009 when the complainants visited the office of the Sub-Registrar and came to know of the transfer of the plots to other persons, there was a delay of about 89 days in filing the complaints. Considering all the facts and circumstances of the case, as discussed hereinabove, including that the complainants that themselves sought condonation of delay of 89 days, the aforesaid delay is condoned subject to the payment of Rs. 5000/- each as cost by the complainants.
9. It has come in the reply filed by the respondents that the plots in question are no more available and the same have already been sold to some other persons. The complainants have claimed monetary compensation from the respondents, but no evidence has been led by them before the District Forum to prove as to what was the market value of the said plots on the date the complaints were filed. In these circumstances, it becomes imperative to remit the matter back to the concerned District Forum t
Please Login To View The Full Judgment!
o given an opportunity to the parties to lead evidence to prove the market value of the plots in question as on the date of filing of the complaints and the quantum of the compensation to which the complainants are entitled in this case. 10. For the reasons stated hereinabove, the impugned orders are set aside, the delay if any, in filing the complaint is condoned and the matter is remitted back to the concerned District Forum for deciding the complaints on merits, in the light of this order. The parties shall appear before the concerned District Forum on 12.12.2015. It is made clear that the observations made in this order will have no bearing on the merits of the complaints.