Joita Estate had constructed a building at New Alipore in Kolkata and sold flats to various home buyers. The owners were given possession of their flats in March 1999 and they have been residing in their respective flats since then. The builder had also got the mutation entries carried out in the records of the Kolkata Municipal Corporation, which reflected the names of the flat purchasers as owners of their flats. However, the builder failed to execute the sale deed despite repeated demands.
After 15 years, nine flat purchasers filed individual complaints before the Kolkata District Forum against Joita Estates and its director Anjali Chakraborty, seeking a direction to execute the sale deed.
The forum passed a cryptic order, observing the flat purchasers had not approached the forum with clean hands. But, no reason was given for arriving at such a conclusion. The complaints were dismissed as being time-barred.
The flat purchasers then appealed to the West Bengal State Commission, which concurred with the view taken by the District Forum. The State Commission also observed there was a considerable delay of 15 years in filing the complaint, yet no application was made to condone the delay.
The home buyers finally approached the National Commission, which noted that the forum had not given any reason whatsoever for making adverse observations against the complainants. Similarly, the State Commission had also not given any justification for concurring with the view taken by the District Forum.
The National Commission pointed out that a mere delay in taking legal action would not amount to approaching the forum with unclean hands. The sale agreement of August 26, 1994, cast an obligation on the builder to execute a sale deed, and the failure to execute it would constitute a deficiency in service. The National Commission observed when the default continues on a day-to-day basis, the cause of action will continue till compliance of the statutory requirement. Hence, it was erroneous to consider the complaints as having been filed beyond the period of limitation.
Accordingly, by its order of October 3, 2016, delivered by the Bench of National Commission comprising its president Justice D K Jain and member M Shreesha held that the complaints were not time-barred. The dismissal orders were set aside and the complaints were remanded back to the District Forum for adjudication on merits.
A complaint regarding deficiency in service pertaining to non-compliance of statutory obligations such as the failure to obtain the occupancy certificate, or execute conveyance or sale deed, can be filed at any point of time. The limitation period of two years for filing of complaints would not be applicable to such disputes, as the cause of action continues on a day-to-day basis.
The author is a consumer activist
