Date of Filing: 16.09.2022                                                      Date of Disposal: 04.01.2023 

Complainant-Shyama Prosad Ghosal         Vs.       O.P.-Bubble Deal Com. Pvt. Ltd.

Order Date: 04.01.2023

 Today is fixed for passing order in respect of M.A. cases being Nos.71/2022and 74/2022.

The complainant himself files hazira but the O.P. has filed a petition praying for an adjournment of the hearing of the M.A. case being No.74/2022 on the grounds of non-availability of the paper to file W/O.

Heard both sides. Considered. The prayer is allowed.

But there is no bar in respect of passing order for the M.A. case being No.71/2022.

Accordingly, the M.A. case being No.71/2022 is taken-up for passing order.

On 16.09.2022, the O.P. has filed a petition supported by an affidavit praying for passing order to dismiss the case being not maintainable in its present form and prayer under the C.P. Act, 2019 on the grounds that the cause of action as alleged in the instant case is speaking about the sending of notice dated  11.04.2022 which unless be answered of cannot be said to be cause of action in any manner otherwise the deed in dispute bears the deed dated 10.01.2017 bearing Deed No.I-0207-00115 for the year 2017 of the Office of ADSR, Kalna and since the deeds dated 10.01.2017 more than five and half years has already elapsed and the notarized agreement for sale involved in this dispute bears a prior date. More particularly, 02.08.2014 from which more than 8 years has already elapsed.

The complainant has filed W/O denying all the material allegations and submitted that the cause of action has also arisen this day as defects are still intact as it were before today. The cause of action also prevailed on the date 00-3-2022 when he asked for the possession letter from the O.P. The O.P. has not handed over the possession letter to the complainant till date (Refer to his e-mail dated 00-03-2022. Even after writing e-mail to the O.P., the O.P. has not handed over the possession letter, this arises cause of action every day till the O.P. hands over the copy of the occupancy certificate, possession letter, provide demarcated parking slot that comes with flat and removes all the defects as pointed out in his original complaint to match the layout plan and the facts as given in the brochure.

He prayed for dismissal of the petition.

On perusal of the record, it is found that this case has been filed on 06.05.2022 against the O.P. u/S 35 of the C.P. Act, 2019 and the complaint disclosed cause of action  arose on 15.02.2022 when his Central Bank of India sent a letter dated 15.02.2022 to the O.P. asking him for the possession letter, occupancy certificate and parking allotment that has not been given to him by the O.P. till date and he has also sent a notice dated 11.04.2022 to the O.P. u/S 65(1) of the C.P. Act giving him time of seven days to rectify the defects in the building and his illegal activities. But the O.P. has not done any efforts to remove those defects. As such, another cause of action arose on 11.04.2022.

The O.P. in his written version took plea of general defence that the complaint is not maintainable in law and fact and the complainant has no cause of action to file the case.

Perused the agreement in between the parties and the letter dated 11.04.2022, monthly maintenance charge paid by the complainant and letter dated 15.02.2022. These documents support the version of the complainant. An order dated 17.05.2022 discloses that the complaint has been lodged within the period of limitation. That apart, the general defence with the plea of limitation is open to the O.P to argue for the matter at the time of conclusion of the trial.

Under the above facts and circumstances of the case, we are of opinion that the petition filed by the O.P. with a prayer that the instant case to be dismissed being not maintainable in its present form, cannot stand at this stage.

Hence, it is

Ordered

that M.A. case being 71/2022 be and the same is disposed of on contest but without any cost.

To 03.03.2023 for hearing of M.A. case being No.74/2022.

     Dictated & corrected by me.

                      President

     D.C.D.R.C , Purba Bardhaman.

      Member                                        Member                                                                 President

D.C.D.R.C., Purba Bardhaman          D.C.D.R.C., Purba Bardhaman                D.C.D.R.C., Purba Bardhaman