Order No.   4                                          Date : 18.03.2016.

          This date was fixed for passing order on the non maintainability petition filed by the o.p. M/S. Home Development Co. of  Ghoshparabazar, Bally,  praying for dismissal of the complaint case no. 40 of 2016 on the ground of non maintainability of the same stating that in the instant case  the petitioner shows that she advanced a sum of Rs. 2 lakhs for purchase of a flat from the o.ps. in the Ramakrishna Apartment and she made payment on 03.11.2013 and 19.07.2015 through two cheques. She has also stated that in spite of acceptance of  booking money, the o.ps. neither  handed over possession of the subject flat to the petitioner nor execute the deed of conveyance even though the petitioner always ready and willing to pay the balance consideration and got the execution and registration in his favour. Lastly the petitioner sent advocate’s letter dated 09.12.2015 and then filed this case which is severely barred by limitation U/S 24A of the C.P. Act, 1986  as it is laid down in the Act that the District Forum or the State Commission or National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. Here the payment was accepted by the o.p. on 19.7.2005 as alleged in this case and since  then over 10 years lapsed and such a complaint case be dismissed  with costs. It is further stated in the petition that the petitioner filed the case for a flat measuring about 1100 sq. ft. and the valuation of the same would exceed the pecuniary jurisdiction of this Forum and so the case is not maintainable.

          Ld. counsel for the petitioner raises vehement verbal objection in the said petition stating that the Forum already accepted the case and so the matter be heard on contest. This Forum kept in mind the submission of ld. counsel of both sides and keeping in mind the provision of law as well as contents of the non maintainability petition as well as the complaint case no. 40 of 2016. It is noticed from the contents of the claim petition that the petitioner paid a sum of Rs. 1 lakh each in the year 2003 and  2005 respectively to the o.p. and now the petitioner files this case in the year 2016 after lapse of over 10 years with prayer that this Forum would direct the o.p. to hand over and deliver possession of the schedule mentioned flat measuring 1100 sq. ft. and register the same in favour of the petitioner after receiving the rest consideration money. It is also noticed from Section 24 of the C. P. Act, 1986 wherein there is clear mention of the limitation period for filing a complaint and it is stated therein that the District Forum shall not admit a complaint unless it is filed within two years from the date on which the  cause of action has arisen and such complaint may be entertained by the Forum if there is sufficient cause for not filing the complaint within such period of two years. Thus in the instant case the limitation period starts or commences from the date of cause of action. In the instant case the cause of action arose on the date of booking of the flat wherein the first booking money was received by a cheque dated 03.11.2003 and the same continued when the next booking money was received by the o.p. on 19.7.2005. Thus the cause of action continued till 19.7.2005 wherefrom commenced the period of limitation and thus the case would have been filed by the petitioner within 19.7.2007 that is within two years from the date of commencement of period of limitation.

          Our Supreme Court in the case of V.N. Shrikhande vs. Anita Sena Farnandas opined that “Section 24-A(1) contains a negative legislative mandate against admission of a complaint which has been filed after 2 years from the date of accrual of the cause of action. In other words, the Consumer Forums do not have the jurisdiction to entertain la complaint if the same is not filed within 2 years from the date on which the cause of action has arisen. This power is required to be exercised after giving opportunity of hearing to the complainant, who lcan seek condonation of delay under Sec. 24-A(2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under sec. 24-A(1). If the complaint is per se barred by time and the complainant does not seek condonation of delay under sec. 24-A (2), the Consumer  Forums will have no option but to dismiss the same.”

     In the case our Supreme Court also opined in the same way. Thus this Forum has no jurisdiction to continue the claim case as in the instant case the petitioner filed no condonation  petition U/S 24A ( 2 ) of the C.P. Act, 1986.

          In view of above discussion and findings this Forum finds that the case is not maintainable.

          Hence,

                                O R D E R  E D     

              That the CC no. 40 of 2016 be and the same is dismissed on contest as not maintainable.

          Supply the copy of this order to the parties, free of costs.

Order No.     5                                                                                   Date 22/03/2016

The record is put up by a petition of petitioner for withdrawal of the case.

However the case is already disposed of on 18/03/2016 adn no the petition of petition is redundantly now .

This the petition is disposed of.