Today is fixed for hearing of MA 43/2022.
The Ld. Advocates on both sides are heard in full for and against the application.
The Ld. Advocate appearing for the OPs has relied upon the cancellation letter dated 02.09.2017 which was sent by the complainant to the OPs exposing his intimation to cancel the agreement for sale dated 17.10.2014 in support of his submission that the case was filed on 03.09.2020 long after a period of two years from the date of cancellation of the agreement and therefore the case is vitiated by Section 69 of the C.P Act.
According to him, the period of limitation in such a case would run from the date of cancellation of the agreement. The case was filed on 03.09.2020.
It is submitted by the Ld. Advocate of the complainant that for getting refund of 12,50,000/- as per agreement dt. 17.10.2014 the complainant has filed this case on and from the date of cancellation the period of limitation would run. Admittedly the amount advanced under the agreement dated 17.10.2014 has not so far been refunded. The cancellation letter was duly received by the OPs on the self same date. We can at best treat the said letter as an offer for cancellation of the agreement dated 17.10.2014, and the so called cancellation would take the shape of agreement had the amount advanced been refunded by the OPs.
The complainant’s offer to get the agreement cancelled was not accepted by the OPs by refunding the paid amount. Therefore, it cannot be concluded by any stretch of imagination that the agreement for sale dated 17.10.2014 lost its force due to the complainant’s letter sent and received on 02.09.2017. The letter dated 02.09.2017 which was not followed by refund of paid amount, cannot operate as an agreement.
It would not be proper to compute the period of limitation on and from 02.09.2022. In fact as well as in Law the complainant had continuous cause of action against the OP. It cannot be opined that period of limitation as enshrined under Section 69 of the Act would be applicable in such a case.
The MA 43/2022 is therefore calls for no action and hence dismissed.
03.08.2022 is fixed for filing questionnaire by the OPs.
