Order No:  7                                                                            Date:01/09/2023

Today is fixed for hearing of this M.A. case which has been initiated by the O.ps. of C.C. case No.44/2022 on the ground that the C.C. case No.44/2022 is not maintainable.

This matter has been contested by the complainant who is the O.p. of this M.A. case by filing W/O.

Heard argument of both sides. Considered submission.

It is the main point of contention and argument of the applicant of this M.A. case that the C.C. case No.44/2022 is not maintainable on the ground that the complainant who is O.p. of this M.A. case has paid the consideration money in the year 2014 and thereafter the complainant who is the O.p. of this M.A. case further paid some amount in the account of the applicant of this M.A. case on 05/12/2021 but no reason has been assigned for such delayed payment. For that reason the C.C. case No.44/2022 is barred by limitation and there is no cause of action for the complainant to file this case and by drawing some documents such as lawyer letter dated 13/12/2021 and one document dated 23/01/2023 the applicant of this M.A. case pointed out that the complainant of the above noted C.C. case is in possession of the schedule mentioned property and the complainant of above noted C.C. case has not yet been paid Rs.54,51,429/- to the O.ps. for which the schedule mentioned property has not yet been registered and there is no fault or deficiency of service on the part of the applicant of this M.A. case.

On the other hand the O.p. of this M.A. case who is the complainant of the above noted C.C. case pointed out that they have paid the consideration money in the year 2014 and thereafter they also have paid Rs.20,000/- to the O.ps. in the year 2021 as per terms and conditions of the agreement. It is pointed out that in spite of making payment of consideration money the applicant of this M.A. case who is the O.p. of this C.C. case  has not handed over the possession of the schedule mentioned property and also has not executed and registered the sale deed and so there is cause of action for filing the C.C. case.

For the purpose of arriving at just and proper decision in the M.A. case No.26/2022, this District Commission after going through the materials of the case record finds that the complainant of the C.C. case no.44/2022 has paid consideration money in the year 2014 and it is also admitted fact that the complainant of the above noted C.C. case has also paid Rs.20,000/- in the year 2021 to the O.ps. of the C.C. case and the O.ps. also have accepted the same. When the O.ps. have accepted the money tendered by the complainant, they are estopped from challenging the fact that the C.C. case is barred by limitation and there is no cause of action for filing this C.C. case. Moreover, as per reported decision of Hon’ble National Commission which is reported in I(2020) CPJ 93 (NC) at the settled principal of law that failure to give possession of the flat is continuous wrong and constitutes recurrent cause of action. All these facts are clearly reflecting that the plea adopted by the applicant of this M.A. case who is the O.ps. of C.C. case No.44/2022 that the C.C. case No.44/2022 is not maintainable, has no legs to stand upon. So this part of point of contention of the applicant side of the M.A. case cannot be accepted.

In the light of the observation made above this District Commission is of the view that the C.C. case No.44/2022 is maintainable in the eye of law and so the M.A. case being no.26/2022 which is filed by the O.ps. of the C.C. case No.44/2022 is disposed of on contest.

Dictated & corrected by me.

President