Today is fixed for hearing of this M.A. case positively failing which necessary order as per law.

The applicants who are the ops of the C.C. case no. 119 of 2018 has filed this application on the ground that the C.C. case no. 119 of 2018 is not maintainable.

This matter has been contested by the op who is the complainant of C.C. case no. 119 of 2018 by filing W/O.

The argument highlighted by ld. Advocates of both sides has been heard by this District Commission. Considered submission.

It is main point of contention and argument of the applicant side of this M.A. case is that this case is not maintainable as it is barred by limitation and there is no cause of action for filing this case.

In this regard ld. Advocate for the applicant side pointed out that after payment of consideration money by the complainant one agreement for sale was executed and it was settled that the said agreement had a tenure of 120 days from the date of execution of the said agreement on 15.1.2007 but the above noted C.C. case no. 119 of 2018 has been filed after a long delay and so the said case is barred by limitation. As per submission of the ld. Advocate of applicant side by sending lawyer’s notice the cause of action cannot be created. Ld. Advocate for the applicant side over this issue has drawn the attention of this District Commission to the judgement passed in the case of State of Tripura vs. Arabinda Chakraborty & others which  is reported in 18 2014 SCC (6).

On the other hand it is main point of contention and argument of the op who is the complainant of C.C. case no. 119 of 2018 that the complainant has paid the consideration money but the ops have not handed over the flat to the complainant and also have not executed any deed of conveyance in favour of the complainant and for that reason the cause of action has been continuing.  It is argued that as the cause of action of the above noted C.C. case has been continued, the said case is not barred by limitation and for that reason the M.A. case no. 83 of 2022 is not maintainable.

For the purpose of arriving at the decision in this M.A. case this District Commission after going through the material of this case record finds that the complainant has paid the consideration money to op nos. 4 and 5 but the said amount of consideration money has not yet been refunded to the complainant. It is important to note that without refunding the consideration money to the complainant the op nos. 1 to 5 entered into fresh development agreement with op nos. 6 to 8 of the above noted complaint case. Over this issue the memorandum of understating which was executed in between the ops on 20.1.2018 it is revealed that the op nos. 6 to 7 agreed to take over proposed development work of the parties of the other part and also agreed to meet the previous liabilities by making payment to the different agreement holder in respect of the flats. This matter is clearly indicating that the present applicants of this M.A. case cannot get rid of their liabilities. Moreover, the present applicants are also duty bound to comply the compromise degree which is passed in title suit no. 61 of 2009 of the Court of Additional Civil Judge (Junior Division) at Serampore.  Thus, the cause of action of C.C. case no. 119 of 2018 has been continuing as the ops have failed to discharge their liabilities in view of the memorandum of understanding executed on 20.1.2018. So, the plea adopted by the applicants and argument highlighted ld. Advocate of the applicant on the point of limitation and cause of action in this M.A. case that this case is barred by limitation and there is no cause of action for filing this case is found not acceptable.

In the result,

 it is accordingly

ordered

that this M.A. case no. 83 of 2022 be and the same is dismissed on contest.

No order is passed as to costs.

Let the case of this M.A. case no. 83 of 2022 be tagged with the original case record of C.C. case no. 119 of 2018.