SAMIKSHA BHATTACHARYA, MEMBER

        The questioning property of the instant Revision Petition has been directed by the Revisionist/OPs against the order no.9 dated 23.04.2019 in CC/128/2018 pending before  erstwhile DCDRF, South 24 Parganas.

         Ld. Advocate for the Revisionists submits before us that  the  complaint case has been filed after more or less  two years seven months from the date of cause of action. The complainants  have unilaterally  cancelled the Agreement  for Sale on 15.04.2016 and as such  the cause of action, if at all, arose on the  date and the case is barred by limitation since the complainants have not filed any petition Under Section 24 (A) of CP Act 1986.

        In the Revision petition , Revisionists/OPs has also said that the instant complaint is nothing but  the money claim and does not relate  to any deficiency  in service in   any manner whatsoever. Moreover,  Ld. Advocate for the Revisionists has  drew our attention by showing the Para  No. 6 of the petition of complaint where the  price of the property has been mentioned as Rs. 47,19,482/-. Complainants have also prayed for refund  of Rs. 3,57,922/- with 12% interest alongwith compensation of Rs. 3,00,000/- for mental agony and  harassment,  Rs.2,00,000/- for unfair  trade practice, Rs. 1,00,000/- for incidental  expenses. Therefore , the complaint case is not maintainable  for pecuniary jurisdiction also. 

          On scrutiny  of the record we have observed that the OPs filed  MA being No.  MA Case No. 156/2018  where the OPs claimed that  the petition of complaint is not maintainable  on the ground  that the complainants  terminated the Agreement for Sale on  15.04.2016. But the complaint case  has been filed  after  more than 2 ½  years from the date when the  cause of action, if at all,  arose. Secondly, in the MA application OPs stated that the complaint case is liable to be rejected at the threshold only on the ground of  frivolous  exaggerated  claim  made for the purpose of invoking the jurisdiction of the Ld. Forum.

          Ld. Advocate for the complainants submitted that findings of the Ld. Forum is correct and there is no irregularity in the order passed by the Ld. Forum. The case is  very much    maintainable before the Ld. Forum and therefore  prays for dismissal of the Revision Petition.  

        We have gone through the   materials on record, specially the petition of  miscellaneous application filed before the Ld. Forum challenging  maintainability of the case in particular. The Ld. Advocate for the revisionist submits that  the flat value and the consequential relief prayed by the complainants is beyond the  pecuniary jurisdiction of Ld. Forum but this ground is not mentioned in the MA application. In the MA application OPs only pointed out that the complainants prayed for   exaggerated claim and the case is  nothing but   money claim.  The ground of pecuniary jurisdiction is  pleaded before this Commission, but that was not mentioned in the Miscellaneous Application. Since the ground  mentioned in the MA Application is otherwise than the pleading of Ld. Advocate for the Revisionist, therefore, the submission of  the Ld. Advocate for the Revisionist cannot  be entertained.

         Secondly, Ld.  Advocate for Revisionist submits that the case is barred by limitation. This ground is taken in the MA/156/2018. Now we have to consider whether the case is barred by limitation or not. It is admitted fact that the complainants have terminated the agreement on 15.04.2016 but the Ld. Forum has rightly observed that since OP developer could not complete the project within two years from date  of sale agreement there is a provision of  termination of  Sale Agreement vide clause  12 thereof.  Under clause 12.3, a purchaser is entitled to terminate the agreement after expiry of 24 months of the execution of the agreement. As per clause 12.3 of the agreement  for sale in the event the Developer fails and/or neglect to perform any of the Developer’s Covenants, this Agreement shall, at the option of the Purchaser, stand cancelled and/or rescinded, upon which the Developer  refund to the purchaser all payments received till the date of cancellation alongwith interest @ 12% p.a. from the respective dates of payment till the date of refund. Therefore, the Ld. Forum has rightly observed that the cause of action  is continuing  day after day. Therefore, the  point of limitation  does not hit the instant case.

            Thirdly, Ld. Advocate for the Revisionist submits  before us that as per  cancellation   the refund  has been made by the OPs but in the MA/156/2019, OP has  admitted that refund is  still due  to the complainants.  Therefore, the  Ld. DCDRF rightly rejected the  MA Application. There is no infirmity  in the order NO.9 dated 23.04.2019 in MA/156/2018 in connection with CC/128/2018  passed by Ld. DCDRF, South 24 Parganas as per grounds  mentioned in the Miscellaneous Application.

            In view of the above, the Revision Petition being No. 66/2019 is rejected on contest.

           The RP/66/2019 is disposed of accordingly.