HON’BLE MR.JUSTICE ISHAN CHANDRA DAS,PRESIDENT

          This Appeal has been directed against the order of dismissal passed by the erstwhile ld. D.C.D.R.F., Kolkata Unit III in C.C. 123 of 2019 where the Complaint case was not admitted as  the Petition of complaint was  filed much after the statutory period of limitation and there was no prayer for condonation of delay in filing such Petition of complaint.

          Being aggrieved by such order of dismissal, the present Appeal has been preferred by the Complainant who prayed for direction upon the OPs to complete the works  of the allotted plot, as per terms and conditions of the Agreement or to refund the entire amount with compensation Rs.5 lakh (Rupees five lakh) and a sum of Rws.10,000/- (Rupees ten thousand) towards litigation cost.

          The case of the Complainant/Appellant (and hereinafter referred to as the complainant) was that the complainant entered into an Agreement dated 25.4.2012 for purchasing a plot of land measuring 1440 sq.ft. for a consideration of Rs.3,40,000/- (Rupees three lakh forty thousand) and filed an application for purchasing the same on payment of an amount of Rs.1,02,000/- (Rupees one lakh two thousand) as earnest money and the complainant undertook to pay the balance amount of consideration by 36 monthly  instalments, paid the entire consideration as per agreement. The complainant were put in possession on execution of a Deed of conveyance dated 16.10.2015 but the area of the plot was not demarcated for which the complainant could not construct the boundary wall and would not complete the same plot for the purpose of which it was purchased. The complainant requested the OPs to perform their part in terms of agreement despite repeated requests which compelled them to file the instant case after sending an Advocate’s notice dated 11.12.2017.

          Ld. DCDRF by order no.2 dated 12.3.2019 held the following :-

          “Order no.2 dated 12-3-2019

                                                 ORDER 

Today is the date fixed for hearing regarding admission of the complaint. Ld. Advocate for the complainant is present. Heard Ld.Advocate . Perused the petition of complaint and the documents annexed therein. On perusal of the complaint petition and the documents therein it appears that the Deed of conveyance in respect of the plot of land has been executed in favour of the complainant on 16.10.2015. The recital of the said Deed of conveyance is very categorical that the possession of the schedule property has been delivered to the purchaser. So if the Deed of Conveyance has been executed on 16/10/2015 the cause of action if any existed till 16/10/2017 . But the present complaint has been filed much after the statutory period of limitation of two years. No petition for condoning the delay is filed by the complainant. In such a situation, complaint is not maintainable and thus liable to be dismissed. It may be mentioned that mere sending of notice, will not extend the period of limitation. Thus CC/123/2019 is dismissed accordingly being not admitted.”

          Ld. Counsel for the respondent submitted that the ld. D.C.D.R.F. did not commit any mistake in passing the order impugned and rightly dismissed the Complaint case as it was hit by law of limitation.

          Heard both sides at length. From the averments of the Petition of complaint it appears that the complainant/appellant entered into the agreement on 25.4.2012 as the Deed of conveyance was made on 16.10.2015 though the respondent did not comply the terms and conditions of the agreement in respect of the Development of the plot nor any demarcation of the plot transferred in favour of the complainant was shown physically so that the appellant could get the order of  conversion of the plot from the Competent Authority within the reasonable time. Mere assurance to complete such condition for development of the Project was not sufficient rather it compelled the appellant  to send Advocate’s letter dated 7.12.2017 [which is Annexure-E of the file].

          Here non-fulfilment of the condition as per agreement is the cause of action which was continuing for an unlimited period by the OP/Respondent herein and the very essence of the cause of action here is the continuing wrong on the part of the OP/respondent and not the continuing assertion of the right of the complainant/appellant.

          Hence, keeping in mind the very purpose of the Consumer Protection Act, a beneficial legislation  to protect the interest of the consumers and to protect them from the clutches/traps of the unscrupulous businessman/traders/promoters etc  we are of the view that the complainant’s prayer for getting relief cannot be thrown away on mere technicalities, as it was  done in the instant case. Hence, we allow the Appeal, set aside the order impugned being Order no.2 dated 12.3.2019 in CC/123/2019 and direct ld. D.C.D.R.Commission  to admit the Petition of complaint and to dispose of the same according to law. Parties do bear their respective costs of appeal.