KALPANA BHATTACHARYYA Vs. AMITAV GANGULY

JUDGEMENT

(1.) THIS appeal has been directed against the judgment the learned District Forum 24 Parganas (South), on 23.12.2009, in the case No. 290/2009, wherein the Forum below was pleased to dismiss the complaint petition as time barred and non production of the agreement signed by and between the landowner and developer in respect of using garage space and generator room.

(2.) THE fact of the case of the Complainant before the Forum below was that the husband of the Complainant being the land owner of a piece of land entered into a Development Agreement on 5.6.1997 with the OPs -1 and 2 for development of his properties. Subsequently, possession of the Owner s Allocation was handed over to the husband of the Complainant and the OPs -1 and 2 sold out Developer s Allocation to the respective buyers. The OP - 1 and 2 have executed deed of conveyance in favour of the flat purchasers. The allegation of the Complainant is that OP - Developer is using the garage space and generator room illegally and in case of using the said space a separate agreement was signed by and between the land owner and the developer. The copy of the said agreement is lying with the OP, which they did not return to the Complainant. For redressal of his grievance the Complainant filed the complaint petition before the Forum below praying for direction upon the OPs -1 and 2 to handover the original documents, sanction plan of the said building, to clear the main passage as indicated in the sanction plan for entering into the premises No. 55. The complainant has prayed for direction upon the OP Nos. 4 and 5 not to use the generator room and electric room for any business purpose. The Complainant has prayed for compensation from the OP Nos. 1 and 2 to the tune of Rs. 1,00,000 due to mental agony and sufferings and litigation cost.

(3.) BEING dissatisfied by the above mention judgment the Complainant -Appellant has preferred the present appeal before this commission contending that the Forum has erred in holding that separate agreement in respect of generator room and garage space has not been filed. The Forum has failed to appreciate that the case has been filed after 12 years from the date of original Agreement, which is misconceived. The cause of action of this case is continuing one because the cause of action arose when the complainant came to know or gathered knowledge regarding using of the common space and generator room for business purpose by some on indulged by the developer. In this connection the Complainant made some correspondence with the OP -1 and 2 on 10.9.2009 and from that day cause of action started and the complainant petition was filed within 2 years from the date of cause of action. So the complainant s petition is not time barred. According to the appellant the judgment passed by the Forum below is erroneous, illegal and is liable to be set aside, the appellant has prayed for allowing the present appeal.