DEBJANI MAHAPATRA Vs. NIKHIL SEN & ORS

JUDGEMENT

(1.) THIS is an appeal filed against the order Nos. 34 and 36 dated 16.12.2003 and 18.2.2004 respectively passed by the Forum in the Forum Case No. 72 of 2002. The present appellant was the complainant while the respondents were the O.Ps. The facts in brief are summarized below.

(2.) O .P. 7 namely Anjali Tower Pvt. Ltd. entered into an agreement with the husband of the complainant (since deceased) on 6.9.1992 for sale of a flat. Major portion of the consideration money was paid in respect of the flat and the complainant got possession on 23.10.1999. However the deed of conveyance in favour of the complainant is yet to be executed and registered. As the complainant could not get the deed of conveyance executed and registered she filed a complaint before the Forum. The Forum by its majority view dismissed the complaint petition without cost on the ground of limitation. The Forum was of the opinion that the cause of action arose on 23.10.1999 when the complainant got possession oftheflatandasthecasewasfiledon 23.3.2002 that is beyond the period of 2 years from the date of cause of action, the complaint petition was barred by limitation. Incidentally by the minority order passed by the President of the Forum the case was allowed on contest. Being aggrieved by the aforesaid majority order of the Forum (passed by the two Members) the complainant has come in appeal before the Commission.

(3.) IN the memo of appeal the appellant has pleaded that the Forum misconstrued the term cause of action and erred in holding that the cause of action arose on 23.10.1999 that is the date of delivery of possession of the subject flat. The appellant has further contended that the Forum did not take into account the fact of part payment being made by the appellant on 24.1.2001, while the balance amount of the consideration money amounting to Rs. 74,248 was paid on 3.9.2003. During the hearing of the appeal the appellant was present through her Advocate, Mr. G. Gupta Roy, but the respondents did not appear in spite of notices being served. As such the hearing was held ex parte. The learned Advocate more or less argued on the same line as pleaded in the memo of appeal and submitted that the date of possession could not be taken as the date on which the cause of action arose because the deed of conveyance is yet to be executed though possession was given earlier. Moreover, part of the consideration money was paid on 24.1.2001 and hence the limitation cannot have started before that date.