Sujit Kumar Sil & Anr vs Sudipta Biswas

Vakalatnama is filed on behalf of the respondent. Arguments are heard.

The present revision petition has been filed against the order dated 22.8.2017 of the State Commission in appeal No.FA/510/2014 filed by the respondent/complainant (hereinafter called as "complainant") whereby the complaint No.307/2013 was dismissed vide order dated 31st March, 2014 by the District Forum.

Brief facts of the case are that both the parties entered into an agreement for purchase of a flat measuring 845 sq. ft. for a sum of Rs.6,50,000/-. A sum of Rs.4 lakh was paid by the complainant for which he succeeded in producing the payment receipt. The possession of the flat was delivered to the complainant in August, 2002 by the petitioner which according to the complainant was incomplete. The complainant filed the complaint with the prayer that the petitioner be directed to execute the conveyance deed. Besides that some compensation for mental agony and the cost of litigation was also claimed. The plea taken by the petitioner was that the complaint was barred by limitation. It was admitted that the consideration of the flat was Rs.6,50,000/- and also contended that the unfinished work in the flat could not be done due to non-cooperation of the complainant and non-payment of the consideration amount and prayed for dismissal of the complaint. After hearing learned counsels for both the parties, the District Forum however dismissed the complaint on the ground that the complaint was barred by limitation.

The complainant challenged the said order by way of the appeal in which the impugned order is passed. In the appeal although initially the petitioner appeared but subsequently stopped attending the appellate Court and the impugned order was passed ex-parte whereby the following directions were issued: -

"Hence, taking into consideration the material on record, we are of the view that the judgment and order passed by Ld. DCDRF, Alipre in CC 307 of 2013 suffers from illegality and irregularity and it is liable to the set aside. Hence, the appeal is allowed exparte. The respondents are directed to execute and register the sale deed of conveyance in favour of the appellant for transferring the flat on acceptance of the balance consideration to the tune of Rs.2,50,000/- (Rupees two lakh fifty thousand). The entire process shall be completed within two months from the d ate of this order in default the appellant will be at liberty to get the deed executed in his favour through the LD DCDRF, Alipore on deposit of balance consideration before the Forum concerned. We pass no order as to costs."

This order is impugned before is by the petitioners. It is argued that the complaint was barred by limitation. We have given thoughtful consideration. The period of limitation once started, does not stop. Here in this case as per the agreement between the parties the petitioners were required to handover the possession of the flat and execute the sale deed. Since the sale deed was not executed by the petitioner sdespite giving the possession of the subject flat in the year 2002 for almost 11 years, the cause of action for seeking execution of the sale deed was continuing one. Therefore, the argument of the learned counsel for the petitioners that the complaint was barred by limitation is hereby rejected.

Learned counsel for the petitioners also argued that since the complainant had not paid the balance amount of Rs.2,50,000/- for almost 11 years therefore he had failed to discharge his obligation under the agreement and he should be burdened with the cost.

On enquiry whether there was agreement relating to the cost between the parties, learned counsel concedes that there was no agreement between the parties to pay penalty/interest on the non-paid/defaulted amount. In view of this, request of the learned counsel is therefore turned down. As per the agreement it was the duty of the petitioners to execute the sale deed in which they have failed. The present revision petition has no merit. Hence dismissed.