O R D E R(Pronounced on 18th day of February, 2014)
D.K. JAIN, J., PRESIDENT
This appeal under Section 19 of the Consumer Protection Act, 1986 (for short “the Act”), is directed against order dated 11.12.2007 passed by the State Consumer Disputes Redressal Commission, Uttar Pradesh at Lucknow (for short “the State Commission”) in Complaint No. 91 of 1998. By the impugned order, the State Commission has allowed the complaint filed by the Army Welfare Housing Organization,(for short “the Complainant”) directing the Agra Development Authority, (for short “the Authority”) to pay to the Complainant, interest @ 14% p.a. on the amount deposited by them for purchase of land from the date of deposit of the said amount till the date of actual payment, after adjusting the amount of interest already paid @ 6% p.a.; in the event of non-payment of the balance amount within two months from the date of the order, it has been ordered that the interest payable would be @ 15% p.a.
2. The Complainant is a Housing Society, registered under the Societies Registration Act, 1860. The object of the Society is to make available to the serving as well as retired Army personnel houses on no profit no loss basis. In January, 1991 the Complainant applied to the Authority for allotment of five acres of land in Taj City – Phase-II Part-I. 20% of the total cost of the land was deposited as registration amount. Since the land was not allotted for over two years, the Complainant requested the Authority to refund the amount deposited along with interest at the bank rate of interest. There being no response, the Complainant sent a legal notice to the Authority. On receipt of the notice, the Authority refunded an amount of `26 along with interest @ 6% on the principal amount, vide a cheque dated 18.12.1993, which was duly received by the Complainant. However, on 10.08.1998, the Complainant filed a complaint against the Authority before the State Commission, in which, it claimed interest @ 18% p.a. on the aforesaid amount from January 1991 till December 1993, when the principal amount along with interest @ 6% was refunded to them.
3. The complaint was resisted by the Authority, inter alia, on the grounds that it was not maintainable as the Complainant was not a “Consumer” under the Act; having accepted the amount of refund, which included interest at the rate prescribed in the scheme, without demur, the Complainant was estopped from claiming interest at a rate more than 6% p.a.; since the scheme itself had been cancelled by the State Government the land was not acquired by the Authority and resultantly, it could not be allotted and therefore, there was no deficiency in service on the part of the Authority.
4. None of the objections raised by the Authority found favour with the State Commission. Accordingly, partly accepting the claim in the complaint, by the impugned order, the State Commission has issued the aforenoted directions. Hence the present appeal.
5. I have heard Ld. Counsel for the parties.
6. Sh. Sudhir Kulshrestha, Learned Counsel appearing for the Authority strenuously urged that the State Commission had erred in law in entertaining the complaint without specifically condoning the delay of over five years in filing the complaint, a statutory mandate under Section 24-A of the Act. To buttress the argument, Ld. Counsel placed reliance on the decisions of the Supreme Court in Haryana Urban Development Authority Vs. B.K. Sood (2006) 1 SCC 164 and State Bank of India Vs. B.S. Agriculture Industries(I) (2009) 5 SCC 121. It was asserted that in their application, filed sometime in May 1999, seeking condonation of delay in filing the complaint, the stated reasons for delay did not constitute a sufficient cause and, therefore, the delay of over five years in filing the complaint could not be condoned.
7. Mr. A.K. Tewari, Ld. Counsel appearing for the Respondent, on the other hand, supported the decision of the State Commission. It was submitted that having failed to raise any objection with regard to limitation in its written version, the Authority could not be permitted to make oral submission in this behalf. It was argued that if the scheme had been shelved and the land was not acquired, the Authority was obliged to refund the same with interest amount without waiting for a legal notice from the Complainant. It was pleaded that in view of such a conduct of the Authority, the State Commission was fully justified in awarding interest at the said rate which, in the light of the decisions of the Supreme Court wherein interest even @ 14%, had been awarded, could not be said to be very high.
8. The first question for consideration is as to whether in the absence of any objection by the Opposite Party in its written to the maintainability of the complaint under the Act on the ground of limitation, such an objection could be entertained by the State Commission by way of oral submissions?
9. Section 24-A of the Act prescribes the limitation period for admission of complaint by the Consumer Fora. It reads as follows:-
“24A. Limitation period.-(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period.
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.”
10. A bare reading of the provision shows that it is pre-emptory in nature and mandates that Fora, set up under the Act, shall admit a complaint unless it has been filed within two years from the date of accrual of cause of action. It is well settled that the Section casts a duty on a Consumer Fora to dismiss a belated complaint unless it is satisfied that the Complainant had sufficient cause in not preferring the same within the prescribed time.
11. In B.S. Agriculture
“The expression, “shall not admit a complaint” occurring in Section 24-A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within the limitation period prescribed there under.
As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24- give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint no merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.” (Emphasis supplied)
12. For coming to the above-extracted conclusion, the Supreme Court referred to its earlier decision in Gannmani Anasuya & others Vs. Parvatini Amareanra Chwdhary & others (2007) 10 SCC 296 wherein, with reference to Section 3 of the Limitation Act, it was emphasized that it is the duty of the Court to whether the suit is barred by limitation or not, regardless of the fact whether such a plea has been raised by the parties. Such jurisdictional fact need not be even pleaded.
13. It is thus, trite law that before admitting a complaint under the Act, it is incumbent upon a Consumer Forum to examine whether the complaint has been filed within a period of two years from the date on which, the cause of action had arisen, regardless of the fact whether such an objection has been raised by the Opposite Party or not. If the complaint is filed beyond the said period of limitation, the Forum must record its satisfaction that the Complainant had sufficient cause for not filing the complaint within time. Failure to do so would vitiate its decision on merits of the complaint.
14. In the instant case, it is evident from the impugned order that though the State Commission has held that there has been no delay, in filing the For the sake of ready reference, its observations on the issue are extracted below:
“There has been no delay. Demands to refund the aforesaid deposited sum of money had continuously been made vide letters dated 27.07.92, 31.12.92, 3.2.93,14.05.93 and 9th June, 93 and when the organization did not succeed in any manner whatsoever, then this complaint was filed by the complainant/organization against the insensitive authority. Hence, there is no question of causing any delay and until a sum of money belonging to the complainant organization remains due to be paid by army organization or persons, the cause for receiving the said sum of money back exists, and as has been observed in the ruling contained in the decision reported in 2006 Apex court judgment 310 (SC) that “ the procedural law is not mandatory” and as has been held in the ruling contained in the decision reported in (1987) 11 SCC 107 (tilted as “Collector, Land Acquisition Anantnag and other Vs. Mustmat Kateeji and others) by the Hon’ble Supreme Court that the respect of the officers, dispensing justice, is for the doing away of unjustice, and not for legalizing the injustice, and so far as there is contradiction between the material law and the procedural law, the material law will prevails. In such a circumstance, the organization, which is a welfare one and is meant for helping the army men and their widows, ought to get material justice: there is no doubt about it.”
14. It is manifest that the observations are too general in nature and do not satisfy the mandate of Section 24-A of the Act. The State Commission has failed to address itself on the question as to when the cause of action for filing the complaint had arisen; whether the complaint had been filed within two years of that date and if not, whether the Complainant had made out a sufficient cause for not filing the complaint within the said time.
15. Having come to the conclusion that the order of the State Commission suffers from the vice of non application of mind on the question of limitation and is, therefore, unsustainable the necessary consequence would be to set aside the same and remit the matter back to the State Commission for adjudication on the application filed by the Complainant for condondation of delay in filing the complaint. However, bearing in mind the fact that the complaint was filed as far back as in the year 1998, I feel that in order to cut short the life of litigation, on facts at hand, it would be appropriate and expedient if the said question is dealt with at this stage itself, more so when for deciding the question no further evidence is required.
16. It is true that the law of limitation founded on public policy, is not enacted with the object of destroying the rights of the parties but to ensure that a party approaches the Court for vindication of his rights without unnecessary delay to avoid an unending uncertainty. It is also well settled that the expression “sufficient cause” used in Section 5 of the Limitation Act, 1963 and other Statutes, like in Section 24 A of the Act, is to be construed in a meaningful manner, which subserves the ends of justice and not strictly, which may result in a meritorious matter being thrown out at the very threshold, defeating the cause of justice. Nevertheless, while interpreting the expression “sufficient cause” the spirit and the philosophy of the legislatively lifespan for a legal remedy for redressal of the legal injury suffered has to be borne in mind.
17. In N. Balakrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123, while laying down broad guidelines for condonation of delay, with reference to Section 5 of the Limitation Act, 1963, the Hon’ble Supreme Court has observed as under:
“9. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.
11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss.” (Emphasis supplied)
18. Recently in Anshul Aggarwal Vs. New Okhla Industrial Development Authority (2011) 14 SCC 579, while declining to condone delay of 233 days in filing appeal against an order of this Commission, the Supreme Court has observed thus:-
“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this court was to entertain highly belated petitions filed against the orders of the consumer foras.”
19. Bearing in mind the aforenoted broad principle, I may advert to the fact present case. The explanation furnished in the application praying for condonation of delay, filed after nine months of the filing of the complaint reads as follows:-
“2. That the complainant’s management in Mar 1995 had taken the decision for filing the complaint against Agra Development Authority (ADA). Accordingly the draft complaint against the opposite party was prepared by the Advocate of the complainant at Delhi on 15 May 95. However, due to an oversight the verification of the complaint could not be done for the reason that the officer who was handling this case i.e. Col J Natarajan was posted out of AWHO in the month of Dec 95.
3. That on account of the transfer of the aforesaid officer the files concerning this case were untraceable and were discovered by the successor of Col J Natarajan in Jul 97 and case was thereafter prepared and filed in Jul 98.
4. That for the reasons above the delay in filing of the aforesaid complaint is not deliberate but due to the bonafide reasons as explained above.”
20. The explanation is wholly unsatisfactory. It is evident from the afore-extracted paragraphs that the Complainant was fully conscious of the fact that the complaint under the Act was to be filed within a period of two years of the date of tender of cheque by the Authority and its acceptance by the Complainant on 18.12.1993, when their prayer for payment of interest @ 18% was deemed to have been turned down by the Authority and interest @ 6% p.a. was paid along with the principal amount. It is pertinent to note that the cheque for the amount refunded was accepted and proceeds were realized by the Complainant immediately thereafter without any protest. Thus, of action in respect of claim for higher rate of interest
arose on 18.12.1993. The complaint having been filed on 10.08.1998 was barred by limitation. The plea that the management of the Complainant society took decision to file complaint in the month of March 1995, the complaint was drafted by the Counsel on 15.5.1995 but the same was not verified by the authorised officer till December 1995, when he is stated to have been posted out of the office of the Complainant, in my view, is no explanation for the delay in filing the complaint. Moreover, even thereafter for almost two years neither the management nor the successor authorised bothered to trace the file and even if the stand of the Complainant was to be believed, still the complaint was filed after a lapse of one year of the tracing of the file. I am constrained to observe that the explanation furnished is not only I have, therefore, no hesitation in holding that the Complainant has failed to show sufficient cause for condonation inordinate delay of over five years in filing the complaint. The complaint was miserably barred by limitation and was liable to be dismissed on that ground alone.
21. For the view I have taken above, it is unnecessary to examine the claim made in the complaint on merits.
22. Resultantly, the appeal is allowed; the impugned order is set aside and the complaint is dismissed on the ground of limitation, leaving the parties to bear their own costs.
