MS. NIPUR CHANDNA, MEMBER
ORDER
12.03.2024
1. A complaint under Section 35 of Consumer Protection Act filed. In brief the facts are that complainant booked one 2BHK flat with OP-1 on the pursuation of OP-2 and paid a sum of Rs. 371000/- against which OP-2 issued the receipt in the name of OP-1 dated 03.03.2014. At the time of booking OP-2 promised to give the ownership documents as well as other requisite documents before making payment of installments. Complainant asked OP to provide the relevant documents but under one pretext or other OP-2 postponed the issue. Finally vide letter dated 03.09.2015 complainant asked OPs to provide the ownership documents or to refund the entire amount paid by her with interest @ 18% p.a.
2. It is further alleged by the complainant that after her continuous follow up finally OP-2 issued some cheques from his own account as well as from the account of OP-1 with the following dates 03.05.2016, 17.01.2017, 24.01.2017, 04.03.2019, 28.02.2019 and 24.11.2019 for refunding the payments received by him against the aforesaid booking, however, the entire cheques issued by OPs stand bounce due to insufficient fund. As such complainant filed the complaint under section 138 of Negotiable Instrument Act with Ld. M.M Tis Hazari. It is further alleged by the complainant that during trial before Ld. M.M OP-2 admitted the liability and deposited the certain amount in the bank account of the complainant jointly held with her husband during the pendency of the proceedings. It is further alleged by the complainant that on 08.07.2023 Ld. M.M passed the order thereby making various wrong observation imputing to the complainant and as such the R.P was filed against the order dated 08.07.2023 which was duly allowed by Ld. ADJ and the order dated 08.07.2023 was set aside vide order dated 26.08.2023.
3. It is further alleged by the complainant that after the order dated 08.07.2023 OPs stopped making payment as such complainant served legal notice dated 13.07.2023 OPs neither replied the legal notice nor had paid the balance amount this act of OPs squarely covered under the definition of deficiency in service, hence, this complaint.
4. The present complaint case is on admission stage. We have heard Ld. Counsel for complainant Sh. Uday Raj Dubey on admission as well as limitation and have perused the record.
5. It is submitted by Ld. Counsel for complainant that after the order dated 08.07.2023 OPs failed to pay the balance amount, hence, the present complaint case is well within limitation. Complainant had placed on record copy of brochure, copy of payment receipt, copy of letter issued by OP, certified copy of the proceeding before Ld. M.M, copy of legal notice dated 13.07.2023, copy of statement of account in support of his contention.
6. Let us peruse the relevant provision in respect of limitation provided under Consumer Protection Act, 2019.
As per section 69 of Consumer Protection Act, 2019: -
- 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.
- Notwithstanding anything contained in subsection (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 Comission , 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, as the case may be records its reason form condoning such delay.
7. A perusal of the aforesaid statutory position reflects that the complaint should be preferred within a period of two years of the accrual of cause of action.
8. Admittedly, the complainant had deposited a sum of Rs. 3,71,000/- with OP on 03.03.2014. On the request of refund, against the deposit OP issued cheques dated 03.05.2016, 17.01.2017, 24.01.2017, 04.03.2019, 28.02.2019 and 24.11.2019 for refunding the payments received by him against the aforesaid booking. Admittedly, all the cheques mentioned herein above got bounced due to insufficient fund, hence, the cause of action for filing the present complaint arose finally on 24.11.2019.
Thereafter, complainant approached Ld. M.M and initiate the proceeding u/s 138 of Negotiable Instruments Act. During the pendency of the proceeding OPs paid certain amount to the complainant (not clarified by complainant in her pleading) and thereafter OPs stopped making the payment after the order dated 08.07.2023 of Ld. M.M.
9. Complainant has placed on record the certified copy of the order dated 08.07.2023 of Ld. M.M Tis Hazari. We have carefully gone through the order and found that the proceedings were pending before Ld. M.M in the cheque bouncing case and was adjourned for 12.09.2023, thereafter no further information in respect to the criminal case is put forth by the complainant.
10. The complainant has alleged that the present complaint case is well within limitation by taking the shelter of order dated 08.07.2023 of Ld. M.M Tis Hazari, Delhi. The filing of criminal complaint u/s 138 Negotiable Instruments Act before Ld. M.M is an independent legal proceedings. The filing of Consumer Complaint under CP Act, 2019 is an independent proceedings. The cause of action for filing the consumer complaint as per facts arose finally on 24.11.2019 when the cheque issued by OP dishonored. It cannot be extended by filing any other independent legal proceedings. Admittedly, the proceeding before Ld. M.M is of cheque bouncing case and the complainant approached this Commission for deficiency in service on the part of OPs. Admittedly, the OP-2 issued last cheque dated 24.11.2019 to the complainant against the money deposited by her. Hence, in our view the cause of action for filing the present complaint arose finally on 24.11.2019. The complainant approached this Commission and filed the present complaint on 19.02.2024 i.e. after 4 years and 3 months of the accrual of the substantive cause of action for filing the present complaint. The complainant ought to have file the present complaint within two years of the accrual of cause of action but the complainant failed to do so.
11. In view of the above discussion, we are of the considered opinion that substantive cause of action for filing the present complaint arose 24.11.2019, the complainant ought to have file the present complaint within two year of the accrual of cause of action. The complainant has filed the present complaint on 19.02.2024 i.e after the delay of 4 years and 3 months, the present complaint is therefore barred by limitation, hence, dismissed. File be consigned to record room.
12. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving the application from the parties in the registry. Order be uploaded on www.confonet.nic.in.
Announced in open Commission on 12.03.2024.
Sanjay Kumar Nipur Chandna Rajesh
President Member Member
