Punjab

Ludhiana

CC/15/433

Sachin Jain - Complainant(s)

Versus

Bajaj Finance Pvt.Ltd. - Opp.Party(s)

Harpreet Singh Adv.

02 Feb 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No.433 of 17.07.2015

Date of Decision            :   02.02.2017

 

Sachin Jain aged 36 years son of Sh.Vinod Jain, r/o 74/1, Street No.4, New Shastri Nagar, Basti Jodhewal, Ludhiana.

Complainant

Versus

 

1.Bajaj Finance Pvt. Ltd., First and Second Floor, SCO-35-G, Bhai Randhir Singh Nagar, Block-G, Opposite Police Station, Ludhiana 141002, through its Manager/branch Manager/Incharge/Director/Authorized signatory.

2.Rohit Electronics World, 933/3B, Street No.1, New Deep Nagar, Civil Lines, Ludhiana through its Manager/Incharge/authorized signatory.

Opposite parties

 

APPLICATION FOR DISMISSSAL OF COMPLAINT BEING 

BARRED BY LAW OF LIMITATION

 

QUORUM:

 

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :           Sh.Harpreet Singh, Advocate

For OP1                         :           Sh.Sumit Luthra, Advocate

For OP2                         :           Sh.Rohit Chhabra, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Application for dismissal of complaint, being barred by law of limitation filed by OP1 on 28.10.2015 by claiming that complainant alleged in the complaint that some fraud has been committed with him by Ops in 2011. It is claimed that as per case of the complainant, he got financed one LED and one refrigerator on his passbook, but when he got knowledge of this fact, then he approached  the bank for getting the entries incorporated in the passbook. At that time, complainant got knowledge as if EMIs of LED and refrigerator were debited from his account till March 2012 and thereafter, no installments were paid against financed items. Thereafter, EMIs continued to be dishonoured for the reasons “Funds insufficient”. Complainant got knowledge of this fact in 2012 and thereafter, no action was taken by him for the alleged committed fraud.

2.                In reply, it is claimed that application is not maintainable because the same has been filed just for delaying the proceedings. Admittedly, the complaint filed by claiming as if fraud has been committed with complainant in 2011 and the factum of fraud came to his knowledge, when he went for getting the entries incorporated in the passbook. Further, it is claimed that on approach to OP1, complainant got knowledge as if the amount of EMIs had been withdrawn mistakenly from the account of the complainant. Complainant was advised to close the account and settle all the claims. It is admitted that LED and refrigerator were financed by OP1 in 2011 and EMIs were deposited till March 2012 and thereafter, no installments were paid against the financed items. Further, it is admitted that the complainant got knowledge about the factum of fraud in 2012, but it is denied that action was not taken by the complainant against the committed fraud. In May 2015, when the complainant went to HDFC Bank for getting financed a new car, then he was astonished to know that the bank has kept his account in CIBIL, but there was no entry regarding this CIBIL, where two amounts i.e. Rs.22,607/-      and Rs.19,998/- were overdue in his account. Thereafter, complainant went to the office of OP1, where he met with Mr.Suresh in the recovery branch and asked him about CIBIL entries. At that time, the complainant disclosed as if fraud has been committed with him. Thereafter, the complainant was referred to Mr.Kawal, who is the incharge of the fraud agency, but said Mr.Kawal instead of giving reply, threatened the complainant with dire consequences.

3.                Arguments on this application were heard. 

4.        Perusal of complaint reveals that as per allegations, under conspiracy of cheating, OP1 altered the address of complainant given in his passbook on 5.12.2011. Further, in para no.2 of complaint itself, it is mentioned that Toshiba LED 42” and LG Refrigerator were got financed by the complainant on payment of installments. It is claimed in para no.3 of the complaint that complainant got knowledge of entries in his passbook, when he visited the bank. It is claimed that EMIs amount was debited from the bank account of the complainant by misusing his passbook. In the complaint, nowhere it is mentioned as to when the complainant got knowledge of commission of this fraud by misuse of his passbook i.e.of the complainant. However,    in para no.4 of reply to application for dismissal of complaint (as submitted by the complainant on 24.12.2015), it is specifically mentioned that the complainant got knowledge about the factum of fraud in 2012. If the factum of fraud came to the knowledge of the complainant in 2012, then complaint must have been filed within 2 years from the accrual of cause of action in 2012, when fraud detected to be committed by Ops with him. However, this complaint filed on 17.7.2015 i.e. after at least more than 3 ½ years of detection of the alleged fraud. No application for condonation of delay has been filed with the complaint for explaining the circumstances as to why the complaint could not be filed earlier.

5.                As per law laid down in case Babulal Kumhar vs. Force Motors Limited through Manager and others-2015(1)Consumer Law Today-398  (Rajasthan State Consumer Disputes Redressal Commission), complaint can be filed after two years of expiry of warranty period of one year. So, virtually complaint can be filed within two years from the date of accrual of cause of action. Question of limitation being a question of law can be raised at any stage of pending proceedings. In view of Section 24-A of The Consumer Protection Act, 1986, it is obligatory to decide that question of limitation by Consumer Forum. However, before dismissing the complaint as time barred, an opportunity of hearing should be given to the complainant, who can seek condonation of delay u/s 24-A(2) of the Act by showing there was sufficient cause for not filing the complaint within the prescribed period. The term cause of action is cause of action,which gives occasion for and forms the foundations of the suit, which has to be decided on the facts of each case is the proposition of law laid down in case of M/s State India Express (Regd.) vs. M/s. Ranutrol Limited and others-2014(1)CLT-8-9(N.C.).

6.                In the case before us, no application for condonation of delay has been filed and nor any sufficiency of cause  shown as to why the complaint not filed within two years from the accrual of cause of action i.e. detection of fraud. If complainant got knowledge of commission of fraud by Ops with him in 2012, then he should have filed this complaint by 2014 at least, but that is not done as discussed above and as such, complaint being not filed within two years of accrual of cause of action, merits dismissal, being barred by limitation.

7.                Cause of action arose with repudiation of claim and as such, contention that limitation period will kept on lingering with every fresh representation is not acceptable. Making representation cannot stop limitation from running and as such, it is held that in case of SAGO Packaging Pvt. Ltd vs. New India Assurance Co.Ltd and another-III(2015)CPJ-5B(N.C.)(W.B) that sufficiency of cause of action is not made out for delayed filing of the case just on account of filing of representation after representation. Ratio of this case is fully applicable to the facts of the present case and as such, filing of representation orally or otherwise will not extend the period of limitation, or will show the sufficiency of cause in not filing the complaint within the limitation. Rather, as and when the complainant detected the fraud in 2012 as per his own assertions, then he should have filed the complaint within 2 years there from, but that is not done and as such, certainly application for dismissal of complaint being barred by limitation merits acceptance and the same is hereby allowed. Consequently, complaint dismissed being barred by limitation. Copies of this order be made available to the parties free of costs as per rules. File be indexed and consigned to record room.

 

                             (Param Jit Singh Bewli)                                 (G.K.Dhir)

                        Member                                                       President

Announced in Open Forum

Dated:02.02.2017

Gurpreet Sharma.