Delhi

West Delhi

CC/22/325

MANOJ TANWAR - Complainant(s)

Versus

BAJAJ FINSERV - Opp.Party(s)

29 Sep 2022

ORDER

BEFORE THE CONSUME DISPUTE REDRESSAL FORUM,

WEST DISTRICT, JANAKPURI,

NEW DELHI

 

CC No.   325/22

 

MANOJ KUMAR

S/O  SHRI KIRSHAN,BHOOP SINGH GALI

R/O  WZ- 1595 NANGAL RAYA

NEW DELHI-110046                                                                    COMPLAINANT

 

Versus

 

Manager/ Director

Bajaj Finserv Company Pvt. Ltd.

1^st & 2^nd Floor, Unit No. 204,205,206 & 207,

V-4, Plaza, KP Block, Plot No. 16,

Pitam Pura, Delhi-110034.

 

Manager/ Director

Bajaj Finserv Company Pvt. Ltd.

K10 3A-K103B, First Floor,

Above 24 Seven Store, Lajpat Nagar-II

New Delhi-110024.

 

Manager/ Director

 

Kapila Electronics Pvt Ltd.

B-1/6, Community Centre,

B-Block, Janakpuri, New Delhi-110058.

 

Coram:                                                                             

1. SONICA MEHROTRA (PRESIDENT)
2. RICHA JINDAL (MEMBER)
3. ANIL KOUSHAL (MEMBER)

Date of Institution: 22/08/2022

Judgment reserved on:20/09/2022

Date of Decision:29/09/2022

 

Order passed by Ms. Richa Jindal, Member

 

 

 

 

 

ORDER

1. That the complainant has filed a present complaint under section 25 of the CPA Act, 2019 alleging deficiency service on the part of Ops and claims compensation.

 

1. The opposite party is a branch of Kapila electronics ship, JanakpuriNewDelhi, which provides various types of electronic items and related services to its customers under the rules and guidelines made by the Delhi government and has its office at the above-mentioned address,

 

2. The complainant is the customer of Kapila electronic shop Janakpuri New Delhi as provided by the opposite party and had purchasedan Air conditioner (Godrej window A.C 1.5 GWC 18GG 2WIM) of Rs. 16000/-With invoice no 11273 on 21.03 2010 from opposite party no. 3 and because of the acts of opposite parties’the complainant has suffered a great loss and injuries due to unfair trade practices as indulged into and deficiency in services provided by the opposite party and such complainant is competent as defined under the definition of consumer under consumer protection Act. 2019 for the present complaint against the opposite parties.
3. On 21.03.2010,the complainant agrees to purchase an air conditioner witha two-year warranty on loan terms which collaborated with Bajaj finance with the concerned Kapila electronics. Accordingly, Kapila electronics gave the complainant a loan term sheet chart of 12 months.Hence the complainant’s loan account number allotted was 1010cd700036283. This chart very clearly mentioned the amount of EMIRs 1,333 /- for 12 months.

 

4. The complainant paid 4 instalments in advance of Rs 5,333 card payment which was deducted via ECS from the complainant’s account and the balance 8 instalments of Rs. 1,3444 were also paid. Finally, the last instalment was paid on 05/12/2010 of Rs 1,334/-.

 

5. The complainant has already cleared his dues via the last instalment as mentioned above in chart details and passbook entries. But still,the complainant has been getting calls from OP to clear his loan amount. On asking the tele caller they replied that this mobile number is mentioned in loan account number 401196419 against customer id 122913. But the loan account number of the complaint is 4010cd00036283 and that loan amount was taken from OP. Instead of OP, the tele calleralways confirmed the name, pan and mobile number are matching with the complainant except the address mentioned as house no 391, Pooth Kalan village, near Yogesh medical store, Delhi-110086. The complainant has not taken this loan from OP, still, the OP is calling and harassing the complainant to pay the loan taken by someone else also named ManojKumar and not the complainant but also his civil score was degraded due to the same. There was a great deficiency on the part of OPs.

 

6. The complainant admittedly cleared all instalments even the OP telesales executive daily harassing complainant by telephone call, even the recovery agentseveral time visits to OP’s home and abuse his family members also for the complainant several time contact to police officials but the complainant did not get a sufficient response from a police official.

 

7. Now complainant has no option but to issue a legal notice and thereafter file a case against all of the departments because of a minor mistake of the wrong number thus complainant suffered a monetary loss as well as financial loss from 2010 to till now 2022.

 

8. The complainant also faced a big loss in business, because the recovery agent used to visitthe complainant’s office and abusedthe complainant in front of customers, thereafter complainant’s customer deal was cancelled at that time because of bad manners ship.after facing a lot of harassment throughvariousincidents, the complainant also made telephonic calls many times to OP but no satisfactory result comes from OP side.

 

1. Since the complainant spent a long period of harassment, deceived and kept in abeyance by the OP. Now the complainant feels very destitute from the opposite party side. The complainant explainsto OP many timesabout the wrong committed by them to him. Because unfortunately the name of the defaulter, as well as him in a statement of account of OP, are the same,due to which the complainant’sphone number was mentioned in the loan summary of the defaulter. Hence this complaint through which the complainant sought following relief:

 

1. direct the opposite parties to correct the name in the loan chart summary and make calls to the correct person instead of the complainant.
10. directs the opposite parties to pay compensation because the complainant is suffering difficulties from 2010 to till and also directed to pay legal expenses for the present case which is calculated as Rs 4,00,000  (Rs. four lakh rupees only.)

 

2. After going through the material placed on record, without going into merits, it reveals that the main question involved in the present complaint is whether the present Complaint is barred by limitation under section 69 A of the Consumer Protection Act, 2019. Clearly, the only aspect for consideration before us is whether the Complainant is barred by a limitation or not.

 

3. After going through the material placed on record, it reveals that the main question involved in the present complaint is whether the present Complaint is barred by limitation under section 69 of the Consumer Protection Act, 2019.

 

4. Clearly, the only aspect for consideration before us is whether the Complainant is barred by a limitation or not.

 

5. As per the law of land, it is already settled that the issue of maintainability can be decided at any stage. Reliance is placed on the following judgements:-

6. HON'BLE SUPREME COURT in the case titled “ Hewlett Packard India Ltd. Vs Shri Ramachander Gehlot” in CA No. 7107/2003 decided on 16.02.2004 held that

"The issue of maintainability has to be decided before admitting or hearing the matter on merit.”

 

8.  in FIRST APPEAL NO. 337 OF 2017 in a case titled “KOSHY VARGHESE THAVALATHI HOUSE, MELE VETTIPURAM, PATHANAMTHITTA Versus HDFC BANK LTD. & 2 ORS.” Held that

“ It is settled law that the question in which law point is involved can be decided at any stage of the proceedings of the case.In view of the above, the present Appeal as also the Complaint filed by the Appellant/Complainant before the State Commission is dismissed as being not maintainable with no order as to cost.”

 

6. As Section 69 of the Act, 2019 prescribes a limitation period for admission of a complaint by the Consumer Commission, which states that “

(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 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 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.

 

7. A perusal of the record shows that the present complaint was filed in February 2022. It also said the matter was listed on 4/3/2022 for the first time before this commission.

 

8.   To decide the preliminary issue, we are guided by the judgement of Hon’ble NCDRC on a similar issue in the case of Kishore Shriram Sathe vs Vivek Gajanan Joshi on 1 October 2013 in REVISION PETITION No. 1953 of 2011 held that

                    “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 the 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 24A and give effect to it. If the complaint is barred by time and yet the consumer forum decides the complaint on merits, the forum would be committing illegality. Therefore, the aggrieved party would be entitled to have such an order set aside.

 

9. In Union of India and Another v. British India Corporation Ltd. and Others, (2003) 9 SCC 50,

 

“while dealing with an aspect of limitation for an application for refund this Court held that the question of limitation was a mandate to the forum and, irrespective of the fact whether it was raised or not, the forum must consider and apply it.”

 

10. In Haryana Urban Development Authority v. B.K. Sood, (2006) 1 SCC 164, this Court while dealing with the same provision viz., Section 24A of the Act, 1986 held:

 

"10. Section 24-A of the Consumer Protection Act, 1986 expressly casts a duty on the Commission admitting a complaint, to dismiss a complaint unless the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that the complainant had sufficient cause for not filing the complaint within the period of two years from the date on which the cause of action had arisen.

The section debars any fora set up under the Act, admitting a complaint unless the complaint is filed within two years from the date of which the cause of action has arisen. Neither the National Commission nor the State Commission had considered the preliminary objections raised by the appellant that the claim of the respondent was barred by time.

Furthermore, the complaint before the State Commission was filed by the respondent in 1997, ten years after the taking of possession. This was eight years after the cause of alleged damage commenced and three years after that cause ceased. There was not even any prayer by the respondent in his complaint about condoning the delay.

Therefore, the claim of the respondent on the basis of the allegations contained in the complaint was clearly barred by limitation as the two-year period prescribed by Section 24-A of the Act had expired much before the complaint was admitted by the State Commission. This finding is sufficient for allowing the appeal."

 

 

11.   In the case of GannmaniAnasuya and Others v. ParvatiniAmarendra Chowdhary and Others, (2007) 10 SCC 296, this Court highlighted Section 3 of the Limitation Act that

 

“It is for the court to determine the question as to whether the suit is barred by limitation or not irrespective of the fact that as to whether such a plea has been raised by the parties; such a jurisdictional fact need not even be pleaded.”

 

12.   The Supreme Court affirmed the following in the case of State Bank of India v B. S. Agriculture Industries (I) [(2009) 5 SCC 121]:

 

“ As far as the present case is concerned, at the first available opportunity in the written statement itself, the Bank raised the plea that the complaint was barred by limitation. However, the objection with regard to limitation remained unnoticed by all the three fora, namely, District Forum, State Commission and National Commission. Since the question relating to limitation goes to the root of the matter and may render the order illegal, we would now see whether the complaint was filed within time i.e., within two years of accrual of the cause of action. The complaint having been held time-barred, this plea is not of much significance.

 

As a result, the appeal is allowed. In addition, the decision of the National Commission dated October 1, 2001, affirming the orders of State Commission and District Forum, is set aside. The cis dismissed as time-barred. The parties shall bear their own costs.”

 

13.   In N. Manohar Reddy v. Happy Farm and Resorts, I (2014) CPJ 149 (NC), Hon'ble National Commission held thus:-

"16. This Section does not help a person who is guilty of negligence, laches or inaction. The test of good faith is a real and bona fide belief of the plaintiff that he could institute the proceedings in the Court where he first instituted it.

 

15.   National Consumer Disputes Redressal Commission in case title Vinod Kumar Kataria vs ARUFA” in First Appeal No.1201 of 2017 decided on 14/09/2017 in which it was observed by the Hon'ble National Commission that "period of delay is to be counted from the knowledge of the deficiency.

16.   This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in a matter where the special courts/tribunals have been constituted to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the court must keep in mind the special period of limitation prescribed under the statute (s).

17.   Further the Hon’ble Supreme Court in case title “CicilyKallarackal Vs Vehicle Factory IV (2012) CPJ I (SC)” observed that

In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.

18.     In Ram Lal & others Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed:-

It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right.

19.     In R.B. Ramlingam vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been observed thus ;

We hold that in every case the Court has to examine whether the delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.

20.     Hon'ble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay in Oriental Aroma Chemical Industries Ltd. vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 as under;

We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitations with the object of destroying the rights of the parties but ensures that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for a redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing of the remedy within the stipulated time.

21.     The Hon’ble National Commission in the recent judgement of Hema Hitesh Shah &Anr. Vs. HDFC Bank III (2022) CPJ 63 (NC) held in a case

“Where Cause of action means the bundle of facts which give rise to an issue between the parties. In this case, the cause of action arose in the year 2008.  Now the question is whether subsequent communications between the parties gave rise to a fresh cause of action with each communication.  The answer is ‘No’.  The Hon’ble Supreme Court in the case of Inder Singh Rekhi Vs. DDA (1988) 2 SCC 338 has expressly observed that a party cannot postpone the accrual of the cause of action by writing reminders or sending reminders.” and also in the case of Geo Miller & Co. (P) Ltd. Vs. Rajasthan Vidyut Uptadan Nigam Ltd. (2020) 14 SCC 643 has observed that, “Mere correspondence of the appellant by way of writing letters/reminders to the respondent after this date would not extend the time of limitation’.”

 

22.   During the arguments on maintainability, specific query was raised by the bench with regard to the continuous cause of action as agitated by the complainant, hence the complainant filed an application along with certain documents such as show cause notice dated 9/06/2022 and 10/08/2022 issued by OP. perusal of those document clearly shows that the address of the complainant, as well as the address of the notice, was totally different. In fact loan account no. is also different. In these circumstances, it is clearly established that the complainant and the defaulter/notice are two different persons. Hence the complainant failed to show any cause of action in his favour.  

23.   in view of the above judgements it is settled law that the act of communication between the parties after the cause of action has arisen does not amount to a continuous cause of action.  Whenever a cause of action starts running, it continues and the remedy is to be sought within the prescribed period of limitation.  It is not the cause of action which was a continuous one.  The wrong if any, was done by the respondent as alleged in the year 2015 for which the remedy had been sought by the complainants by filing the complaint in the year 2022.  It is not such type of cause of action which is continuous in the sense that the opposite party/respondent was required to continue to do.  Certain causes of actions are continuous and these are of the type which put other parties to continue to abide by commitment.  In this case, an act of deficiency was already committed by the opposite party/respondent in the year 2015. The act of alleged deficiency was completed in 2015 only.  It is not a continuous cause of action; it cannot be said that it continued after 2008.  No communication can give rise to a fresh cause of action The present complaint has no merit and the same is dismissed in limine with no order as to costs.  

24.   It would be pertinent to begin our discussion by referring to Section 24 A of the Consumer Protection Act, 1986. It would be seen from the aforesaid provision that it is peremptory in nature and requires the consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of the cause of action. Admittedly the present complaint has been filed by the complaint almost Seven years after the cause of the alleged deficiency of service. There was not even any prayer by the complainant in his complaint about condoning the delay in filing the present complaint.

 

25.    It is a settled legal proposition that the law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim "dura lex sed lex" which means "the law is hard but it is the law", stands attractive in such a situation. It has consistently been held that "inconvenience is not" a decisive factor to be considered while interpreting a statute.

 

26.   In the light of the judgement discussed above & the legal proposition, we hold that with regard to the question of limitation neither the facts mentioned in the complaint nor any argument made by the complainant justify the inordinate delay in filing the complaint on 23.08.2022. We therefore dismiss the present complaint being barred by limitation.

 

27.   In view of the law so laid down by the Hon'ble National Commission, the complainant cannot be held to be a "consumer" and the complaint filed by her does not fall within the purview of the Consumer Protection Act, 2019. The same could not have been entertained by the District Commission and is liable to be dismissed for want of jurisdiction.

 

28.   It would be pertinent to begin our discussion by referring to Section 69 of the Consumer Protection Act, 2019. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of the cause of action. An admittedly present complaint has been filed by the complaint almost eight years after the cause of the alleged disconnection of electricity. There was not even any prayer by the complainant in his complaint about condoning the delay in filing the present complaint.

 

29.   Admittedly first relief sought by the complainant can be sought through filing an appropriate case in the competent court. It is well-settled law that Consumer Protection Act is not a General Law but a Special law that has been enacted by Parliament especially to protect the interest of consumers only as held by Hon’ble Apex Court in case title “Indian Oil Corporation Ltd. Vs Shree Ganesh Petroleum Rajguru” reported in (2022) 4 SCC 463.

 

30.   Further, second relief sought by the complainant is with regard to compensation. As far as, compensation claimed by the complainant to the tune of 4 Lakh, we are guided by the judgement of Hon’ble NCDRC on a similar issue in the case Synco Industries vs State Bank of Bikaner and Jaipur 2002 (3) CPR 105 (SC) held as under Where the complainant has raised consumer dispute against Government bodies or insurance companies and sought damages in the sum of Rs. 4,00,000/- (four lakh) for covering the cost of travel and other expenses incurred by the complainant, the Supreme Court upholding the order of the National Commission held that it was not a fit case to be tried under the consumer protection act. Supreme Court however gave liberty to the complainant to approach the civil court. The Supreme Court further held that “The complainant had not approached the civil court obviously because before the consumer forum any figure in damages could be claimed without paying court fee. The Supreme court, therefore, held that the filing of the complaint in the present case amounted to an abuse of process of Consumer Forum.”

 

31.     In Bombay Dyeing and Mfg. Co. Ltd. v. Union Bank of India I (2001) CPJ 1 (NC), this Commission referred to another problem of clogging of the wheels of justice in Consumer Courts was also considered and in substance observed why money bags should abandon the remedy by the Civil Court and seek justice from the Consumer Courts by passing the Civil Courts, all together and that too without paying the Court-fee.

 

32.   Let a copy of this order be given to the complainant free of cost after receiving the application for the certified copy as per the direction received from the Hon’ble State Commission.

 

33.   File be consigned to record room.

 

34.   Announced on 29.09.2022.

 

 

Richa Jindal                              Anil Kumar Koushal                   Sonica Mehrotra

(Member)                                            (Member)                         (President)