Delhi

StateCommission

CC/484/2014

MELWYN COHELO - Complainant(s)

Versus

BLUE STAR AVIATION SERVICES (INDIA) LTD. - Opp.Party(s)

13 Sep 2019

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :13.09.2019

Date of Decision : 20.09.2019

COMPLAINT NO.484/2014

In the matter of:

 

Melwyn Cohelo,

S/o. Anthony Cohelo,

R/o. C-9, Ashok Vatika,

Sahar Pipeline,

Oppo. Import Warehouse,

Andheri (East),

1.  

 

Versus

 

1. Blue Star Aviation Services (India) ltd.,

Regd. Office: S-5, 2^nd Floor, Plot No.2,

Sector-11, Manish Twin Plaza Maket,

Dwarka, Delhi-110075.

•  

Through Authorised Representative:

Om Prakash,

S/o. Shri Ram Charan,

R/o. H.NO.205, St. / Mohalla Birnai,

Gopiganj, Sant Ravidas Nagar,

UP-221303. (Business)

 

2. Om Prakash,

S/o. Shri Ram Charan,

R/o. H.NO.205, St. / Mohalla Birnai,

Gopiganj, Sant Ravidas Nagar,

1.  

 

3. Sahil Kumar,

S/o. Shri Ravinder Prasad,

R/o. H.No.53, Sector-2, Alinagar,

Lucknow, U.P.-226024.

 

4. Harish Chandra Yadav,

S/o. Shri Lal Giri Yadav,

R/o. Surya Vihar Colony,

Pinto Park-2,

Jaderuakala. Mora,

Gwalior, M.P.-474027.

 

5. Geeta Yadav,

D/o. Shri Gagu Yadav,

R/o. 309 Surya Bihar Colony,
Gwalior, M.P.474020.

 

6. Vivek Kumar,

S/o. Shri Tripurari Prasad,

R/o. G-607, Metro Vihar,

Shastri Park,

•  

 

7. Prashant,

S/o. Shri Amrit Lal,

R/o. C-377, Kidwai Nagar,

New Delhi-110023.

 

8. Susheel Kumar,

X-254/13, Gali No.5,

Brahm Puri, Near Shiv Mandir,

Shahdara, New Delhi-110053.………Opposite Parties

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

1. By this common order I shall be deciding application for condonation of delay in filing complaint in three cases bearing no.C-484/14 titled as Melwin Cohelo vs. Blue Star Aviation Services (I) Pvt. Ltd and others, CC No.497/14 titled as Gaurav vs. Blue Star Aviation Services (I) Pvt. Ltd and others and CC No.498/14 titled as Jeetender Yadava vs. Blue Star Aviation Services (I) Pvt. Ltd and others  as the question involved in all the three cases is same, OPs are same. It is only complainants who are different.
2. Facts have been taken from CC No.484/14. The complainant came forward on the allegation that he is non type rated DGCA approved Commercial Pilot License Holder and is working as Sr. Sales Executive with a Software Company. One of the main objections of the OP-1 company was to  facilitate  type rating training, line training and employment opportunities to its non type rated Pilots. OP-2 to 8 are the Directors of the OP-1. Op-8 as per MCA records  was appointed as Director of the OP-1 on 10.12.12 and was directly involved and responsible in the affairs of OP-1.
3. In March, 2011 OP-1 came out with advertisement in Times of India regarding providing International Staffing Solutions for Pilots and Aircraft Maintenance Technicians. Based on assurances held out in the said advertisement, complainant applied for facilitation in the Type Rating Training, Line Training and Employment opportunities. He was called for examination through a telephonic call by Shri S. Nigam, HR Pilot Division. The examination was conducted  on 16.12.11. After various rounds of examinations, discussions and tests the results were intimated to him vide email dated 18.12.11. The email was accompanied by  an offer letter. On 10.01.12. He deposited a demand draft of Rs.15 lakhs in favour of OP-1.
4. In terms of the letter of offer, the soft skills training was conducted for about 20 days at the office of OP-1. Further details with respect of round-2 were to be provided within next 15 days. The OPs were required to  organise with a company named Thai Flight Training Academy, Bangkok. It was assured that expected starting and completion time of training was first day of April and 31^st July, 2012, Upon completion of training satisfactorily, job was guaranteed for sixty months but OP failed to fulfil any of the assurances. None of the services as assured was provided. Once again OP-1 informed through their email dated 18.04.12 that training would start from 1^st June, 2012 with academy named Cockpit 4 U Berlin. Op failed to stand on the commitment. Once again complainant was given a false assurance that training will start from 1^st.July with Volatus academy, Rome, Italy instead of earlier strategic partners. OP also assured that advance of Rs.3 lakhs per candidates was promised. Again the OP failed to stand on its commitment.
5. On 26.06.12 he was assured that training would start from 23.07.12 with Jet  Flight and Instructor Training Academy instead of earlier strategic partners. OPs once again failed to fulfill its commitment for sending the complainant to Jet Flight. OP once again assured that complainant would be sent on 09.09.12. OP failed to clear the dues pertaining to outstanding stipend amounts in terms of the agreement executed between the parties. The same was to be received on 10.06.12 and transferred to the account of complainant on 04.07.12. OP sanctioned payment of Rs.3 lakhs per candidate. On 09.08.12 just four hours before departure of flight to London for training, OP informed complainant that training had to be cancelled at the last minute because training schedule and other formalities could not be finalised. On 24.08.12 complainant alongwith seven other Pilots left for London  with the assurances that training would start on 27.08.12. OP issued a travel card by  ICICI Bank with GB 7520 for a stay of one month from 24.08.12 to 24.09.12. He was appointed as the point of contact between OP and all candidates who had gone for  their training. On arrival to UK, to the utter shock and dismay the complainant realised that no arrangements of any sort was made regarding their training. OP refused to answer to any of the calls made by him. He alongwith other members of the group were left  stranded without any communication with the OP. Anguished and harassed by the non responsive attitude of the OP, the complainant on 13.09.11  sent an email to the OP  highlighting all the deficiencies in service and non payment of due at all end. On 13.09.11 (Sic. It should be 13.09.12) OP replied that training would finally commence from 17.09.12. Tired of repeated false assurances he and other crew members vide letter 18.09.11 sought refund of the amounts paid. The OP sent a fake transfer receipt of ICICI Bank dated 07.09.12. On 24.09.12 the members were given notice to vacate the guest house arranged by the OP. To his utter dismay and disgrace he was thrown out of the guest house due to non payment of dues. He had no other option but to leave the United Kingdoms without training or fulfilment of any of the promises. The incident left such deep impact on the minds of the complainants and other members.
6. Not only the OP cheated the complainant and other members, the OP had not paid amount due for accommodation of the members. On arrival back to India complainant alongwith other members contacted the OP on 25.09.12. They discovered that the office premises were  locked and there were several other such people who have been cheated by OP. Mr. Nitish Kumar, one of the members of the group lodged FIR No.216/12 u/s 120B/406/420 of the IPC P.S. Dwarka South. He also filed complaint with SHO Dwarka. Charge sheet was filed by Investigation Officer  before the court of Ms. Ruchika Singla, MM Dwarka Court on 24.12.12 u/s 406/420/467/471/468/120B of the IPC against Shri Harish Chandra Yadav / OP-4. Supplementary charge sheet was filed on 03.04.13 against Shri Sushil Kumar / OP-8. The said matters are still pending. Shri Sahil Kumar and Shri Om Prakash, OPs no.3 and 2 are still absconding and proceedings u/s 82 CrPC have been initiated against them.
7. The complainant’s license expired on 02.09.13. OP ruined precious 10 months out of the 5 years of the license period. Complainant spent Rs.50,000/- for renewal of the license. Complainant suffered  financial loss of Rs.15 lakhs deposited with OP plus additional expenses like interest  on loans, repeated international phone calls to OP. He is entitled to Rs.7,65,000/- on account of interest, Rs.10 lakhs on account of mental sufferings. In all he has claimed Rs.32,65,000/-. OP has committed deficiency of service.
8. United Nationals had passed resolution in April, 1985 intimating certain guidelines under which government could make law for better protection of the interest of the consumers.
9. Cause of action arose when OP issued offer letter vide email dated 18.12.11. It further arose on different dates. The cause of action is continuing one.
10. Alongwith the complaint, complainant  has filed an application for condonation of delay  in filing the complaint. It is mentioned in the application that complainant alongwith other similarly situated consumers faced fraud committed by OPs, immediately sought legal recourse by filing FIR. He has sufficient reasons to believe in the  merit of the case inspite of the unintentional delay caused in approaching this Commission. He would suffer irreparable loss and injury if the delay is not condoned. Hence he has prayed for condonation of delay.
11. OPs no.6 and 8 were served for 10.08.15 and put in appearance. Op-6 filed WS.
12. OPs no.1 to 5 and 7 were served  by publication in Statesman dated 01.06.17 and Virat Vaibhav dated 02.07.17. They did not appear and were proceeded exparte vide order dated 06.07.17. OP is wife of OP-4. However his counsel appeared on 18.01.19.
13. Before entering into merits of the case it is necessary to mention that Ops no.2 to 8 are Directors of OP-1. OP-1 is a Company which is juristic person and has separate entity, its Directors are not personally and individually liable. They are neither necessary nor proper parties as per order dated  10.10.14 passed by National Commission in CC No.302/14 titled as Sandeep Jindal vs. Unitech Ltd. & Ors. They have been unnecessarily summoned.
14. Op-6 has taken a preliminary objection that complaint is liable to be dismissed as being barred by limitation. Agreement was executed on 09.08.12 and the complaint has been filed on 09.10.14. He has left the OP-1 in March, 2012. There is arbitration clause in para-7 of the agreement. He is nominee of OP-1 and not a necessary party. On Merits he stated that he joined service with OP-1 as Accountant and was discharged in February, 2012 and transferred his share on 26.03.12. The agreement does not bear his signature. He denied rest of the paras of complaint for want of knowledge. He filed reply to application for condonation of delay, alongwith WS.
15. OP-8 has filed reply to application for condonation of delay in filing complaint. He raised preliminary objection that no cogent reason has been assigned in the application under reply. The complainant is guilty of laches. Complainant was bound to explain  each days delay beyond the prescribed period of limitation. He has been wrongly arrayed as party in his individual capacity. On merits he stated that he assumed role of Director of OP-1 only in 2012 after the alleged cause of action arose. There are no facts in the application and no sufficient cause has been shown for condonation of delay. He prayed for dismissal of the application.
16. I have gone through the material on record and heard the arguments on application for condonation of delay.  At the very outset I may mention that the application does not disclose any cause much less sufficient cause for condonation of delay in filing complaint. The application has been drafted  as it was an application for interim injunction under order 39 CPC. The complainant has pleaded that he has primafacie case and would suffer repairable losses and injury, if the delay is not condoned. What is the ground which prevented him from filing the complaint in limitation is not discernible from the application under consideration. The FIR was lodged on 26.09.12 meaning thereby that efforts for seeking remedy started in September, 2012. That being so why the present complaint was filed only on 09.10.14 is unexplained.
17. The advertisement appeared in Times of India in March, 2011, examination was conducted on 16.12.11 as mentioned in para-6 of the complaint, result was intimated to the complainant on 18.12.11. Thus the complaint has been filed after three years and there is a delay of one year in filing the complaint.
18. The complainant has tried to make out that it is a case of continuing cause of action. He has done so on the basis of subsequent communications. It is settled law that representation  do not extend limitation. This was so held by NC in RP No.26/12 titled as Sebstain M.D. Vs. M.J. Devadas decided on 13.07.12. Similar view was taken in O.P. No.55/01 titled as Hansa Wire Product Pvt. ltd. vs. United India Insurance Company decided on 18.11.11. In Jansatta Sehkari Awas Samiti I (2016) CPJ 190 NC held that notice does not give rise to cause of action and does not extend limitation. In Kandimala vs. National Insurance Company (2009) 7 SCC 768 the Hon’ble SC held that correspondence does not extend limitation.
19. In R.P.No.2618/02 titled as C.H. Vithal Reddy vs. Manager District Cooperative Central Bank decided on 04.12.02 NC held that condonation of delay in filing complaint is a serious matter. It is a departure from Limitation Act where there is no provision for condoning delay in filing suit. It is different from condonation of delay in filing appeal. In Hamid Johran vs. Abdul Salam (2001) 7 SC 573 it was held  that court never tolerate  an indolent litigant. In  Cicily Cleracal vs. Vehicle factory 4 (2012) CPJ 1 Hon’ble SC held that condonation of delay without sufficient cause will amount to substitute limitation. In Baswa Raj vs. Special Land Equisition Officer 2013 (14) SC 81 it was held that limitation has to be applied with all rigour. In SLP (C ) 37183/13 titled as Sanjay Sidhgonda vs. NIC decided on 17.12.13 delay of 13 days was not condoned.
20. The counsel for complainant relied upon decision of NC in O.P. No.48/96 titled as Bharat S. Modi vs. British Airways decided on 10.12.01. In that case the issue was  regarding filing of complaint under carriage by Air Act 1972. That can not be condoned u/s 24 (A) Consumer Protection Act. The same is not applicable to the case in hand.
21. Counsel for complainants relied upon decision of Haryana State Commission in LIC vs. Mukesh Devi I (2008) CPJ 155. There issue was that time spent before Civil Court  can not be excluded from limitation for filing the complaint under Consumer Protection Act. The same has no application.
22. Reliance has also been placed on R.P. No.2196/14 titled as Cox and Kings Ltd vs. Kalyan Kumar Biswas decided by NC on 27.11.14. That was the case of delay in filing appeal and not complaint, the delay was of only 28 days and not one year as in this case. Similarly reliance on R.P. No.2198/14 titled as Cox and Kings Ltd. vs. Behnishikha Ghatak decided on 27.11.14 is misplaced.
23. Reliance has also been placed on decision in R.P. No.3351/13 titled as Chandu Lal vs. Shekhar. That is also a case of delay in filing appeal and delay of 46 days. Similarly R.P. No.3544/13 titled as Parmod vs. Manager Dewan Housing Finance Corproation Ltd. decided  by NC on 28.10.14 pertains to condonation of delay in filing appeal.
24. In view of the above discussion I find that there is no sufficient ground for  condonation of delay in filing complaint. The application is dismissed. With this complaint must automatically stand dismissed as being barred by limitation.
25. Moreover I may mention that complainant himself has levelled serious allegations of misappropriation of heavy amount, breach of trust, cheating, forgery for which  FIR has already been lodged and a case is pending trial in Criminal Court for the last 7 years. Two of the accused are proclaimed offender. Such case involve detailed evidence including cross examination of witnesses. They can not be decided under summary procedure of Consumer Protection Act.  It was so held in Synco Industries vs. SBI AIR 2002 SC 568. In Shrish Critcar  vs. State Bank of Patiyala (IV) 2015 CPJ 154 NC held that issue of forged signature can not raised before  Consumer Court. Similar view was taken in  Reliance Industries vs. United India  1998 CPJ 13 and Rakesh Kumar vs. ICICI Prudential R.P. No.4533/13 decided by NC on 04.08.14. In P.N. Khanna vs. Bank of India II (2015) CPJ 54 NC held that forgery requires elaborate evidence and can not be decided by Consumer Court. Thus the complaint deserves to be rejected on this ground also. The complaint is dismissed.
26. Copy of the order be sent to the parties free of cost.
27. Copy of this judgement be placed on file of CC No.497/14 and CC No.498/14.
28. File be consigned to record room.

 

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)

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