Delhi

East Delhi

CC/232/2017

HARISH MENON - Complainant(s)

Versus

BSES - Opp.Party(s)

19 Feb 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. NO. 232/17

 

Shri Harish Menon

S/o Shri P.K. Kutty

R/o Flat No. 40-D

SFS DDA Flats

Pocket-C, Sector-G

Kondli Gharoli, Delhi – 110 096                                         ….Complainant

 

Vs.    

 

BSES Yamuna Power Limited

Regd. Off.: Shakti Kiran Building

Karkardooma, New Delhi – 110 092                                      …Opponent

 

Date of Institution: 19.06.2017

Date of Order: 19.02.2020

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By: Sh. Sukhdev Singh (President)

 

ORDER

          This complaint has been filed by Shri Harish Menon against         M/s. BSES Yamuna Power Limited (OP) under Section 12 of the Consumer Protection Act, 1986 with allegations of unfair trade practice and deficiency in service.

          The facts in brief that complainant Harish Menon was issued an inflated power bill by M/s. BSES Yamuna Power Limited (OP) dated 08.07.2010 for a sum of Rs. 9,530/- with a due date of 28.07.2010 against meter bearing CRN No. 1240016341 (K No. 1241Q2070031) which was installed at their residence.  He sent emails in respect of the inflated power bill dated 08.07.2010 and raised his objections thereof.  This electronic meter was subsequently tested by the personnel of OP.  The testing report is of dated 17.07.2010 which stated “Last bill for 2193 units cannot be justified with the current usage and load”.  On 09.08.2010, the complainant received a letter from OP in response to his mail dated 08.08.2010 stating that the meter testing report was delivered.  However, the mail from complainant had clearly outlined need for last 15 days consumption report which was not provided.  They further confirmed through their letter of 27.09.2010 that only billing cycle consumption can be provided.  The complainant was assured of last 15 days consumption report by the personnel of OP vide their response dated 04.08.2010.

          It has further been stated that on 26.08.2010, a personnel of OP without any prior intimation came to the residence of the complainant and disconnected the electricity supply.  When the complainant reached at the OP’s office, he was handed over a notice under Section 56(1) of the Electricity Act, 2003 dated 12.08.2010.  This notice was never served on the complainant.  The complainant was forced to pay a sum of Rs. 9,530/- and subsequently the electricity was restored.

          The complainant again sent various emails to the authorities for Redressal of his grievance in respect of inflated power bill dated 08.07.2010, non-supply of notice under Section 56(1) of the Electricity Act, 2003 dated 12.08.2010 and objections regarding the illegal disconnection of electricity.  The complainant was shocked to receive a letter of dated 27.09.2010 stating that disconnection notice dated 03.08.2010 was sent to the complaint by speed post no. ED05888729.

          The complaint subsequently approached DERC for Redressal of his grievance and later lodged a complaint with Public Grievance Cell vide Grievance no. 130 BCB dated 26.11.2010 which was heard on 06.07.2011 and an order was passed, the relevant portion of which says: “….The consumer was not actually served with notice, at least an apology be tendered to him,.  Action should be taken against the erring officials also”.  Subsequently, the OP issued an apology vide letter dated 12.08.2013 wherein the OP brushed away the responsibility to conduct an enquiry and tender an apology for the inconvenience to the complainant herein.

          The complainant vide email dated 01.09.2013, intimated to concerned persons in the OP’s organization to furnish the details of the enquiry that was conducted.

          The complainant was again issued an electricity bill on 19.06.2015 for an amount of Rs. 3,140/- which he paid.  The complainant have a meeting with the official of OP who sorted out the dispute in respect of bill dated 19.06.2015.  Meter testing was also conducted on 31.08.2015 in his presence by the officials of OP who informed that the meter was working perfectly.  It has been stated that the complainant approached various authorities for Redressal of his grievance and there was no response on the part of OP.  He finally vide email dated 20.01.2016 intimated that he would initiate appropriate legal action. 

          He has stated that the cause of action first arose on 08.07.2010 when the OP sent an inflated power bill for a sum of Rs. 9,530/-; it again arose on 12.08.2010 when the personnel of OP failed to provide information despite giving assurance; on 26.08.2010,  when electric supply was disconnected, cause of action continued when the complainant sent various mails to authorities for Redressal of his grievance in response to his inflated power bill dated 08.07.2010; non supply of notice under Section 56(1) of the Electricity Act, 2003 and objections regarding the illegal disconnection dated 26.08.2010.   It further arose on 07.12.2010 when he received a letter from OP which disclosed a new defence stating that disconnection notice dated 03.08.2010 was sent to the complainant vide speed post no. ED05888729.  It again arose on 06.07.2011 when grievance complaint was heard and OP was directed to hold an enquiry.  It further arose on 12.08.2013 when the complainant received a letter from OP whereby the OP brushed away with their responsibility and gave an apology for the disconnection notice.  It further arose when the complainant received the electricity bill dated 19.06.2015. 

It has also been stated that the complainant approached Delhi State Consumer Redressal Forum in the year 2016 which dismissed the complaint on the ground of lack of subject matter.  The complainant approached the Hon’ble NCDRC which granted liberty to the complainant to approach this Ld. District Forum.  Thus, the complainant has prayed for directions to OP to pay Rs. 5,00,000/-  for the cause of action which arose on 08.07.2010 as liquidated damages with 18% interest; compensation of Rs. 1,00,000/- for the cause of action which arose on 08.07.2010 towards mental agony and inconvenience; Rs. 5,00,000/-  for the cause of action which arose on 19.06.2015 as liquidated damages with 18% interest; compensation of Rs. 1,00,000/- for the cause of action which arose on 19.06.2015 towards mental agony and inconvenience and Rs. 2,50,000/- towards cost of litigation.                

 

Heard on admission.

During the course of arguments, question arose with regard to maintainability of the complaint on the ground of limitation.The question was as to whether the complaint was barred by limitation under Section 24(A) of the Consumer Protection Act, 1986.It has been argued on behalf of the complainant that the “cause of action” was of a continuing nature and that being so, the complaint was within the period of limitation.

In support of his arguments, he has placed reliance on the following judgements:

1. MANU/SC/0741/1999 in the case of Lata Construction and Ors. Vs. Rameshchandra Ramniklal Shah and Ors.,
2. MANU/CF/0217/2014 in the case of DLM Enclave and Sh. A.K. Dubey vs. Naresh Batham,
3. MANU/CF/0008/2011 in the case of Mopar Builders and Developers Pvt. Ltd. vs. United Co-Op Housing Society Ltd.,
4. MANU/CF/0054/2014 in the case of Ravi Developments, Builders and Developers vs. Mr. Jayantibhai V. Ranka and Mrs. Arunaben K. Kapadia, and
5. MANU/CF/0073/2017 in the case of Gati Ltd. and Ors. Vs. Synergetic Automation Technologies and Ors.

 

Before adverting to the arguments of Ld. Counsel for the complainant, it would be relevant to have a look to Section 24(A) of the Act.Section 24() of the Act is extracted hereunder:-

 

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 91), 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.

 

From the bare reading of this provision, it comes out that District Forum, the State Commission or the National Commission have no power to admit a complaint unless it has been filed within two years from the date on which the cause of action has arisen.  Thus, the period of limitation for filing the complaint has been of two years from the date of cause of action.  This period of two years can be condoned on the application of the complainant, if the complainant satisfies the District Forum, the State Commission or the National Commission that he had sufficient cause for not filing the said complaint within the said period.

          The complainant have not filed any application for condonation of delay.  The Ld. Counsel for the complainant have argued that it was a case of “continuing cause of action” which extends the period of limitation for filing the complaint.  

          To appreciate his arguments as to whether it was a “continuing cause of action”, a look has to be made to the contents of the complaint.  If the complaint as such is perused, it is noticed that complainant have raised a dispute in respect of a bill which was issued to him on 08.07.2010 for a sum of Rs. 9,530/- payable by 28.07.2010.  Due to non-payment, the electricity was disconnected.  He paid the bill and electricity was restored. 

He subsequently approached DERC for redressal of his grievance which was heard in the year 2011 and an apology was tendered by the department on 12.08.2013.  He exchanged various emails with the department till 20.01.2016.  Thus, from these facts, it has to be seen whether it was a “continuing cause of action”.  Firstly, the judgements on which Ld. Counsel for complainant have relied upon are summarized.

          In Lata Construction and Ors. vs. Rameshchandra Ramniklal Shah and Ors, appellant (Developers) entered into an agreement to provide flat to respondent, but failed to do so.  Argument was advanced on behalf of appellants that the claim instituted by the respondents before the Commission was beyond the period of two years, as prescribed under Section 24(A) of the Consumer Protection Act.  On the other hand, it was contended on behalf of respondents that they had entered into a fresh agreement with the appellants under which the entire amount was to be paid.  If not paid, respondents could have instituted the claim petition before the Commission within the period of limitation.  This plea was negated by the Commission on the ground that since the right under the agreement of 1987 had not been given up by the respondents, there was a continuing cause of action running against the appellants and the claim was therefore not beyond time.  The Hon’ble Supreme Court accepted this holding that there was a continuing cause of action.

          In DLM Enclave and Sh. A.K. Dubey vs. Naresh Batham, the complainant entered into an agreement with the OPs for purchase of plot.  He made the entire payment, but OPs did not take any action in getting the Sale Deed executed in his favour.  He filed the complaint requesting for a direction to OPs to get the Sale Deed registered in his favour.  It was contended on behalf of OPs that the complaint was barred by limitation as it was made after a period of 12 years from the date of agreement and 9 years from the date of last payment.  The Hon’ble State Commission held that the provision of Section 24(A) were not applicable.

In Mopar Builders and Developers Pvt. Ltd. vs. United Co-Op Housing Society Ltd., the complainant purchased a plot from OP under an agreement where it was provided that school/hospital/gardens/sports ground/shopping complex/petrol pump and parking space etc. alongwith road and power supply will be provided by the builders.  The facilities were not provided and hence, he approached the District Forum.  The plea was raised by OP that the complaint was time barred on the ground that possession had been handed over to the purchasers during 1993-1995 while the complaint to the District Forum was made in 2007.  This was not accepted and the National Commission took the view that it was a clear case of continuing cause of action.

 In Ravi Developments, Builders and Developers vs.                 Mr. Jayantibhai V. Ranka and Mrs. Arunaben K. Kapadia, respondent no. 1 and 2 booked a bungalow in the project, launched by petitioners.  They made the total payment of Rs. 3,32,000/- and petitioners have not executed the regular agreement for sale.  Allotment was cancelled and terminated in 1996.  Hence, they filed a complaint seeking directions to the petitioners to hand over vacant possession of the bungalow or to provide any suitable bungalow and flat in the area.  The plea was taken that the complaint was barred by limitation.  The Hon’ble State Commission took the view that since the possession of the bungalow was not handed over nor amount was refunded, certainly, it was a continuing cause of action.

  In Gati Ltd. and Ors. Vs. Synergetic Automation Technologies & Ors., Synergetic Automation Technologies booked a parcel of goods with M/s. Gati Limited at Ghaziabad, UP on 26.06.1990 for delivery at Bhopal, Madhya Pradesh to M/s. Pacific Marketing as per invoice 0120.  The value of the goods was Rs. 1,73,521.92/-.  It was stated in the complaint that   M/s. Gati Limited (OP) failed to bring receipt from the consignee and hand over the same to the complainant in token of the consignee having accepted the said goods after delivery.  In the reply filed by M/s. Gati Limited before the District Forum, it was stated that the District Forum at New Delhi was not having territorial jurisdiction.  Further, the complaint was time barred.  The complaint was decided in favour of the complainant.  OP went in appeal before the Hon’ble State Commission which partly allowed the claim.  Both the parties went in appeal before the Hon’ble National Commission.  Again, the arguments was advanced in respect of the complaint being time barred.  The Commission agreed with the findings of the District Forum stating that it was a case of continuing cause of action as no proof of the delivery of the goods was available.   

The above judgements viz. Lata Construction and Ors. (supra), DLM Enclave and Sh. A.K. Dubey (supra), Mopar Builders and Developers Pvt. Ltd. (supra) and Ravi Developments, Builders and Developers (surpa) are in respect of non delivery of possession of flats and in Gati Ltd. and Ors. (supra), no proof of delivery of the goods was brought on record which led to the conclusion by the District Forum that it was a “continuing cause of action”. 

The above judgements are not attracted to the facts of the case as in the present complaint, the question is with regard to non-payment of bill which led to disconnection and the subsequent correspondence made by the complainant with the department. 

If the facts stated in the complaint are analyzed, it is noticed that the complainant was issued a bill for an amount of Rs. 9,530/- on 08.07.2010 which was payable by 28.07.2010.  He raised objections through email on 08.07.2010.  Due to non-payment, his electricity was disconnected.  Subsequently, he made the payment and electricity was restored. 

Since the bill was of dated 08.07.2010 which was payable on 28.07.2010 and he raised the objection on 08.07.2010 itself, the “cause of action” arose on 08.07.2010.  Subsequent correspondence made by the complainant with the authorities cannot be said to be a “continuing cause of action”.  The complainant has filed the complaint on 19.06.2017 i.e. after a period of 07 years which was more than two years, as prescribed.  His subsequent correspondence made with the authorities being not a “continuing cause of action” did not extend the limitation period of two years for filing the complaint.  Hence, his complaint was beyond the period of two years and hit by Section 24(A) of the Consumer Protection Act.

In view of the above, we are of the opinion that complaint of the complainant cannot be admitted and it stands rejected.  There is no order as to cost. 

          File be consigned to Record Room.

 

 

 

(DR. P.N. TIWARI)                                     (HARPREET KAUR CHARYA)

       Member                                                                 Member    

 

 

            (SUKHDEV SINGH)

                   President