JUDGMENT Per Justice Sham Sunder , President This appeal by the complainant is directed against the order dated 31.2.2011, rendered by the District Consumer Disputes Redressal Forum-II, U.T. Chandigarh (hereinafter to be referred as the Forum only), vide which it dismissed the complaint, filed by the complainant(now appellant), on the ground that the same was barred by limitation. 2. The facts, in brief, are that Vijay Kumar, husband of Smt. Kaushalya Gupta, of whom, the complainant claims himself to be the attorney, had applied for the industrial plot with the OPs (now respondents), by depositing Rs.1,000/-. The OPs without any consent/request, of the appellant refunded the same, through cheque dated 20.01.2006 (Annexure C-2), sent vide their memo dated 20.02.2006 (Annexure C-1). After the death of Vijay Kumar her husband, Kaushalya Devi, the complainant vide letters dated 30.03.06 (Annexure C-3) and (Annexure C-4) dated 15.5.2006, asked the OPs to make allotment of the industrial plot, at Chandigarh, or any residential plot, in case, there was any problem for allotment of Industrial plot, but despite that the OPs did not settle her grievance. Thus, left with no other alternative, a legal notice dated 20.12.2010 (Annexure C-6) was sent to the OPs, but to no avail. Ultimately, the complaint was filed by the complainant. 3. After hearing the Counsel for the complainant, and, on going through the record, the Forum dismissed the complaint, being barred by time. 4. Feeling aggrieved, the instant appeal has been filed by the complainant/appellant. 5. We have heard the Counsel for the appellant, and have gone through the documents, on record, carefully. 6. The Counsel for the appellant submitted that the Forum was wrong, in coming to the conclusion, that the complaint was barred by time. He further submitted that Kaushalya Gupta, widow of Vijay Kumar deceased continued, sending notices to the OPs, for the purpose of allotment of a plot, after the amount deposited by Vijay Kumar , was refunded without his consent. He further submitted that, in these circumstances, the cause of action arose to the complainant on 20.12.2010, when for the last time, a legal notice was sent by Kaushalya Gupta to the OPs. He further submitted that the complaint having been filed on 18.1.2011,thus, was well within time. He further submitted that the complaint and the appeal by the attorney, in his individual name, were maintainable. He further submitted that the husband of Smt.Kaushalya Gupta fell within the definition of ‘Consumer’, and after his death, Smt Kaushalya Gupta, being his legal heir, fell within the ambit of ‘Consumer’, as per provisions of Section 2(1)(d) of the Consumer Protection Act,1986 ( hereinafter to be referred as the Act only ). He further submitted that the order of the Forum, being illegal, is liable to be set aside. 7. After giving our thoughtful consideration, to the contentions advanced by the Counsel for the appellant, in our considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded hereinafter. No doubt, the husband of Smt. Kaushalya Gupta, of whom, the complainant/appellant claims himself to be the attorney, moved an application for allotment of an industrial plot. That plot was not allotted to him, as he did not fulfill the conditions, as also the matter remained under litigation, upto the Supreme Court of India, as is evident from Annexure A-2A. Accordingly, the amount of earnest money of Rs.1000/- was refunded to Vijay Kumar, vide letter Annexure A-1 dated 20.2.2006 by the Estate Officer, Chandigarh. A copy of the draft of refund of amount of Rs.1000/- is annexure A-2. At the most, the cause of action accrued to Vijay Kumar, or if he had already died, to Smt. Kaushalya Gupta, as legal heir, to file the complaint on 20.2.2006, when the refund of the amount was made by the OPs. Smt. Kaushalya Gupta, in her individual capacity, or through her attorney could file, a complaint under the Act within a period of two years, from the date, when cause of action accrued i.e. on 20.2.2006, in view of the provisions of Section-24A of the Act. The complaint, in this case, was filed on 18.1.2011, much beyond the period of limitation. No application, for condonation of delay, showing sufficient cause was moved alongwith the complaint. The contention of the Counsel for the appellant that the cause of action arose with effect from 20.12.2010, when Kaushalya Gupta sent legal notice to the OPs, being without substance, deserves to be rejected. Once the period of limitation started running from a particular date, no subsequent event could prevent the running thereof or amount to extension of the same. The Forum, therefore, in our considered opinion, was right in coming to the conclusion that the complaint, being palpably barred by time, was liable to be dismissed, in limine. 8. Even otherwise, Ajay Kumar, in his capacity, as attorney, was neither competent to file the complaint, nor the instant appeal as he has done. At the most, the complaint could be filed by Smt. Kushalya Gupta, legal representative of Sh.Vijay Kumar, deceased through her attorney and not by the attorney in his individual capacity. On this ground too, the complaint and also the appeal, being not maintainable, deserve dismissal. 9. The applicant Vijay Kumar, does not fall within the definition of ‘Consumer’. Even Smt. Kaushalya Gupta, legal representative of deceased Vijay Kumar, does not fall within the definition of ‘consumer’. Sh.Vijay Kumar, husband of Kaushalya Gupta, had moved an application for the allotment of an industrial plot. The allotment was not made to him, and his application was declined. On the other hand, refund of earnest money of Rs.1000/- was made vide letter dated 20.2.2006 Annexure A-1. Once Vijay Kumar was not successful, on the basis of application, moved by him, for the allotment of a plot, and the same (application) was rejected and earnest money was refunded to him, he no longer remained even a potential allottee and, as such, did not fall within the definition of ‘consumer’. Thus, his legal representative, after his death, could not claim the status of a ‘consumer’. In Haryana Urban Development Authority Vs Jagdish Chander Verma IV(2010)CPJ 39(NC), the complainant moved an application for allotment of a plot. He was not successful, in the draw of lots. In these circumstances, the Hon’ble National Commission, held that once the complainant was not successful, in the draw of lots for allotment, he could not claim the status of a ‘consumer’ of service rendered by the OP. The principle of law laid down, in the aforesaid case is fully applicable to the instant case. On this ground too, the complaint was not maintainable. 10. For the reasons recorded above, the appeal is dismissed, in limine, with costs, which are quantified at Rs.2000/-. 11. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
| | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
