DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.137/2017
Col. Gulshan Saini
S/o Sh. R.D. Saini
C/o Maj. D Prahash Rao
Coy. Commander Office,
Ground Floor, Army Hospital (R&R)
Delhi Cantt- 110010
….Complainant
Versus
Country Club (India) Limited
Through its Managing Director
2, Community Centre, 1st Floor,
East of Kailash, Opp. Sapna Cinema
New Delhi- 110065
Country Vacation
City Square Mall,
Shop No.6, M.G. Marg- Rajouri Garden
New Delhi- 110027
Country Club (India) Limited
6-3-1219/13, Kundan Bagh Road,
Uma Nagar, Begumpet,
Hyderabad, Telangana- 500016
Also at:
Country Club (India) Limited
6-3-1219/A, 2nd Floor, Begumpet,
Hyderabad, Telangana- 500016
….Opposite Parties
Date of Institution : 20.04.2017
Date of Order : 02.12.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
President: Ms. Monika A Srivastava
- An application has been filed by the counsel for the OP for dismissal of the complaint on the ground that the complaint is time barred. Reply has been filed by the complainant to this application.
- Since the question relating to Limitation goes to the root of the matter and may render the order illegal, it has to be seen whether the Complaint was filed within the requisite time period i.e., within two years of accrual of cause of action.
- Section 69 of the Consumer Protection Act, 2019 lays down a limitation period of 2 years for the filing of complaints, was a mandatory requirement which had to be considered by the consumer for a before admitting a complaint, although it could condone the delay in filing complaints if sufficient cause was shown.
- In Gian Gupta vs DDA the Hon’ble Delhi State Commission on 16.08.2021 has held:
Provision of Section 24A of the Act, 1986 which prescribes limitation period for admission of a complaint by the consumer fora is peremptory in nature, requiring the Consumer Forum to examine, before it admits the Complaint, that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint, if sufficient cause is shown.
It has been held that “the expression, `shall not admit a complaint' occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the Complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if it has been filed within two years from the date of accrual of 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 an illegality.
According to the Complaint filed by the Complainant, the cause of action arose when the Opposite Party rejected the application of the complainant i.e. 15.05.2006. As per the Complainant, he made several correspondences with the Opposite Party for reconsideration of the application, however, the Opposite Party neither replied to the said letters nor refunded the amount deposited by the complainant. Thereafter, the Complainant filed Complaint before the State Commission on 14.05.2010, i.e. four years after the rejection of the application.
Relying on the judgment of the Hon'ble Supreme Court in State of Tripura & Ors. Vs. Arabinda Chakraborty & Ors., reported at (2014) 6 SCC 460 wherein it was held “Simply by making a representation, when there is no statutory provision or there is no statutory appeal provided, the period of limitation would not get extended. The law does not permit extension of period of limitation by mere filing of a representation. A person may go on making representations for years and in such an event the period of limitation would not commence from the date on which the last representation is decided. ........"
Further reliance has been placed on the Hon'ble National Commission in Mahesh Nensi Shah Vs. Oriental Insurance Co. Ltd. reported at III (2006) CPJ 414 NC, has observed that no amount of correspondence between the parties can extend the period of limitation.
In the present case also, the complaint has been filed after almost 4 years from the date, the 'Cause of Action' arose. Even though the Complainant had made several representations to the Opposite Party when the application for reconsideration was formally rejected by the Opposite Party, the same cannot be considered as the date of accrual of fresh cause of action. Hence, it is clear that the suit is beyond the limitation period prescribed in the Consumer Protection Act, 1986.
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.
Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay".
The above authoritative judgments of the Hon'ble Supreme Court are equally applicable in the present case, which are reflective that the Commission has to look into the fact whether the Complainant has been able to show his/her diligence, the reasons for the delay in filing the Complaint and also the special period of limitation provided in the Consumer Protection Act.
Clearly in the present case, the Complainant has taken no legal action since May, 2006 till the date of filing the present Complaint. Thus, we are of the considered view that the Complainant has not acted with reasonable diligence in prosecution of his case which has resulted in filing the complaint beyond the period of two years as prescribed in the Consumer Protection Act, 1986. It is clear that the negligence, deliberate inaction and lack of bonafides are imputable to the Complainant, therefore, the Complainant is not entitled for any Condonation of Delay. Accordingly, the application for Condonation of Delay is dismissed. Consequently, the Complaint shall also stand dismissed.
5. In O. K. Gaur S/o Late B. R. Gaur v. Choithram Hospital and Research Centre 2012 SCC OnLine NCDRC 114 the Court held the Act clearly provides the aspect of limitation to be peremptory in nature and has to be seen at the time of filing of the complaint. In the present case since the period was beyond 2 years without any acceptable reason for delay the case is barred limitation. A cause of action does not arise at the date of service of legal notice as argued by the Respondent.
6. After going through the contents of the application, the reply and hearing the oral arguments of the parties it is noticed that a sum of Rs.1,90,000/- was deposited by the complainant on 20.03.2010. After that date there are allegations that e-mails were written in the year 2010 but are not supported by any proof.
It is observed that no action was taken by the complainant till 2017 when a notice was sent by him to the OP on 04.03.2017 and thereafter they received a message from the OP on 13.04.2017 stating as under:
Dear Sir
We are calling you to solve the matter. Please cll us so that we can contact u.
Regards
Country Club.
On the strength of this message and the legal notice sent by him, the complainant has filed the present complaint.
It is trite in law that sending of a legal notice does not extend limitation and the message reproduced here does not amount to a recurring cause of action.
Placing reliance on the judgment of the Hon'ble Supreme Court in State Bank of India v. B.S. Agriculture Industries (I) 2009(5) SCC 121 and another order of the Hon'ble Supreme Court in Kandimalla Raghavaiah and Company v. National Insurance Company Ltd. (2009) 7 SCC 768 we hold that the present complaint is time barred and therefore, dismissed.
File be consigned to the record room after giving a copy of the order to the parties as per rules. Order be uploaded on the website.
