Record is put up for order in connection with Miscellaneous Application dated 17.12.2021 filed by the OPs.

          The matter was heard on 08.04.2022 . By filing the impugned application Ops alleged that the present complaint is not maintainable either in law or in fact as complainants earlier complainant case being as complainant’s earlier complaint case being No.  387/2016 was dismissed on contest and the complainant Sonali das was reserve rights to approach the appropriate Civil Court to seek her remedy, if so advised. The consumer case is barred by limitation as cause of action the case had arised in the year 2016. OPs have not entered into any contract with the complainants. Hence, the prayer for dismissal of the complaint.

In support of the contention, the Ld. Advocate for the OPs placed two judgment/final order passed by this commission in CC No.  387/2016 and CC No. 182/2019.

Complainant opposed the prayer of the OPs without filing any written objection.

In course of hearing Ld. Advocate for the complainants submitted that the second complaint filed by the complainants is maintainable on the facts of this case as the OPs failed to refund the money cancellation of Membership. He further contended that complainants filed a case being CC  No.  387/2016 before this commission with certain relieves. There were some technical error in the complaint petition for which the complaint case was disposed of on 10.01.2017 with a liberty to complainants to approach before the appropriate court  of law. OPs have also received Membership fees from the complainants vide letter dated 17.02.2017. According to the Ld. Advocate for the complainants, there is fresh cause of action  arose against the OPs and there is no bar to entertain the present complaint.  More so, the complaint is not barred by limitation. Thus, the prayer of the OPs is liable to be rejected.

In support of the contention the Ld. Advocate for the complainants placed the judgment to the Hon’ble Supreme Court passed in Civil Appeal No. 557/2016 (Indian Machinery Company vs. M/s Ansal Housing & Construction Ltd.)

We have considered the arguments of the Ld. Advocate of the parties and examined the record. It is true that the complainats have filed the instant complaint before the commission on allegation against the service provider on the ground of  refund the amount of Rs.  1,60,000/- along with interest@ 18 % per annum on and from  10.07.2016 till the date of actual payment, compensation and litigation cost.

The only question that has arisen in this case is whether a second complaint to the District Commission under the CP Act is maintainable when the first complaint was dismissed of the contest.

In support of the contention of the complainants reliance is placed on the judgment of the Hon’ble Supreme Court passed in Civil Appeal No.  557/2016 in the case of Indian Machinery Company vs M/s Ansal  Housing  & Construction Ltd. Relying on the aforesaid decision Ld. Advocate for the complainants submitted that second complaint is maintainable in its present form and in law.

557/2016 is not applicable. The cited decision of the complainants is that the second complaint is maintainable of first complaint was dismissed in default of non appearance of the complaint. In the present case first complaint being CC No. 387/2016 was dismissed on contest against the OP. Thus, the present complaint is not maintainable in its present form and in law. There was sufficient time and opportunity for the complainants herein to move the Hon’ble SCDRC  against the final order dated 10.01.2017 passed in CC No.  387/2016 in whichever manner available to them under the law. Even the complainants  did not approach the appropriate Civil Court to seek their remedy.

Ld. Advocate for the complainants argued that vide letter dated 17.02.2017,  23.02.2017 and 14.03.2017 complainants approached the OPs to issue list of hotel and vacations as well as their affiliated properties/tie up properties in Eastern and North Eastern State of India so that the complainants can avail the gift voucher issued by the OPs.

In this case, admittedly letter dated 17.02.2017,  23.02.2017 and  14.03.2017 issued to the OPs after dismissal of the consumer case being No. 387/2016.

Issuance of letter to the OPs is not continuing cause of action. The cause of action was started to have arisen on 10.07.2016 when Purchaser Agreement was executed. The cause of action was also alleged to have been arisen on 27.07.2016 when the complainants resignation from Membership  with a request to refund deposited money. Thus, the complainant is not filed within the prescribed period of limitation U/s  69 of the CP Act.

In view of the discussion above coupled with submission made by the  Ld. Advocate of both sides, we hold that consumer complaint is not maintainable in its present form and in law. Accordingly, the prayer of the OPs is allowed on contest but without any cost.

Thus, MA being No.  553/2021 is disposed of.

Consequently, the consumer case is dismissed.