1.      This appeal has been filed under section 19 of The Consumer Protection Act, 1986 in challenge to the Order dated 17.11.2018 of the State Commission in consumer complaint no. 126 of 2015.

2.       It appears that the complaint was filed in the State Commission with enormous delay much beyond the expiry of the limitation period.

3.     The delay is said to be of 3415 days and the application seeking the condonation of delay was filed by the appellant / complainant in the concerned State Commission.  But after hearing both the sides, the same was dismissed by a detailed order, which is now under challenge and has been appealed against by the appellant/ complainant.

4.     The relevant facts and the rival contentions of both the sides have been succinctly captured by the State Commission in its impugned order dated 17.11.2018 and the relevant extracts therefrom may be quoted herein below:-

          “6.      Along with the complaint, aforesaid application is moved seeking condonation of delay in filing the consumer complaint.  It is stated that the OP had illegally cancelled the allotment vide letter dated 13.10.2003.  Thereupon complainant had written number of letters to the OP.  However, OP responded only on 8.3.13 and the complaint is filed on 18.2.15 within two years from the receipt of said letter.  It is stated that there is a continuous cause of action in favour of the complainant as the amount deposited by him is still with OP.  It is further stated that even assuming, complainant is time barring, in that event complainant has sufficient cause explaining the delay as complainant had been pursuing the matter with OP about enhancement of the cost of the flat.  The complainant had continuous correspondence with the OP.  The complainant was waiting response from OP.  It is stated that OP had responded only on 8.3.13 as such there was sufficient cause for not filing the complaint within the period of limitation.  It is stated that delay of 3415 days may be condoned as there are reasonable and justifiable grounds.

          7.       The delay application is strongly opposed by OP by filing reply wherein it is stated that the complaint filed is grossly beyond the limitation period.  The limitation period for filing the period has already lapsed in the year 2005 whereas the complaint has been filed in the year 2015.  It is stated that cancellation of flat by the competent authority was issued on 13.10.03 and it is admitted position that the complainant had received the cancellation letter which has also been annexed with the complaint.  After issuance of the letter the complainant slept over the matter till 14.1.13 when he had sent a letter for allotment of suitable flat under first SFS Commercial Flat Scheme which was duly replied on 8.3.13 informing that the scheme had already been closed and his flat had already been cancelled due to non-deposit of demanded amount. It is stated that limitation period for filing the complaint ended in the year 2005.  There is delay of about 10 years in filing the complaint and as such complaint is liable to be dismissed.”

5.       The submission of the learned counsel for the appellant is nothing much different than what was submitted before the State Commission and he has virtually reiterated the same. Contention is that the cost of the flat was unilaterally enhanced by the development authority which became beyond the purse of the appellant and therefore, he could not pay the same.  The allotment has been unreasonably cancelled unilaterally and it was protested against by the appellant who then entered into correspondence with the development authority.  Submission is that even the money as was deposited by the appellant is still with the development authority and therefore, it is a case of continuing cause of action.  Submission is that the last reply to appellant’s correspondence was received in the year 2013 and on that reckoning the complaint was filed well within the time in February, 2015.

6.     In rebuttal, learned counsel for the respondent has vehemently opposed the appeal, submitting that the said enhanced amount was demanded long back in the year 2002.  Even the cancellation of the allotment was done in the year 2003 vide letter dated 13.10.2003.  According to the respondent’s counsel, if the complainant felt aggrieved by the cancellation, the cause of action must be counted from the cancellation of the allotment and any correspondence made in this regard by the appellant will not obliterate or eradicate the period of limitation.  The submission is that the cases of continued cause of action have different attributes and factual trappings and they are the cases where it cannot be definitely said as to which is the specific date or point of time from which the cause of action may be determined.  There may also be matters, where the nature of protest and the correspondence is such that it may not be said with certainty that the declining stand of the other side was sufficiently firmed up. There may also be cases where the nature of the protest and the mutual discussions, correspondence and parlays be of such nature that may show and demonstrate that sufficient cause to condone the delay existed.  However in the present matter, with regard to the long efflux of time that elapsed between the clearly established date of cause of action and the actual filing of the complaint there is hardly any convincing material to show that either it was a case of continuing cause of action or that it was a case where sufficient cause to condone the delay existed.  Neither of the two grounds can be pressed into service.

7.     Perused the record in the light of the rival submissions made at the Bar.  All the contentions that have been raised before the Bench are nothing but reiteration of the submissions made before the State Commission.  The Commission below has not only discussed them well but has also considered the relevant law on the point.  It may be apt to extract the relevant portion from the Order passed by the State Commission, which reads as follows:

    “9.      It is own case of the complainant that vide letter dated 3.9.1985, he was allotted commercial flat in Laxmi Nagar District Centre of about 78 sq. mts.  It is also the case of the complainant that he had deposited few installments but did not deposit complete amount and asked OP to inform him the actual build up area of flat allotted vide letter dated 25.11.87.  Thereupon he had received a letter form OP on 4.4.01 demanding certain documents which he had submitted.  The demand letter for last installment was sent to him on 20.2.02.  It is also his own case that complainant did not deposit the said demand and ultimately the flat allotted to him was cancelled vide letter dated 13.10.03.  In these circumstances, the cause of action had arisen on 13.10.03 when the cancellation letter was issued to the complainant.  Present is not a case of continuous cause of action as is alleged.  The cause of action has to be considered form the date of cancellation of booking.  Reliance is paced upon judgement of Meerut Development Authority Vs. Radhika, IV (2015) CPJ 535 (NC), Raj Kumar Mattu & Anr. Vs. Ardee Infrastructure Pvt. Ltd., FA-216/06, decided by National Commission on 18.5.17.  The period of limitation had already begun on the date of cancellation of booking.  The complainant had to take action within two years from the aforesaid date.

  10.       Section 24A of the Act prescribes the limitation period for admission of complaint by Consumer Fora.  It reads as follows:

                             “24A (1)       The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years form the date on which the cause of action has arisen. 

(2)           Notwithstanding anything contained in Sub-section (1), 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 complainant 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.”

          11.     A bare reading of the provision shows that it is pre-emptory in nature and mandates that no Consumer Fora, set up under the Act, shall admit a complaint unless it has been filed within two years from the date of accrual of cause of action.  However, Sub-section (2) of the said Section empowers the concerned Fora to entertain the complaint after the expiry of the said period, if it is satisfied that the complainant had ‘sufficient cause’ for not filing the complaint within such period.  It is trite that the Section casts a duty on a Consumer Fora to dismiss a belated complaint unless it is satisfied that the Complainant had ‘sufficient cause’ in not preferring the same within the prescribed time.”

          12.     In Haryana Urban Development Authority V. B.K. Sood, VIII (2005) SLT 146=IV (2005) CPJ1 (SC)=(2006) 1 SCC 164, the Apex Court while dealing with the Section 24A of the Act, 1986 held:

          “10.    Section 24-A of the Consumer Protection Act, 1986 (referred to as the Act hereafter) expressly casts a duty on the Commission admitting a complaint to dismiss a complaint unless the complainant satisfied the District Forum, the State Commission or the National Commission, as the case may be, that the complainant had sufficient cause for not filing the complaint within the period of two year from the date on which the cause of action had arisen.

          11.     The section debars any Fora set up under the Act, admitting a complaint unless the complaint is filed within two years from the date of which the cause of action has arisen.  Neither the National Commission nor the State Commission had considered the preliminary objections raised by the appellant that the claim of the respondent was barred by time.”

          14.     The complainant has tried to explain delay of 3415 days by alleging that he had correspondence with OP after 13.10.03 on the unilateral increase in cost of flat.  There is no correspondence on record in this regard after 13.10.03 except a letter dated 14.1.13 of complainant wherein he has requested to OP informing that earlier allotment was beyond his means and he could not deposit full demanded amount.  He had requested OP for making a suitable allotment to him as per scheme.  OP responded vide letter dated 8.3.13 that flat allotment to him had already been cancelled and relevant scheme stood closed.  The alleged ground is not made out in any manner.  Further it is well established that exchange of letters between the parties does not extend the period of limitation under the Act.  Reliance is placed on the judgment of National Commission in Ashok Kumar Sainia Vs. Delhi Development Authority, FA No.183/2007 decided on 21.03.2013.

          15.     In Harbhajan Sharma Vs. Haryana Urban Development Authority & Anr., 1 (2015) CPJ 672 (NC), the National Commission took a similar view.  The relevant portion of judgement is reproduced as under:

    “Mere writing of letters to the respondent authority and waiting for reply  for unduly long time would not extend the period of limitation.  It is well settled position of law that the requirement of limitation under Section 24A(1) is a mandatory requirement and the Consumer Fora shall not admit a complaint unless it is filed within two years of date on which the cause of action has arisen. The District Forum wrongly treated the cause of action in the present case as continuous one while entertaining the complaint which was prime facie time barred. We, therefore, do not find any substance in the present revision petition and hence dismiss the same with the parties bearing their own costs.”

16.     In view of above discussion, the present application seeking condonation of delay stands dismissed.  Consequently the complaint also stands dismissed being barred by limitation.”

8.   The learned counsel appearing for the appellant has not been able to raise any persuasive or reasonable submission, which may go to assail the correctness or appropriateness of reasoning adopted by the State Commission.  The facts of the case and circumstances have been well discussed, well weighed and well appreciated in the light of the relevant law on the point and the impugned order appears to be unassailable. 

9.   The Bench has also tried to search, though in vain, any legitimate explanation which may serve to bridge-up the inordinately long hiatus that separates the date when the cause of action arose and the date when the complaint was filed.  But none whatsoever is forthcoming.  No good ground to interfere in the finding returned by State Commission is visible.

10.      Ordinarily we tend to adopt a liberal approach on the aspect of considering the point of condonation of delay and lean to take an indulgent view towards the side who seeks such condonation. We prefer that a matter be decided on merits rather than be closed at the threshold stage i.e. on the ground of delay, but that does not imply that we may ever ride roughshod over the statutory requirement regarding the law of limitation wherever it has been provided by the legislature in its wisdom. It does not need much elaboration to state that when the period of limitation expires it simultaneously gives rise to a right which accrues to the other side and the other side cannot be divested of its accrued right for no adequate reason, that is why, whenever there is a delay, and whenever condonation on that aspect is sought by a party, it has to discharge the onus of showing such factual basis from which may emanate the convincing grounds relying upon which such delay may be condoned. It goes without saying that such explanation has to be genuine and not an explanation just for the sake of explanation. Anything and everything said to bridge up a considerable gap of delay is not to be termed as legitimate explanation, which has to be sincere, honest and persuasively adequate and worthy of credence.

11.    Here, but, the ground being offered appears to be wholly inadequate, if not mendacious. The powers which have been conferred to condone the delay have got to be exercised judiciously and not arbitrarily and certainly not at will either whimsically or capriciously. The discretion to be exercised in such matters is not an exercise of some kind of privilege or prerogative, it is essentially a legal exercise and has to be lawfully harnessed with judicious discipline. The object and purpose behind the law of limitation cannot be either swung into oblivion or be ignored with apathy.

12.     In view of the foregoing discussion, the instant appeal has no merits and the same cannot be allowed as such.

13.   At this stage, the learned appellant’s counsel has laid much emphasis on the point that the money that was deposited by the appellant is still with the development authority and has not been refunded back, either with or without interest and the authority has no right to unduly detain the same when they are not giving anything in return to the appellant.

14.   A query in this regard was put to the learned counsel for the respondent, to which he has submitted that he is not aware about the same and has no instructions in that regard on the basis of which he may correctly answer whether the money has been refunded back or not.  Be that as it may.  If some money was deposited by the complainant which is still with the development authority, the complainant shall have liberty to adopt proper course and approach the concerned development authority in that regard through proper channel in order to redeem his money back.  The Delhi Development Authority is directed to do the needful in this regard as per rules. 

15.   Appeal stands so disposed.

16.     The Registry is requested to send a copy each of this Order to the parties in the appeal and to their learned counsel within three days. The stenographer is requested to upload this Order on the website of this Commission immediately.