KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

REVISION PETITION No.07/2024

ORDER DATED: 26.03.2024

(Against the Order in I.A.No.146/2024 in C.C.No.209/2018 of DCDRC, Ernakulam)

PRESENT:

REVISION PETITIONER/2^nd OPPOSITE PARTY:

(by Adv. Philip T. Varghese)

Vs.

RESPONDENTS/ COMPLAINANT/OPPOSITE PARTIES 1 & 3:

O R D E R

SRI. AJITH KUMAR  D.  : JUDICIAL MEMBER

          This is a Revision Petition filed under Section 47(1)(b) of the Consumer Protection Act, 2019 by the 2^nd opposite party in C.C.No.209/2018 on the file of the District Consumer Disputes Redressal Commission, Ernakulam (the District Commission for short) against the order in I.A.No.146/2024 dated 08.02.2024. 

2.       The complaint was filed alleging deficiency in service and unfair trade practice.  The complainant had purchased imported tiles from the 1^st opposite party for the purpose of laying the same in his newly constructed house. There was an assurance by the opposite parties 1 and 3 that the said tiles are of international standard.  The laying work was entrusted to the 2^nd opposite party who was paid Rs.1,00,000/-(Rupees One Lakh only) as laying charges.  But later, the complainant found that the tiles were not properly fixed and on noticing the defects, he had contacted the opposite parties for remedial measures.  The 2^nd opposite party said that the fault was on the part of the manufacturer.  The complainant had approached the opposite parties 1 and 2 for replacing the tiles and curing the defects, but nothing was done.  He would estimate the damage caused on account of the deficiency in service as Rs.16,59,000/-(Rupees Sixteen Lakhs Fifty Nine Thousand only).  On 17.02.2018 the complainant had caused issuance of a lawyer notice seeking compensation and damages.  Subsequently, he filed the complaint.

3.       According to the Petitioner, a complaint has to be filed within two years from the date on which the cause of action has arisen.  Section 69 of the Consumer Protection Act, 2019 expressly stipulates that a complaint filed after two years from the date on which the cause of action has arisen cannot be entertained by the Consumer Commission.

4.       In paragraph 14 of the complaint, it is alleged that the cause of action for the complaint arose when the defects were noted on the tiles by the complainant and subsequently on 17.02.2018 the complainant had issued a notice to the opposite parties.  Though the date of issuance of legal notice was stated in the complaint, the date on which the defects of the tiles were noted by the complainant was conspicuously absent in the complaint. 

5.       According to the Petitioner, the complainant has committed fraud on the statute.  Cause of action as contemplated under Section 69 of the Act is the foundation of the claim and it was obligatory on the part of the Complainant to state the date on which the actual cause of action had arisen.  The District Commission, without appreciating the grounds raised regarding the maintainability of the complaint had dismissed the I.A.  The impugned order had caused grave prejudice to the Petitioner.  The District Commission ought to have found that Section 69 of Consumer Protection Act, 2019 and Section 24(A) of the Consumer Protection Act, 1986 is one and the same.  So misquoting a provision would not tantamount to change of the intention of the applicant.

6.       Further argument is that the District Commission has committed a grave error in placing reliance upon the judgement of the Apex Court in “M. Siddiq Vs. Suresh Das” reported in 2020 I SCC I which is a case of recovery of possession of a property based on title.  Here the subject matter is entirely different.  The District Commission has miserably failed in appreciating the fact that the complaint was filed by concealing the date on which the complainant had realized the fact that he was cheated.

7.       The District Commission was over enthusiastic in reaching a conclusion that the consumer complaint bears a continuing cause of action disregarding the fact that the complainant did not affirm the date on which the cause of action had accrued.  For the reasons stated above the Petitioner would seek for setting aside the order passed by the District Commission.

8.       When the matter was taken up for admission, Advocate
T.J. Lakshmanan took notice for the respondentNo.1/complainant.  The counsel for both sides filed the copies of the pleadings and since the copies of the pleadings were made available, we found that calling for the records from the District Commission was unwarranted. 

9.       Heard both sides. Perused the memorandum of revision and the pleadings.

10.     Counsel for the Petitioner had drawn our attention to the entire recitals contained in the complaint.  According to the learned senior, the complainant had committed fraud on the statute by not specifying the actual date on which he had noticed the defect in the tiles laid in his residential building.  The learned counsel invited our attention to Section 24(A)(1) of the Consumer Protection Act, 1986 which stipulates that the District Forum, 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.  So according to the learned senior, the omission on the part of the complainant in not mentioning the date on which the complainant had noticed the defects on the tiles was a deliberate one and hence the complaint was to be dismissed by resorting to Order 7 Rule 11 of the Civil Procedure Code.  According to the learned counsel, Order 7 Rule 11 can be invoked at any stage of the proceedings.  Order 7 Rule 11(d) stipulates that a plaint shall be rejected if it is barred by any law. 

11.     The learned counsel had placed reliance upon the ruling of the Apex Court reported in “Church of Christ Charitable Trust & Educational Charitable Society Vs. M/s Ponniamman Educational Trust” 2012 KHC 4350.   In the aforesaid precedent, power conferred under Order 7 Rule 11 CPC was exhaustively dealt with.  The Apex had Court declared in categorical terms that the above power can be exercised at any stage of the suit either before registering the plaint or after issuance of summons to the defendants or at any time before the conclusion of the trial.  So the delay in seeking a relief for rejecting the plaint cannot be taken as a ground to deprive the Petitioner from getting a favourable order in the aforesaid petition.  The Apex Court had made observation about the bounden duty of the Trial Court to ascertain the materials for cause of action as the cause of action is a bundle of facts which, if taken with the law applicable to them would give the plaintiff the right to relief against the defendants. 

12.     The learned counsel had cited “Cotton Corporation of India Ltd., Bombay Vs. M/s Hindustan Cotton Co., Bombay” reported in 1995 KHC 1620 and argued a preposition that limitation had begun to run from date on which the cause of action arose.  Here in the complaint, the complainant had averred that the cause of action arose on noticing the defects of the tiles laid and subsequently on issuance of the legal notice.  According to the learned counsel, the cause of action had already arisen when the complainant noticed the defects in the tiles.  So the subsequent issuance of a lawyer notice would never extend the period of limitation.  The learned counsel had placed reliance upon a ruling reported in “Balakrishna Savalram Pujari Waghmare Vs. Dhyaneshwar Maharaj Sansthan” 1959 KHC 547.  It was a suit for declaration of rights as pujari and injunction against the trustees of the institution.  The Apex Court, on the basis of evidence on record had reached a conclusion that the conduct of the trustees in ousting the predecessors of the plaintiff was not a continuing wrong within the meaning of Section 23 of the Limitation Act so as to save the suit from the bar of limitation under Article 120.

13.     The counsel had also placed reliance upon a ruling of the Supreme Court in “Experion Developers Private Limited Vs. Himanshu Dewan and Sonali Dewan & Ors.” reported in 2023 ICO 1186.  It was a case coming under the Consumer Protection Act, 2019.  The Apex Court had considered the term “cause of action” contained under Section 69 of the Consumer Protection Act, 2019 as foundation of the claim refers to the entire set or bundle of facts necessary and material to prove in order to get a judgement. It refers to a definite point of time when the requisite ingredients constituting that ‘cause of action’ was complete.  The cause of action is complete when they provide the aggrieved party with the right to invoke jurisdiction of the Consumer Forum. 

14.     The learned counsel had cited “Commissioner of Wealth Tax, Amritsar Vs. Suresh Seth” reported in 1981 KHC 607 to canvass a preposition that the offense relating to the omission to file wealth tax return was not a continuing offence.  This ruling has no direct applicability to the facts involved in this case.  He had placed reliance upon two rulings of the Apex Court reported in “Haryana Urban Development Authority & Others Vs. Tej Refrigeration Industries Limited”2013 KHC 3926 “State Bank of India Vs. M/s B.S. Agricultural Industries”  reported in (I) 2009 KHC 4575 to canvass a preposition that the Expression “shall not admit a complaint” occurring in Section 24(A) of the Consumer Protection Act, 1986 is peremptory in nature and it is the legislative command for the consumer forum to examine on its own whether a complaint is filed within the prescribed limitation period. 

15.     Basing upon these authorities the learned counsel had drawn the attention of this Court to the order passed by the District Commission and argued that the District Commission did not consider the core issue while disposing the I.A.  It placed reliance upon a ruling of the Apex Court on title.

16.     The learned counsel appearing for the complainant had cited a ruling of the Apex Court in Civil Appeal No.3883/2007 in “National Insurance CO.LTD Vs Hindustan Safety Glass Works LTD with Civil Appeal No.1156/2008 in “National Insurance Company LTD Vs Kanoria Chemicals &Industries LTD”.  Before the Apex Court an argument was advanced that the complaint was barred by limitation.  The National Commission had rejected the contention that the complaint was barred by limitation.  In Paragraph 18 the Apex Court had observed that in a dispute concerning a consumer it is necessary for the courts to take a pragmatic view on the right of the consumer principally since it is the consumer who is placed at a disadvantage vis-à-vis the supplier of services or goods.  It is to overcome this disadvantage that a beneficent legislation in the form of Consumer Protection Act, 1986 was enacted by the Parliament.  The provision of limitation in the Act cannot be strictly construed to cause disadvantage to a consumer in a matter where a supplier of goods or services itself was instrumental in causing delay in the settlement of the consumer’s claim. 

17.     According to the learned counsel appearing for the complainant this is a belated application.  The Revision Petitioner had filed the version before the District Commission on 20.07.2018.  The trial had commenced and the complainant was examined.  The 1^st opposite party was also examined.  When the matter was posted for the examination of the Revision Petitioner, this petition was filed.

18.     The learned counsel for the complainant had drawn our attention to the pleadings that when the complainant had noticed the defects and approached the opposite parties to rectify and replace the tiles they had assured him that the grievance of the complainant would be redressed soon.  If the said assurance was materialised no cause of action would have arisen and a decision on this application could be arrived at along with the adjudication of the complaint itself.  According to him it is not a case where there is absence of mentioning of the date of arising of the cause of action.  It is specifically stipulated that the cause of action arose on the date when the complainant had noticed the defects and later on issuance of the lawyer notice.  Here the correctness of the said pleading could only be answered along with the other issues. 

19.     The learned counsel would also submit that the Revision Petitioner had filed a version stating that he had never carried out any work in the process of laying the tiles at the residential house of the complainant. But the complainant could cause production of the Bank statement of the Revision Petitioner evidencing the receipt of funds at the relevant point of time and stated that to avoid this inconvenient situation, the instant application has been filed. 

20.     On going through the order passed by the District Commission, it could be seen that the District Commission was not inclined to consider the evidence on record in its correct perspective.  Instead of going to the real state of affairs, A ruling on a title suit is seen pressed into service to reach a conclusion that the cause of action in the case is a continuing one.

21.     On a perusal of the averments contained in the complaint it can be seen that a decision on this aspect could be arrived at only after considering the evidence let in by the parties during trial.  The finding of the District Commission appears to have been arrived at without considering the core issue in the matter.  A proper resolution could be possible only after considering the evidence let in by both sides.

  22.   The order passed by the District Commission thus appears to be defective as it had reached at a finding without considering the real issue involved in the matter.  So we are inclined to set aside the order and remand the matter to the District Commission to consider the issue afresh during the final disposal of the complaint, untrammelled by the observations made by us in the preceding Paragraphs of this order. 

In the result, the Revision Petition is allowed.  The order passed by the District Commission in I.A.No.146/2024 dated 08.02.2024 is set aside and the matter is remanded back to the District Commission with a direction to consider the matter of limitation raised in the application at the time of final disposal of the complaint.

SL