JUSTICE SUDIP AHLUWALIA, MEMBER

 

which, the Appeal filed by the Petitioner was dismissed, and the Order of the Ld. District Forum was upheld.

2. The factual background, in brief, is that the Directors and officers of the Opposite Party were acquainted with the Complainant's late father, Major Dara Singh, and maintained a close relationship with him. The Director of the Opposite Party visited Kanpur and persuaded the Complainant and his father to deposit money with their Company as a form of security. The Opposite Party assured them that the funds collected from the general public would be used to pay interest to depositors. For those who did not opt for regular payments, the accrued interest would be added to the principal amount, providing greater benefits to the depositor over time. Based on these assurances from the Director of the Opposite Party, the Complainant deposited a sum of Rs. 25,000/- on 15.05.1971. The Complainant made this deposit on the understanding that he could withdraw the entire amount along with accrued interest whenever he desired. When the Complainant needed funds in 1981, the Opposite Party paid Rs. 10,000/- as interest. However, the Opposite Party had since failed to pay the remaining amount to the Complainant, thereby breaching its promise. This failure to pay constituted a deficiency in service, thus falling under the purview of  a consumer dispute. The Complainant claimed that he was entitled to recover Rs. 4,73,074.74 from the Opposite Party. Further, the Opposite Party, in a letter dated 01.12.1993, stated that they do not have the relevant documents. While the Opposite Party had not explicitly refused to pay the outstanding amount, the Complainant had been subjected to continuous harassment, with no clear explanation provided for the delay in payment. During a follow-up on 10.10.1995, the Opposite Party offered inadequate excuses and promised to resolve the matter within a month, yet no payment was made by it.  Aggrieved with the deficiency of service on the part of the Opposite Party, the Complainant filed his Complaint before the Ld. District Forum, Kanpur Nagar.

3. The District Forum vide its Order dated 30.04.1997 partially allowed the Complaint and directed the Petitioner/Opposite Party to pay Rs. 25,000/- to the Complainant with interest @18% p.a. from the date of deposit till actual payment after deduction of Rs. 10,000/-, along with Rs. 2,000/- as compensation. The Petitioner then filed its Appeal before the Ld. State Commission, which was dismissed vide the impugned Order, and the Order of the District Forum was affirmed. The relevant extracts of the impugned Order are set out as below -

“The appellant contends that in the riots that took place after the death of Prime Minister Mrs. Indira Gandhi in 1984, the entire company got burnt and along with that the necessary records were also destroyed. In this regard, the opposite party has not submitted a copy of any FIR so that it can be clarified that when the arson took place in his company and which records or articles were destroyed in the arson. The appellant has not produced all these. Hence, in such circumstances the concept will go against the appellant. The learned District Forum has written that even after serving a satisfactory notice from the Registry, the opposite party company or its representative did not appear. This clearly shows that the notice on the opposite party was served satisfactorily. The relation between the appellant and the respondent was good and the appellant has also accepted this fact. Now the question arises whether the appellant is entitled to the relief sought or whether the judgment in question is liable to be set aside?

 

Since the amount and interest have not been finally paid to the respondent/complainant, the cause of this suit is continuing and the question of time barring does not arise here. Whereas the appellant/ opposite party believes that all his records were burnt and The goods were destroyed there but without any documentary evidence it cannot be believed and that meant that the appellant, in order to avoid the charge of the respondent and not have to pay the amount in question, therefore, came up with the fact of burning of all the records in the riots and the grounds. før non-payment from the records available on the file it is established that there was mutual friendship between the parties. It is also proved that the appellant/ opposite party has paid Rs.10,000/- to the complainant as interest on the deposited amount, which leads to the conclusion as the complainant has said that he deposited Rs.25,000/- in 1971. The appellant has failed to substantiate his statement through credible evidence and no interference is required in the judgment and order in question. The grounds of the present appeal are not sufficient and the same is liable to be dismissed.

 

The appeal is dismissed with impugned judgment and order dated 30-04-1997 passed in the complaint no. 229/1995 by the District Forum/Commission, Kanpur Nagar is confirmed.

 

Both parties shall bear their own costs..”

 

4. Ld. Counsel for Petitioner has argued that the Complaint is barred by limitation. The deposit of Rs. 25,000/- was made on 15.05.1971, and an interest payment of Rs. 10,000/- was subsequently made in 1981. Following this, the Complainant did not raise any further allegations against the Petitioner. It is crucial to note that the Consumer Protection Act was not in existence at that time, and it was only introduced in 1986 and became effective on 15.04.1987. Despite this, the Complaint was not filed until 26.02.1996, rendering it grossly time-barred. No application for condonation of delay accompanied the Complaint, nor was any explanation for the delay was mentioned.

 

5. It has also been contended that the District Forum in Kanpur Nagar did not have the territorial jurisdiction to decide the Complaint. The Petitioner's office is located in Ghaziabad, with no office in Kanpur. The monetary deposit was made at the Ghaziabad office, and there were no transactions that took place in Kanpur. Therefore, no cause of action arose in Kanpur, and the District Forum was without jurisdiction to adjudicate the complaint. The Ld. State Commission failed to address this issue in the impugned Order, and no finding was provided on this point. 

6. The Appellant has also contended that both the Ld. Fora below wrongly relied on the letter dated 01.12.1993, which was presented by the Complainant to support his case. This reliance was an error, as a closer examination reveals that this letter was actually addressed to one Mrs. Sukhjinder Kaur, and not to the Complainant. Thus, the letter should not have been considered in the present matter.

7. It is also the submission that the Petitioner's records were completely destroyed in the riots that occurred in 1984, following the assassination of Prime Minister Smt. Indira Gandhi. Consequently, the Company is unable to produce any documents; That on similar factual and legal grounds, the same Bench of the State Commission had allowed the appeal in the case of “Atma Steel Ltd. Vs. Smt. Manjeet Kaur, Appeal No. 2341 of 1997”, resulting in the setting aside of the Order passed by the District Forum; That the interest rate awarded at 18% is unreasonably high as the Complaint had only sought the principal amount along with interest, without specifying any particular rate.

8. In support of the contention that the Complaint was barred by limitation, Ld. Counsel for the Petitioner has relied upon the following decisions of this Commission as well as of the Hon’ble Supreme Court –

9. This Commission has carefully perused the ratio of the aforesaid decisions, and is of the considered opinion that the same would not apply to the facts and circumstances of the present case, for which the reasons are being recorded in the succeeding paragraphs.

10. In “E. Aboo and another Vs. Tata Engineering” (supra), the Complaint had been dismissed as this Commission in that case was of the view that the cause of action for the same had arisen before the Consumer Protection Act, 1986 had come into force as the transaction between the parties had taken place in 1979 and 1981.  It is also seen from the summary as noted in the very first paragraph of the judgment in the said case that the defective vehicle which the Complainants- E. Aboo & Anr. had purchased from the Opposite Parties was not functioning properly, had become an economical burden and liability for the Complainants, and had also been surrendered back to the Branch-cum-Service Centre of the Respondent No. II in the month of September, 1985 itself when the Consumer Protection Act had not even been enacted. Furthermore, it was noted in the judgment that prior to filing of the Consumer Complaint, the Complainants had also approached the MRTP Commission on the same issue, and that their Complaint had been dismissed by the said Commission, on account of which the Consumer Complaint in any case was also barred by Res judicata.  This Commission in Para 4 of its aforesaid judgment had also noted that the Complainant had failed to specify what was the deficiency in service and what was the precise defect in the design of the disputed vehicle and in what respect its performance was deficient vis a vis the performance specifications.  It was in the backdrop of all these factors that the aforesaid Complaint was dismissed by this Commission.  In the present case, however, while admittedly the alleged investment by the Complainant and his father had been made way back in the year 1971, but it is also a matter of record that vide a letter dated 1.12.1993 addressed to Mrs. Sukhjinder Kaur, widow and legal representative of Major Dara Singh (since deceased) and mother of the surviving Complainant- Harveer Singh, the Appellant had not disputed its liability, but had only contended that it was unable to make the requisite payment with interest to her as the detailed records were no longer available with it, on account of which it had even requested Mrs. Sukhjinder Kaur to send the detailed information alongwith evidence of the same in respect of the amount paid and returned back towards the interest and principal, so as to enable the Appellant to once again confirm and act accordingly.  The aforesaid letter dated 1.12.1993 was therefore well after the Consumer Protection Act, 1986 had already come into operation, and in such circumstances the willingness of the Appellant to make the requisite payments after verifying the detailed information to be supplied to it, constituted a continuing cause of action for filing the Complaint.  In such circumstances, it cannot be said that the Complaint in the present case could have been dismissed on account of any defect of limitation.

11. The decision in “Punjab Urban Development Authority Vs. S. Gurinder Singh” (supra) is also not applicable as the said Complaint had been dismissed on the technical ground that it had been filed after the period of limitation had expired, but no application for condonation of delay had been filed.  In the present case, as already noted earlier, the Complaint itself when filed was based on a continuing cause of action, and therefore could not be regarded as time barred on account of which the Complainants had no occasion to file any application for condonation of delay.  

12. The decision in “Shakti Tubes Ltd. Vs. State of Bihar” (supra) is also totally inapplicable to the facts and circumstances of the present case.  The ratio of the decision which the Appellant seeks to emphasize is that even in case of a welfare legislation, it has no retrospective/retroactive operation to benefit a litigant.  It may be mentioned that the concerned legislation in that case was “Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993” and not the Consumer Protection Act, 1986 which, as already observed earlier, was well into operation when in the year 1993 the Opposite Party had tacitly acknowledged its liability to make the relevant payments after the details were to be supplied to it by the Complainant’s deceased mother, and so there can be no parallel between the facts of the present case and those of the decision relied upon by the Appellant.

13. In “Commissioner Rajasthan Housing Board Vs. Hiralal Chanda” (supra), the Complaint was dismissed as being barred by limitation since in that case the allotment/registration of the Complainant in respect of the Middle Income Group ‘B’ category house was cancelled by the Housing Board as far back as on 29.5.2000, while the Complaint was filed 11 years later in the year 2011 which was therefore manifestly barred by limitation.  On the other hand, in the present case, at no point of time, the Appellant/Opposite Party had categorically denied its liability to pay the outstanding dues of the Complainant’s deceased parents  alongwith interest adding up from time to time, and its failure to do so constituted a continuing cause of action.  

14. Similarly, the ratio of the decision in “Experion Developer Pvt. Ltd.  Vs. Himanshu Deewan”(supra) also does not apply to the present case, as in that case the Complaint had been filed seeking refund of the charges allegedly realised by the Developer from the Complainants wrongfully towards the alleged increase in the Apartment areas, which charges were paid by the various Allottees/Complainants between December, 2017 to August, 2018, and the respective Conveyance Deeds were executed in their favour between April, 2018 to September, 2019.  The Complaint for refund of those charges was however filed on 25.2.2022, which was therefore long after the limitation either from the last date of payments made by the Complainants, or even from the date of execution of Conveyance Deeds in their favour had lapsed.

15. In contending that the District Forum in Kanpur had no territorial jurisdiction to entertain the Complaint, reliance of the Appellant is on the decision of the Hon’ble Supreme Court in “Soni Surgical Vs. N.I.C., 2010 (1) SCC 135 SC, in which it had been held that the Complaint in the Consumer Forum at Chandigarh in a case where the Insurance Policy had been taken in Ambala was not maintainable.  In this regard, the specific contention of the present Appellant is that its Company’s office is situated in Ghaziabad and it had no office in Kanpur, the money was deposited in the Ghaziabad office and no transaction had taken place at Kanpur, and, on account of which, no cause of action has arisen there for which reason the District Forum in Kanpur had no territorial jurisdiction to entertain the Complaint.  The Appellant, however, would appear to be ignoring Section 11 (2) (c) of the Consumer Protection Act, 1986 which provides that the Complaint shall be instituted in a District Forum within the local limits of whose jurisdiction, - “the cause of action, wholly or in part, arises”.  Now in the present case, it was the specific averment of the Complainant in Para 2 of the Complaint that the Director of the Appellant Company had come to Kanpur and induced the Complainants and his father to deposit the money in their Company as security.  Such inducement itself can certainly be regarded as “part of cause of action” in its totality, since it is well settled that the expression “cause of action” means that “bundle of facts which gives rise to a right or liability”.

16. Even otherwise, it may be mentioned that while the provisions of Code of Civil Procedure may not be strictly applicable in consumer proceedings, but the principles governing the procedure in the CPC can also be resorted to in the given facts and circumstances of  any particular case. Section 21 (1) of the Code of Civil Procedure prescribes that – “No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity…..”  

17. In the present case however, as seen from the copy of the Order passed by the Ld. District Forum in the original Complaint No. 229 of 1995, the Complaint was decided Exparte against the Opposite Party/present Petitioner, as it had failed to appear before the Forum inspite of service of Notice, and also had not filed any Written Statement/Reply from its side. So, it becomes crystal clear that no objection as to territorial jurisdiction of the concerned Forum had been raised on behalf of the Petitioner before the District Forum, and so the matter cannot be raked up later before the Appellate or Revisional Fora. 

18. The Petitioner is also aggrieved that both the Ld. Fora had wrongly relied on a letter dated 1.12.1993 filed on behalf of the Complainant, which was written to one Mrs. Sukhjinder Kaur, and not the Complainant.  It however transpires that the said Sukhjinder Kaur (since deceased) happens to be the wife of Late Major Dara Singh and mother of the Complainant- Harveer Singh, and so it cannot be said that the reliance on the contents of the letter in which the Petitioner had not denied any liability was misplaced.

19. It has also been the case of the Petitioner that it was not in a position to verify about its liability to make any payments, since all the records in its Office at Ghaziabad had been destroyed in the riots following the assassination of the then Prime Minister of the country, Smt. Indira Gandhi.  But from the aforementioned letter dated 1.12.1993, it is seen that the same was issued on behalf of the Petitioner Company from its Corporate Office located at 201, Ansal Bhawan, 16, Kasturba Gandhi Marg, New Delhi-110001.  It is not at all the case of the Petitioner that even its Corporate Office was destroyed or damaged in those riots, or has been affected in any manner for any other reason.  So, the excuse that it is not in a position to verify its liability due to non-availability of the detailed records is not satisfactory, as copies of the relevant records are in the normal course presumed to be maintained in the Corporate Office. 

20. For the same reasons, the contention of the Petitioner that the Complaint was barred by limitation as it pertained to a very old transaction originating in the year 1971 is also not tenable, since it is settled law that failure to provide a service promised amounts to a continuing cause of action.  In the letter dated 1.12.1993, the Petitioner had not categorically denied that it had any outstanding liability.  On the other hand, in Para 8 of the Memo of Appeal No. 2340 of 1997 filed by the Petitioner before the Ld. State Commission at Lucknow, it was its own averment, “8. That the Appellant never refused to pay the amount in question to the Respondent.”  It is settled law that where a party admits about its liability either directly to the Creditors, or even indirectly in any manner, without even a commitment to discharge the liability, such acknowledgement in itself continues to extend the period of limitation for raising a claim qua such liability

21. The Hon’ble Supreme Court in the matter of “Khan Bahadur Shapoor Vs. Durga Prasad, AIR 1961 SC 1236”, has held that the statement on which a plea of acknowledgment is based must relate to a present subsisting liability though the exact nature or the specific character of the said liability may not be indicated in words.  Words used in the acknowledgment must, however, indicate the existence of jural relationship between the parties such as that of debtor and creditor, and it must appear that the statement is made with the intention to admit such jural relationship.  Such intention can be inferred by implication from the nature of the admission, and need not be expressed in words.

22. The Hon’ble Apex Court in the matter of “Food Corporation of India  Vs. Assam State Cooperative Marketing & Consumer Federation & Ors., (2004) 12 SCC 360”; has also held that so long as the statement amounts to an admission, acknowledging the  jural relationship and existence of liability, it is immaterial that the admission is accompanied by an assertion that nothing would be found due from the person making the admission or that on an account being taken something may be found due and payable to the person making the acknowledgment by the person to whom the statement is made.

23. Again in “Asset Reconstruction Company Vs. Bishal Jaiswal and Anr., (2021) 6 SCC 366”; the Hon’ble Apex Court had held that it is not necessary that the acknowledgment of liability must be contained in a document addressed to the Creditor.  Under Section 18 of the Limitation Act, an acknowledgment of the present subsisting liability, made in writing in respect of any right claimed by the opposite party and signed by the party against whom the right is claimed, has the effect of commencing of a fresh period of limitation, from the date on which the acknowledgment is signed.

24. The Petitioner is also aggrieved that the same Bench of the State Commission had allowed its separate Appeal No. 2341 of 1997 arising out of very similar controversy in a separate Complaint filed by Smt. Manjeet Kaur, another close relative of the Complainant, but passed a different type of Order in the Appeal No. 2340 of 1997 arising out of the Complaint filed by the present Respondent.

25. This Commission has perused the Order passed by the State Commission in the aforesaid Appeal No. 2341 of 1997.  It is seen that the said Appeal was allowed and a similar Complaint filed by the Respondent’s wife -Smt. Manjeet Kaur was dismissed since the Ld. State Commission had taken notice of the fact that the Appellant Company had been closed in the year 1997 pursuant to which Case No. 185 of 1997 had been started which was pending with the Industrial and Financial Reconstruction Board, only from where the Complainant/Respondent in the said Complaint could have obtained any relief.  But in the present case, it is seen from the entire Memo of the Appeal No. 2340 of 1997 filed by the Appellant before the Ld. State Commission which is on record as Annexure-5 (Pages 45 to 52), that there was no whisper anywhere that the Appellant Company had been shut down or that proceedings were pending before the Industrial and Financial Reconstruction Board, as was the case in Appeal No. 2341 of 1997.

26. It is well settled that in its revisional jurisdiction, this Commission cannot go into re-appreciation of evidence in a case of concurrent findings, and the scope available to this Forum in its revisional jurisdiction is very limited. The Hon’ble Apex Court in “Rajiv Shukla Vs. Gold Rush Sales and Services Ltd. & Anr., Civil Appeal No. 5928 of 2022, decided on September 8, 2022”; in this regard has observed inter alia –

 “7.1 At this stage, it is required to be noted that on appreciation of evidence on record the District Forum as well as the State Commission concurrently found that the car delivered was used car.  Such findings of facts recorded by the District Forum and the State Commission were not required to be interfered by the National Commission in exercise of the revisional jurisdiction.  It is required to be noted that while passing the impugned judgment and order the National Commission was exercising the revisional jurisdiction vested under Section 21 of the Consumer Protection Act, 1986.  As per Section 21(b) the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.  Thus, the powers of the National Commission are very limited.  Only in a case where it is found that the State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction.  In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record.  Therefore, while passing the impugned judgment and order the National Commission has acted beyond the scope and ambit of the revisional jurisdiction conferred under Section 21 (b) of the Consumer Protection Act.”

 

27. Again in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd., Civil Appeal No. 2588 of 2011, decided on 18.3.2011, the Apex Court had set aside the decision of this Commission by virtue of which the concurrent decisions of the Ld. District Forum and the State Commission, which had gone in favour of the Complainant, were set aside with the following observations –

“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums.  The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts.  This is not the manner in which revisional powers should be invoked.  In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed.  It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.”

 

28. In view of the reasons noted in the preceding paragraphs, this Commission finds no merit in the present Revision Petition which is consequently dismissed.  Parties to bear their own costs. 

29. Pending application(s), if any, also stand disposed off as having been rendered infructuous.