Date :  20/09/2012     

Per Shri.B.A.Shaikh, Hon`ble Presiding Judicial Member.

1.       This complaint is filed U/Sec. 17 of the Consumer Protection Act.

2.       The complainant’s case in brief is that it purchased  bitumen          ( Asphalt/Dambar ) from the opponent company from time to time for the period starting from the year 1996 to the year  2000. The complainant also paid price there of from time to time  to the opposite party through demand drafts ( D.D. ) of the bank. At the time of payment  complainant used  to pay some excess amount which  remained due from he opponent  company by way of said excess payment.  Details are given in respect of the said transaction and balance amount is shown in annexure “A” of  the complaint. The complainant made several representations to the opposite party to pay the said balance amount. Copies of the those representation are also annexed to the complaint as annexure  “B”. The opposite party gave  reply to the said representation of whcih office copies are annexed to the complaint as annexure  “C". The opposite party had assured to the complainant for payment of said balance amount after reconciliation of the accounts. However, the opposite party did not pay the said amount. The complaint was therefore initially filed before the Dist. Forum, Nanded which was registered as CC.No. 154/2009. It was rejected by the Dist. Forum on the grounds that the claim is beyond its pecuniary jurisdiction, barred by limitation and the service provided was for commercial purpose. The appeal bearing No. 651/2009 was preferred by the complainant before this Commission. It was withdrawn with the permission to file fresh complaint before appropriate Forum. Thereafter, this complaint is made before this Commission. The complainant has prayed that opponent be directed to pay its  balance amount of Rs 12,74,994/- with interest and compensation of Rs 10,00,000/- towards mental agony.

3.       The opposite party filed its written version and thereby it has denied the claim on several grounds. It raised preliminary objections  to the effect  the complaint is not maintainable as relief sought  is for settlement of account and that complaint is barred by limitation and this Commission has no jurisdiction to decide the complaint. It admitted that  the complainant purchased bitumen (Asphalt/Dambar) from it from time to time  and made several payments towards price of the same. It denied that  remaining balance amount  was not refunded to the complaint. It is contended that unless accounts are  settled between the parties, the balance amount claimed by complainant can not be accepted. No details were provided to the opposite party about the balance amount at any point of time though sought by the opposite party. The chart shown in the annexure “A” also does not give   the details as required for settlement of accounts. Therefore opposite party   prayed that complaint may be dismissed.

4.       The complainant filed affidavit of Shivaji Ramchandrarao Patil,  it’s Divisional Store Keeper to prove the claim and thereafter closed its evidence. The opposite party also filed affidavit of PRS. Srinivas ,it’s Sr.Divisional Consumer Sales Manager, to prove its defence. The advocate of both the parties also filed written notes of argument after both the parties closed their respective evidence.

5.       We have perused the evidence brought on record by both parties  and aforesaid notes of argument. We have also considered the material brought on record by both the parties.

6.       Following issue  arises for our determination. We also record our finding as against it for the reason given next there under:

Sr.No.                             Points                                                Finding

01.     Whether the complaint is barred by limitation              Yes.

02.     What order ?                                               As per final order.

                                           R E A S O N S

7.       The sale purchase transaction relating to  bitumen (Asphalt/Dambar)  in between both the parties is not disputed. The period of said transaction as from the year 1996 to the year 2000 is also not disputed. According to the advocate of the complainant, the cause of action is continuous and therefore there is no question of limitation. However, according to the advocate of the opposite party, the complaint is hopelessly time barred as it is filed on 25/03/2011 for claiming the alleged balance amount  for the period from 1996 to the year  2000.

8.       As per the provisions of Sec. 24-A  of the Consumer Protection  Act the period of limitation for filing the complaint is of two years from the date on which the cause of action has arisen.  In the instant case, the cause of action initially arose  in the year 1996. The last cause of action arose in the year 2000 i.e. the time when last transaction took place in between both the parties.

9.       According to the complaint the cause of action is continuous  as the opposite party in the reply given to it on their  communication admitted that they would refund the amount after settlement of accounts. The said two letters which are annexed in the complaint as annexure “C" show that the opposite party wanted certain documents from the complainant for reconciliation of accounts for starting process of refund. The said two letters are dated 11/07/2008 and 02/09/2008. Those two letters do not prove that the opposite party had admitted that the amount of Rs 12,74,794/- claimed in this complaint is due from it.  In our view calling of accounts statement for reconciliation does not give fresh  cause of action for filing the complaint. Hence, both the said two letters dated 11/07/2008 and 02/09/2008 are of no help to give  fresh cause of action to the complainant for filing the complaint. Even the complaint is not filed within two years from the dates of the said letters.

10.     We thus  find that no material is  produced before us by the complainant to show that the cause of action is continuous for filing the complaint before this Commission. Hence, we hold that as the complaint is filed after the period of two years from the date of cause of action it is hopelessly barred by limitation. Hence, without going into other contentions raised by the opposite party in the present case, we decide that as the complaint is barred by limitation, it is tobe  dismissed. Accordingly the aforesaid point No. 1 is decided in affirmative and following order is passed.

                   O   R    D    E  R  

1.       The complaint is dismissed.

2.       Both the parties shall  bear their own costs.

3.       Copies of this judgment and order  be sent to both the parties.

Pronounced on 20/09/2012