1.       The present appeal has been filed under Section 19 of the Consumer Protection Act, 1986 (corresponding section 51 of the Consumer Protection Act, 2019) by Maria Goretti Beck @ Maria Beck (hereinafter referred to as the ‘complainant) assailing the Order dated 04.03.2020 passed by the State Consumer Disputes Redressal Commission, West Bengal (hereinafter referred to as the ‘State Commission’) in complaint No. 433 of 2016 whereby the complaint was dismissed as barred by limitation.

2.       Although the registry has reported that there is a delay of 308 days in filing the appeal but in view of the order of Hon’ble Supreme Court in Suo Motu Writ Petition No. 3 of 2020, the appeal is within limitation.

3.       The facts, in brief, of the case are that the complainant being a member of Christian Tribal Community invested her savings with the respondent no. 1, the proposed society, namely, Infant Jesus Co-operative Housing Society Limited, by purchasing its two shares in order to incorporate her name in the respondent no. 1 under the West Bengal Co-Operative Societies Registration Act, 1983. The complainant has stated that she was assured that under the project which was going to be constructed at Beledanga Main Road, Muchipara, P.O. Jote Shibrampur, P.S.- Maheshtala, Kolkata- 700141 within the District South 24 Parganas, she would also be availed with respective flat in a very reasonable amount. The complainant has also stated that she had paid an amount of Rs.5,00,000/- as contribution for construction work for which money receipt was issued in her favour on 09.06.2004. Subsequently, she was induced to pay an additional amount of Rs. 2,50,000/- and a receipt to that effect was issued on 05.09.2004 aggregating Rs.7,50,000/-. The complainant states that on several occasions she and her representative visited the address and requested the respondent no. 1 to handover the possession of the respective flat and to execute the deed of conveyance but all the requests and persuasions including legal notice dated 05.11.2015 went in vain.

4.       Being aggrieved, the complainant filed a complaint before the State Commission with the following prayer:-

(a) Pass an order directing to the opposite parties to pay back the amount of Rs.7,50,000.00/- which was wrongfully kept by the opposite parties;

(b) Pass an order directing to the opposite parties to pay interest @ 18% per annum for 12 years (September 2004 to August 2016 i.e. till the filing of this case) which amounts to Rs.16,20,000.00/- and/or Interest pendente lite @. 18 % per annum;

(c)  Pass an order directing to the opposite parties to pay an exemplary compensation of Rs.5,00,000.00/- due to negligence, concealment mislead, deprivation, misrepresentation, parry, wrongfully kept the amount;

(d)  Damages for the harassment, financial loss, mental agony assessed at Rs.5,00,000.00/- ;Cost of the litigation to Rs.1,00,000/-.

(e) Costs of the present litigation of Rs.10,000.00/- to the Complainant;

(f) Any other order/ orders as Your Lordships may deem fit and proper in the instant case in the interest of justice.

5.       The respondents contested the complaint by filing written objection that the instant complaint has been filed after more than 12 years from the date of its so-called causes of action and the complaint has been filed for recovery of certain amount along with appropriate interest, which is beyond the purview of this Commission and the complaint was liable to be dismissed.

6.       The State Commission, vide its order dated 04.03.2020 dismissed the complaint as barred by limitation.

7.       The complainant has filed the present appeal before this Commission seeking setting aside of the order dated 04.03.2020 of the State Commission.

8.       Before this Commission, the counsel for the complainant has strongly argued that the amount deposited with the respondent no. 1 has been kept in suspense account and the respondent no. 1 has been showing the same every financial year in the books of respondent no. 1 duly audited by the appropriate authority. He further argued that the complainant has been pursuing for flat or for her deposited amount since beginning but the respondent no. 1 purposely evaded her claim and on 12.07.2016 the respondent no. 1 through its advocate asked for the corroboration of deposits with the records and in pursuance to the same the complainant once again supplied the same through her notice/reply letter dated 26.08.2016. Hence, there is a continuing cause of action and the complaint filed before the State Commission is within time. He further argued that he is waiting for the flat since 2004 but the respondent no. 1 had neither handed over the flat nor has refunded the deposited money to the complainant. In support of his contention, he placed reliance on the following decisions:

1. The Secretary, Thirumurugan Co-operative Agricultural Credit Society-vs. M. Lalitha (Dead) AIR(SC) 448(3)/[2004]
2. State of Karnataka vs. Vishwabharathi House Building Coop. Society and Others (2003) 2 SCC 412

9.       Further, it was argued that at the time of investment with the respondent no. 1, apart from the consideration amount, although the respondent no. 1 also received membership fee of Rs.200.00 and Rs.1000/- for allotment of 2 shares @ Rs.500/- each from the complainant and the same was clearly specified in the money receipt issued in her favour, but the respondent no. 1 has been purposely denying the complainant as a member of the respondent no. 1. while and the complainant has been seriously prejudiced from the same. He further argued that all the respective flats located in Block I and II in the said building were allotted to the respective members of the respondent no. 1 in very least amount except the appellant/complainant even though she invested such a bigger amount in comparison of others at very initial stage when the respondent no. 1 was only proposed to be created and had not been registered under the West Bengal Co-operative Societies Act, 1983.

10.     Further, it was submitted that on the one hand that the respondent no. 1 was asking for verification of the payments made by the complainant with the records and kept her deposits in their suspense account whilst on the other hand claiming an amount not less than Rs.25 lakhs from the complainant towards consideration amount of the flat, which is completely arbitral and illegal. It is also irrelevant that who had received the bank draft and issued the money receipts to the complainant because those two bank drafts were in favor of the respondent no. 1 and they had been credited in the bank account of respondent no. 1. Further, the respondent no. 1 did not submit any credible evidence before the Hon'ble State Commission which clearly show that no credibility can be attached to the version/deposition of the respondent no. 1. Even the respondent no. 1 did not advert to any material evidence before this Hon'ble Commission. He further argued that respondent no. 1 traveled beyond their written version/objection but it is also settled law that the parties can lead evidence limited to their pleadings and parties while leading evidence cannot travel beyond pleadings. If the parties are allowed to lead evidence beyond pleadings then the sacrosancy of pleadings comes to an end and the entire purpose of filing pleadings stand defeated.

11.     The learned counsel for the respondent no. 1 has rebutted the claims made by the complainant contending that according to Section 2(i)(d) of the Consumer Protection Act, 2019, the appellant cannot be considered a consumer but rather an investor in the respondent no. 1 seeking profit. It was further argued that the respondent no. 1 is governed by the West Bengal Cooperative Societies Act, 1983, now amended by the Act of 2006 and the West Bengal Cooperative Societies Rules, 2011. Pursuant to these statutes, any individual claiming ownership of a flat in the respondent no. 1 must apply for membership in accordance with Rule 131 at the time of respondent no. 1 registration or soon thereafter. However, the appellant failed to comply with this statutory requirement, neither applying for membership at the time of registration nor thereafter. He further argued that as per claim of the complainant that she invested the amount of money i.e. Rs.5.00 Lacs on 09.06.2004 and Rs.2,50,000/- on 05.09.2004 i.e. much before of the registration of the respondent no. 1, which was registered on 23.12.2005 and the respondent no. 1 bears no obligation to individuals who invested prior to its registration.

12.     Learned counsel for the respondent no. 1 has argued that the complainant sought refund after a lapse of more than 12 years from the date of investment. She sought refund in the year 2015, which is barred by limitation. The complainant has not also filed any application for condonation of delay in filing the complaint under section 17 of the Consumer Protection Act, 2019. As per provision of the section 24A of the Consumer Protection Act, 1986 (corresponding section Section 69(1) of the Consumer Protection Act, 2019) any dispute is to be filed within 2 years from the date of cause of action. But in the instant case, the cause of action arose on 09.06.2004 and 05.09.2004 and the complainant filed this instant complaint case in the year 2016.

13.     In the instant case, the complainant deposited the amount in the year 2004 and sought refund of amount in the year 2014 and filed the complaint case before the State Commission on 28.09.2016 relying on the denial letter dated 12.07.2016 of the advocate on behalf of the respondent no. 1, while the date of the denial letter cannot be made the basis for cause of action. In support of above contention, reliance has been placed on:

1.  V. Kumhambu Nair -Versus Thresiamma Officer in charge Rubber Marketing Cooperative Federation & Others 2019 SCC on line NCDRC 1242
2. Kandimalla Raghaviah Versus National Insurance Company and another 2009 (7) SCC 768

14.     Heard the learned counsel for both the parties and have gone through the material available on record.

15.     The question which falls for our consideration is as to whether the complaint filed before the State Commission is barred by limitation.

16.     The law of limitation requires delay for each day of delay to be explained after expiry of the period of limitation.  It is necessary that this explanation is rational, reasonable and realistic and to be acceptable.  In the instant case, the complainant has taken the ground that the cause of action is a continuing one while the cause of action has arisen on 09.06.2004 and 05.09.2004. In the instant case, the complainant had not filed any application for condonation of delay in filing the complaint and the complainant has dealt with the complaint in a casualo manner.

17.     In State Bank of India vs B S Agriculture Industries (I) (2009) 5 SCC 121 decided on March 20, 2009, it has been held by the Hon’ble Supreme Court that:

“It would be seen from the aforesaid provision that it is peremptory in nature and requires the consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in Section 24 A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within the limitation period prescribed thereunder.

12. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section24 A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.”

[Emphasis added]

18.     The Hon’ble Apex Court has laid down that the settled legal proposition of law of limitation under the Consumer Protection Act has to be applied with all its rigour when the statute so prescribes, though it may harshly affect a particular party. The Appellant has not been able to provide adequate and sufficient reasons which prevented him to approach this Commission within the limitation.

19.     The Hon’ble Supreme Court has also held that party who has not acted diligently or remained inactive is not entitled for condonation of delay. The Hon’ble Supreme Court in R. B. Ramlingam vs. R. B. Bhavaneshwari, I (2009) CLT 188 (SC) has also described the test for determining whether the petitioner has acted with due diligence or not and held as under:

"We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

20.     The Hon’ble Supreme Court in Ram Lal and Ors. Vs. Rewa Coalfields Limited, AIR 1962 Supreme Court 361 has held as under:

“It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

[Emphasis added]

21.     The burden is on the applicants to show that there was sufficient cause for the delay. The expression ‘sufficient cause’ has been discussed and defined by the Hon’ble Supreme Court in the case of Basawaraj & Anr. Vs. The Spl. Land Acquisition Officer, 2013 AIR SCW 6510 as under:

“Sufficient cause is the cause for which defendant could not be blamed for his absence. The meaning of the word “sufficient” is “adequate” or “enough”, inasmuch as may be necessary to answer the purpose intended. Therefore, the word “sufficient” embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, “sufficient cause” means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted diligently” or “remained inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever he court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See: Manindra Land and Building Corporation Ltd. V. Bhootnath Banerjee & Ors, AIR 1964 SC 1336; Lala Matadin V. A.Narayanan, AIR 1970 SC 1953; Parimal V. Veena alias Bharti AIR 2011 SC 1150 L2011 AIR SEW 1233); and Maniben Devraj Shah V. Municipal Corporation of Brihan Mumbai, AIR 2012 SC 1629: (2012 AIR SCW 2412).

…………..

It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. “A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.” The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim “dura lexsedlex” which means “the law is hard but it is the law”, stands attracted in such a situation. It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute.

………..

The law on the issue can be summarized to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the “sufficient cause” which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamount to showing utter disregard to the legislature”.

[Emphasis supplied]

22.     Further, in Anshul Aggarwal Vs. New Okhla Industrial Development Authority, (2011) 14 SCC 578, the Hon’ble Supreme Court has advised Consumer Forums to keep in mind while dealing with such applications the special nature of the Consumer Protection Act. The Hon’ble Supreme Court has held as under:

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this court was to entertain highly belated petitions filed against the orders of the consumer foras."

[Emphasis supplied]

23.     The purpose of Section 69 of the Consumer Protection Act, 2019 (corresponding to Section 24 A the Consumer Protection Act, 1986) is to ensure that the provisions of the Consumer Protection Act as a beneficial legislation are not diluted through challenges which cause cases to be prolonged through litigation even in Consumer Fora.  The complainant has not been able to provide adequate and sufficient reasons which prevented them to approach this Commission within the limitation.  Condonation of delay is not a matter of right and the applicants have to set out the case showing sufficient reasons which prevented them to come to the Court/Commission within the stipulated period of limitation. 

24.     Having considered the facts and circumstances of the case, and upon perusal of evidences on record, it is clear that the complainant paid a total of Rs.7,50,000/- vide date 09.06.2004 and 05.09.2004 as “contribution for construction work” and the deposits were made before the registration of Co-Operative Society. I am of the view that there is no cogent proof that the said money was deposited for a specific flat or was there any promise of a flat. The complainant requested a refund of the aforementioned amount on 20.03.2015, through a letter to the chairman of the respondent no. 1 and subsequently filed a complaint in 2016 over 12 years after the alleged cause of action accrued. Further, the claim, if any, is barred by limitation as the law is very clear that a legal notice cannot extend the period of limitation.

25.     In view of the above discussion, I am of the view that the State Commission has passed a well-reasoned order. The appeal is dismissed.