ORDER

25.01.2024

SH. RAJESH, MEMBER

1. Vide this order we will be deciding the admissibility of the present complaint.
2. A complaint has been preferred by complainants seeking direction to OP to refund Rs. 1,00,000/- paid on account advance payment for the tour package booked by OP for complainants.
3. It is stated that complainants dealt with the OP for international Tour Package and paid advance of Rs.1,00,000/- on 13.02.2020 vide cheque No.232388 drawn on Punajb National Bank, Ashok Vihar, Delhi and the same has been credited in their account on 15.02.2020. This advance money was given for Scandinavia Group Holiday Package which was to commence in June' 2020 but due to spread of pandemic Covid 19, the OP cancelled the tour from his end.
4. It is stated that that before the booking and during negotiation time, as per the terms & conditions vide e-mail dated 06.02.2020, OP committed, if tour would be cancelled by any reason then they would refund the full amount without deducting a single penny. Because of earlier experience of complainants with OP, from 07.02.2020 to 11.02.2020, complainants had clarified with OP regarding cancellation policy and they acknowledged that if tour would be cancelled, then complainants’ could demand the additional money over and above the refund amount because next package would be costlier to us due to peak season rates.
5. It is stated that that on 22.04.2020 when complainant asked for status of scheduled tour than in a reply on 26.04.2020 the OP informed complainants to wait till quarantine period. Thereafter the OP conveyed to complainant that they would inform them as soon as possible for next tour but no reply had received from OP.
6. It is stated that that on 02.06.2020 complainants requested for refund of money and shared their Bank details but OP replied on 06.06.2020 and emailed four credit notes of Rs 25,000/- each to be utilized for future package with a validity of 1.5 years.
7. It is stated that that In May & June 2021, complainants again followed OP regressively through phones and whatsapp regarding redemption of credit notes issued by OP but all were in vain.
8. It is stated that after following many times by way e-mail and of whatsapp message, and the telephonic calls till 07.12.2021 OP replied on 08.12.2021 and informed complainant that "once international departure resumes they will inform complainants about the tour for same destination.
9. It is stated that after waiting for so long, complainants again wrote an email dated 17.06.2022 to OP about "waiting for our booking status" but no response was received till date of filing present complaint.
10. That thereafter complainants have been trying through phones and posts but no response has been initiated by the OP. 
11. It is stated that complainants have suffered mental and physical agony besides financial loss. Hence the present complaint.  
12. It is stated that that due to the negligence and cheating act by the OP, loss and injury due to deprivation, harassment, mental professional practice for which complainants are entitled of compensation.
13. It is stated that the Opposite Party is liable for breach of contract as it has not complied acted extremely negligently and with the terms of the guarantee and has thrashed family dreams of vacation of complainants. Therefore they are liable to compensate complainants for the loss and injury caused by OP.
14. We have perused the contentions raised in the complaint and heard the complainant on the point of limitation of the present complaint.
15. From the bare perusal of the facts and allegations made in the complaint by the complainant it is apparent as per the averments made in the complaint by the complainants that the cause of action in favour of the complainants and against the OP firstly arose on 02.06.2020 when complainant requested for refund of the advance amount to OP but same was declined on 06.06.2020 via Email instead credit notes were issued in favour of complainants by OP. Therefore cause of action finally arose on 06.06.2020.  
16. Therefore the present complaint should have been filed on or before 05.06.2022 i.e. within two years of arsing of cause of action, however, same has been actually filed on 05.12.2023. Apparently the present complaint has been filed with a delay of one year, six months. Now it is also to be considered that subsequent events i.e. communication between the parties as claimed by the complainant is sufficient ground to exercise our discretion to condone this huge delay of one year, six months in filing the present complaints. No application praying for condonation of delay of one year, six months has been preferred by the complainants.
17. Let us now peruse the relevant provisions of C.P. Act, 2019 dealing with the limitation same is reproduced as under.

Section 69 Limitation:—

(1) The District Forum, the 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.

(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 complaint 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.

18. In State Bank of India vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP)=JT 2009 (4) SC 191, it was held as under: 

It would be seen from the aforesaid provision that it is premptory in nature and requires 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 reasons 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 24A (Corresponding Section 69 of C.P. Act, 2019)  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. 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 Section 24A (Corresponding Section 69 of C.P. Act, 2019)  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.

19.  In Ram Lal and Ors. v Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed"

"It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on the 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 bonafides may fall for consideration; but the scope of the inquiry 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."

20.     In Office of the Chief Post Master General & Ors. Vs. Living Media Ltd. & Anr.", II (2012) SLT 312 wherein it was held by the Apex Court as under:

        "In our view, it is the right time to inform all the Government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of red-tape in the process. The Government departments are under a special obligation to ensure that they perform their duties with diligence and commitments. Condonation of delay is an exception and should not be used as an anticipated benefit for Government departments. The Law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the department for the delay except mentioning the various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay".

21. 10.    In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2013(1) CCC 525 (NS) : 2009(2) Scale 108, it has been observed.

                "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".

22. Similarly, in Oriental Insurance Co. Ltd. Vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it has been laid down as under:

    "There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of which is not to be swayed by sympathy or benevolence".

23. Section 69 of C.P. Act, 2019 provides that neither the District Forum nor the State Commission nor the National Commission shall admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. The term "cause of action" is of wide import and has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. It refers to all circumstances or bundle of facts which if proved or admitted entitles the plaintiff (complainant) to the relief prayed for. In the context of limitation with reference to a contract for tour package which could be arranged due to any justified reason the date of cause of action may refer to the date on which the customer demanded refund of the advance amount from service provider / tour and travel company.
24. Now applying the above discussed provisions of law and Principles laid down in the present case. As per admitted facts by the complainants that the cause of action in favour of the complainant and against the OPs finally arose on 06.06.2020 when OP declined request of complainant for refund. The present complaint is admittedly filed on 05.12.2023. However present complaint should have been filed on or before 06.06.2022 i.e. within a period of two years from the date when cause of action finally arose which is 06.06.2022 in the present case as stated above. Though thereafter the complainant spent considerable time in communicating and following up with the OP, however, same will be of no help to complainant since once a period of limitation starts, it cannot be enlarged or extended by subsequent events unconnected with cause of action against allegedly defaulting party.
25. On the basis of above statutory position, judicial pronouncements observations and discussions we find that the gross negligence, deliberate inaction and lack of bonafides is imputable on the part of present complainant. Accordingly, no sufficient grounds are made out for admitting the present complaint filed with the huge delay of delay of one year, six months in filing the present complaint. In our considered opinion present complaint is hopelessly time barred therefore the complaint filed by the complaint is dismissed being barred by limitation.
26. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving the application from the parties in the registry.

Order be uploaded on www.confonet.nic.in. File be consigned to Record Room.

Announced in open Commission  on 25.01.2024.

(SANJAY KUMAR )           (NIPUR CHANDNA)                 (RAJESH)

       PRESIDENT                         MEMBER                         MEMBER