Punjab

Ludhiana

CC/14/424

M/s Merlion Tools - Complainant(s)

Versus

Lally Motor Pvt Ltd - Opp.Party(s)

06 May 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  LUDHIANA.

                                                          C.C. No.424 of 04.06.2014                                                                                  Date of Order: 06.05.2015

 

M/s Merlion Tools Private Limited B-XXX, 5335, 21/1, Jeevan Nagar, Focal Point, Ludhiana through its Director Sh.Deepak Garg.

                                                                             ....Complainant

Versus

 

Lally Motor Private Limited, Dhandari Kalan, G.T.Road, Ludhiana through its Director.

                                                                             ….Opposite party

 

(APPLICATION FOR DISMISAL OF COMPLAINT BEING NOT MAINTAINABLE UNDER THE CONSUMER PROTECTION ACT, 1986.)

 

Quorum:-

                   Sh.R.L.Ahuja, President.

                   Ms.Babita, Member.

                  

Present:-     Sh.Rajesh Kumar, Adv. for complainant.

                   Sh.M.S.Sethi, Adv.for  Op.

 

                                                O R D E R

 

R.L.AHUJA, PRESIDENT:

 

 

1.                This order shall dispose off an application filed by the OP for the dismissal of complaint being not maintainable under the Consumer Protection Act, 1986. It is averred in the application that the present complaint is time barred as per provisions of Section 24A of the Consumer Protection Act, 1986. In this case, date of purchase is 10.11.2010 and further, the complainant claimed the interest @12% w.e.f.4.4.2012, whereas, the present complaint is preferred in 5/2014 and no application for condonation of delay filed with the complaint, so even from the both i.e. date of purchase of the vehicle on 10/.11.2010 or from 4.4.2012 when the present complaint is filed beyond the prescribed period according to Consumer Protection Act, 1986. Apart from above, the first complaint was withdrawn in the year 2013 and present second complaint was filed in the year 2014 and the complainant had not disclosed the date of withdrawal  and no application for condonation of delay filed with the present complaint as such present complaint deserves to be dismissed on this ground of limitation. The present complaint by the complainant through Director Deepak Garg is not maintainable in the present form as there is no authorization/resolution of the company authorizing Deepak Garg to file the consumer complaint before this District Forum and further it relates to filing of Civil suit. Further, copy of resolution as placed on record is without stamp of the complainant company as well as without date and reference number. It is nowhere proved that he is one of the present director of the company. Same objections were also taken in the first complaint filed by the complainant. The complainant is a commercial establishment and purchased the vehicle from the funds of the company as admitted by the complainant in para 2 in the first complaint, whereas, in the present complaint, it was modified by the complainant for personal use of its director but no name of director disclosed and meaning of personal use is also not disclosed as such, it can be presumed otherwise that said car is being used by all Directors also, hence purchased vehicle is being used by the complainant company for its business purpose and RC is also in the name of complainant company and complainant paid the cost of the vehicle from the funds of the company and availed depreciation. Furthermore, there is no pleading of hiring of service of the OP meant for self employment and livelihood of the company or its director as such, complaint by commercial establishment is ousted from the provision of Consumer Protection Act, 1986. The complainant is not a consumer under the provision of consumer Protection Act, 1986 and the dispute involving matter of ‘Tax’ is outside the purview of the Consumer Protection Act, 1986.

2.                In reply to the application, it has been submitted by the complainant in the preliminary objections that the application filed by the Op is not maintainable and is liable to be dismissed on ground that complainant is registered company duly incorporated under the provisions of Companies Act, 1956 and being legal juristic person also falls within the definition of Consumer under Section 2(d) of the Consumer Protection Act and the present complaint is instituted with due consent of this Hon’ble Forum after withdrawing the previous complaint on some technical grounds when complaint was pending for final arguments. The complaint is well  within the period of limitation as the same is filed with due permission after withdrawing the earlier filed complaint by consumer litigating bonafidely and said fact is well within knowledge of Hon’ble Forum as the same was withdrawn on technical ground by consumer’s counsel after obtaining prior permission from this Forum for filing fresh complaint on same cause of action against OP. Thus, after deducting the period spent on bonafidely prosecuting previously instituted complaint, which was filed on dated 5.9.2012 and withdrawn with permission of Hon’ble Forum on 22.8.2013, present complaint is filed within period of two years i.e. period of limitation from cause of action. There existed sufficient cause for not filing the application for condonation, however filing of application is also not mandatory where there exists sufficient cause for not making the application and is upto vested discretion of the Forum to condone the delay for preventing miscarriage of justice and as such, no application for condonation was filed by consumer. Reply on facts, it is submitted that the resolution dated 18.8.2012 is duly signed by the Director and on letterpad of company is already placed on record of the file of this Hon’ble Forum alongwith the Memorandum and articles of the Association of complainant company. OP by malpractice sold the vehicle by giving attractive offers which later on was not fulfilled by the OP. Further, it is submitted that the Director of the complainant company had purchased the vehicle for his own utilization and for earning their livelihood and for self employment and complainant company is engaged in business as mentioned in the complaint and not involved in doing any commercial activity with regard to the vehicle purchased from the OP. The complainant has already placed on record copy of email exchanged by the OP company from their official email address, moreover the amount so transferred will be proved by the complainant at the time of leading his evidence. Otherwise, all the allegations made in the application of OP are denied and made prayer for dismissal of the application with costs.

3.                During the course of arguments, learned counsel for the complainant has relied upon judgments titled as Vinod Kumar vs. Gurmail Singh and another-2012(1)RCR (Civil)-539(P&H High Court) and Kanya Lal(deceased) through legal representative and another vs. Nathu and others-1989(2)HLR-345(P&H High Court).

4.                We have considered the rival contention of learned counsel for the complainant and OP and have also perused the judgments placed on record by the counsel for the complainant and have also perused the record on the file very carefully.

5.                Perusal of the record reveals that it is an undisputed fact between the parties that the complainant company had purchased the Honda City VMT(Black Colour) car from the OP vide invoice No.233 dated 10.11.2010 which was registered vide registration No.PB-10-DM-6412 for personal use of its director. As per the allegations of the complainant that the complainant had paid the amount/expenses on account of registration charges to the OP but OP again made demand of Rs.19,500/- on account of registration charges which is illegal and the complaint had filed the first complaint No.728 dated 5.9.2012 which was within the period of limitation.

6.                Copy of order dated 22.8.2013 passed in complaint No.728 dated 5.9.2013 reveals that learned counsel for the complainant after suffering the statement that the complaint suffers from some technical defect, got the same withdrawn with the permission to file afresh complaint after curing the necessary defects in the complaint and the complaint was dismissed as withdrawn.

7.                Perusal of the record reveals that cause of action had accrued to the complainant on the date on the purchase of the vehicle in question i.e.10.11.2011, when he made the payment on account of registration charges and the date when the demand of Rs.19,500/- was raised by the OP on account of additional expenses of registration charges. But perusal of the order dated 22.8.2013 reveals that the complaint was got dismissed as withdrawn by the learned counsel for the complainant himself due to technical defect. But it is apparently clear from the said order that the period of limitation was not extended by this District Forum to file afresh complaint. Though, complainant can only avail the period which he spent during which the previously complaint remained pending. The previous complaint was got withdrawn on 22.8.2013 but the present complaint has been filed on 4.6.2014 i.e. after a lapse of more than 9 months. The complainant has only filed an application for condonation of delay. Though, the complaint is quite time barred as the complainant was required to file the complaint within the period of 2 years from the date of accrual of cause of action, during which, he has not filed, as such, the complaint is time barred.

8.                Section 24-A of the Consumer Protection Act, 1986 provides the period of Limitation Period, which describes as under:-

i)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.

ii) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfied 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.

9.                Further, the Hon’ble Supreme Court of India in a case reported as State Bank of India vs.M/s.B.S.Agriculture Industries (I)-(2009) CPJ-481, wherein, it was held that the provisions of Section 24-A are peremptory 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. That the expression, shall not admit a complaint’ occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. That the Consumer Fora’s were debarred from entertaining any complaint, which was beyond the period of limitation. Para -8 of the said judgment reads as under:-

“It would be seen from the aforesaid provision that it is peremptory 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 is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within 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 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.”

10.              Secondly, there is specific assertion in the complaint that Director of the company has purchased the car for his personal use. But it is proved fact that vehicle was purchased by the complainant in his name which is a private limited company and the payment was made out from the funds of the company. Under these circumstances, it cannot be presumed that the complainant company is a consumer.

11.              In view of the above discussion, we are of the opinion that the complainant is not a consumer under the provision of Consumer Protection Act, 1986 and complaint is time barred as the same is not maintainable. As such, present application filed by the OP for dismissal of complaint is allowed and consequently, complaint of the complainant is dismissed. Copy of this order be supplied to the parties free of costs. File be consigned to the record room.

 

                              (Babita)                               (R.L.Ahuja)

                     Member                                 President 

Announced in Open Forum.

Dated:06.05.2015

(Gurpreet Sharma)