MS. NIPUR CHANDNA, MEMBER
ORDER
24.05.2024
1. A complaint under Section 35 of Consumer Protection Act filed. In brief the facts are that complainant purchased membership of OP with title ‘Studio 3A Apartment, White Studio’ on 24.11.2012 vide membership ID no. 246735. It is alleged by the complainant that she paid the initial amount as well as the installments as agreed between the parties. It is further alleged by the complainant that she asked to the representative of OP Sh. Rohit Dixit having mobile no. 9015295787 to book the rooms at Resort or Hotel for her vacation trips on many occasions but under one pretext or other the OP show its inability for booking.
2. It is alleged by the complainant that after approaching on various occasions for booking the complainant did not get the required services from the OP as such she stopped making the payment of installment to the OP and in all she paid a total sum of Rs. 1,53,884/- to OP. It is alleged by the complainant that being aggrieved by the deficient services of the OP she requested OP vide email dated 27.06.2022 to refund the entire amount deposited by her. Vide email dated 02.07.2022 OP refused to refund the deposited amount taking the shelter of the refund policy as well as the agreement signed between the parties. The complainant also sent legal notice dated 07.11.2023 to the OP and the settlement talks were also carried out between the parties but no desire result came forward and finally vide reply dated 26.03.2024 OP turned down the entire request of the complainant constituting the cause of action for filing the present complaint, hence, this complaint.
3. The present complaint case is on admission stage. We have heard counsel for complainant Sh. Aman Batra on admission as well as limitation and have perused the record.
4. It is submitted on behalf of complainant that she purchased the membership of OP on 24.11.2012. She successfully paid the EMI against the membership till 2016. As per the record the complainant failed to pay the outstanding amount in the month of May, 2017 and for the first time she approached OP vide email dated 02.07.2022 for refund of the amount paid by her, again she sent an email dated 01.11.2023 to the OP for refund of the deposited amount and finally she sent legal notice dated 30.11.2023 thereby calling upon the OP to refund the money. OP sent the reply to the legal notice thereby rejecting her request for refund. It is further submitted by complainant counsel that reply to the legal notice dated 26.03.2024 itself is the evidence in respect to the continuous cause of action and hence the present complaint is well within limitation.
5. Let us peruse the relevant provision in respect of limitation provided under Consumer Protection Act, 2019.
As per section 69 of Consumer Protection Act, 2019: -
- 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.
- Notwithstanding anything contained in subsection (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 Comission , 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, as the case may be records its reason form condoning such delay.
6. A perusal of the aforesaid statutory position reflects that the complaint should be preferred within a period of two years of the accrual of cause of action.
7. Admittedly, the complainant had purchased the membership of OP in the year 2012. She has placed on record the copies of the email received from OP dated 19.05.2017 as well as 20.05.2017, in both the emails the OP has requested the complainant to pay the outstanding dues of Rs. 67,7444/- against the membership in question vide email dated 20.05.2017 the complainant requested OP to refund the deposit amount in response to that email the OP requested the complainant to forward her refund request on 8. The complainant sent legal notice dated 30.11.2023 to the OP thereby calling it to refund the amount deposited against the membership. The OP vide its reply dated 26.03.2024 specifically mentioned at its para 10 that on 31.03.2019 the membership of the complainant was terminated due to non payment of the outstanding dues. It is not the case of the complainant that she had not received the termination letter dated 31.03.2019 and if for the sake of arguments we can consider 31.03.2019 as the last date of accrual of cause of action for filing the present complaint, thereafter, also the present complaint is not filed within limitation.
9. Admittedly, on 31.03.2019 the OP had terminated the membership of the complainant due to non payment of outstanding dues. Hence, in our view the cause of action for filing the present complaint finally arose on 31.03.2019. The complainant ought to have approached this Commission on 31.03.2021, she filed the present complaint on 26.04.2024 i.e. after the delay of 3 years and 26 days of the accrual of the substantive cause of action for filing the present complaint.
10. In view of the above discussion, we are of the considered opinion that substantive cause of action for filing the present complaint arose 31.03.2019 the complainant ought to have file the present complaint within two year of the accrual of cause of action i.e. 31.03.2021. The complainant has filed the present complaint on 26.04.2024 i.e after the delay of 3 years and 26 days, the present complaint is therefore barred by limitation, hence, dismissed.
File be consigned to record room.
11. 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.
Announced in open Commission on 24.05.2024.
Sanjay Kumar Nipur Chandna
President Member
