DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.246/08
Jindal Pipes Ltd.
1/23B, Asaf Ali Road
New Delhi-110002.
….Complainant
Versus
Scheinder India Pvt. Ltd.
Solitare Park, Building No.-6
Andher Kurla Road, Andheri (East)
Mumbai-400093.
Scheinder India Pvt. Ltd.
E-16, East of Kailash
New Delhi-110065.
….Opposite Party
Date of Institution : 16.04.2008
Date of Order : 24.05.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Shri U.K. Tyagi
Complainant has prayed for passing an award to direct OP(i) to refund an amount of Rs.188,000/- alongwith interest thereon @18% from the date of payment i.e. 16.7.2002 till the date of its realization; (ii) to pay a sum of Rs.1460000/- as compensation and damages for the deficiency of service etc. etc.
2. The brief facts leading to the case are that Shri P.K.Gupta, (Manager)(Purchase) had been authorized to file, institute, prosecute and conduct this case vide the Reso of the Board of Directors as the complainant is a registered company under the companies Act 1956. The complainant purchased a lift from M/s Scheinder India Pvt. Ltd (hereinafter referred as OP) for the personal use of the Chairman at its residence. The OP sent a proposal for supply and installation of one elevator of 7 passenger capacity at B-57 GK-I,New Delhi. The complainant placed a purchase order for the above priced at Rs.9.40 Lakhs. 20% advance i.e. 188000/- was made to the OP vide cheque No.314985 dated 16.7.2002. The warranty and maintenance clause provided interalia, that the warranty of materials supplied and workmanship of the elevator was for a period of 12 months from the date of PWD licence or 18 months from the date of supply of material at the site whichever is earlier. A copy of final proposal dated 22.7.2002 is annexed at annexure-C/4. The OP supplied the material at site on 2.4.2003 and gave a licence Reference No…..dated 27.3.2003 issued by Govt. of NCT of Delhi authorizing the use of the lift. The same letter is annexed at Annexure –C/5. On 9.4.2003, the complainant addressed a letter to OP as lift was not installed properly and not functioning smoothly. It was mentioned that lift was creating a lot of noise and jerks during operation. Alarm system is not functioning properly and lot of scratches and dents inside wall of the lift were noticed. Copy of the letter is exhibiting at annexure-C/6. Again on 15.4.2003, another letter was written stating that adequate action was not taken. Same is annexed at Annexure-C/7. The complainant wrote to head office – Mumbai of the Company informing about the defective installation of the said lift on 18.8.2003. The same is annexed as Annexure – C/8. It was mentioned that the lift did not function trouble free for even 15 days continuously. No response was received. On 30.8.2003, the complainant wrote a letter to M.D. of OP stating that lift was got repaired many a times by Delhi office but the lift never functioned properly even for 15 days continuously and lift has been lying in idle condition. It was stated that the complainant got the lift checked from outside agency who further informed that the lift was a defective one and requires further investment of Rs.2 Lakhs. Copy of letter dated 30.8.2003 is annexed at annexure-C/9.
3. On 2.9.2003, the OP wrote back to the complainant stating that the company’s service engineers visited the site in the morning and reported that it required overhauling and some spare parts were to be replaced. The button needs to be fixed. The letter mentioned above is annexed at annexure C-10. The complainant wrote letter dated 3.8.2003 calling upon OP to replace the lift and same request was reiterated by another letter dated 8.9.2003. On 23.9.2003 the MD of OP wrote the complainant assuring that they will make efforts to ensure that a hassle free service is provided.
It is alleged that the OP wrote to the complainant on 20.4.2004 informing that the agreement for comprehension maintenance was expired on 26th March 2004. And OP sent proposal to enter into a contract for comprehensive maintenance for the lift with the request to get the same processed. The complainant vide its letter dated 28.4.2004 replied that the lift started working satisfactory only from Oct. 2003 and prior to that, lift never functioned satisfactorily continuously even for 15 days. As agreed upon earlier as maintained by complainant that the warranty of the lift was till Oct. 2004 and OP was requested to implement the same. A copy of said letter dated 28.4.2004 is annexed as Annexure –C/14. OP vide its letter dated 3.5.2004 replied to the above letter asserting that the lift was supplied/handed over on 27.3.2003 and agreed free maintenance period cannot be extended as lift was used and service was also being provided. The complainant further stated that the lift could started satisfactorily only after having intervention of the MD of OP in Oct. 2003. The OP expressed its unavailability to continue to provide service on the basis of earlier agreement. On 26.4.2004, the complainant again wrote to extend the free maintenance till Sept. 2004 as lift started functioning only in Sept. 2003. A copy of the said letter is annexed as Annexures-C/17.
On this, OP acceded to above request as a special case and extended the free maintenance for another 3 months from 29the March 2004 to June 2004 and paid maintenance would strart from 29th June 2004 onwards vide its letter dated 3.7.2004. The complainant again requested to extend the period upto Sept. 2004 as June 28, was already over. But OP did not accede to the request. On 16.10.2004, the OP wrote to complainant requesting to make payment towards annual maintenance and outstanding payment towards handing over the lift. On its continuation, the OP wrote to complainant on 20.12.2004 intimating that they are suspending all services to the complainant with immediate effect as the complainant did not sign contract and did not make outstanding payment. The same is annexed as annexure-C/20. The complainant maintained that OP did not honour the agreement and lift did not function satisfactorily. As such, his OP was responsible for deficiency in service. Hence, the complainant may be granted refund alongwith interest on failures of the OP. The complainant also alleged OP being example of unfair trade practice. It is also averred that the defective lift had put the life of Chairman and its family on several risk thus causing immense mental agony and harassment to them.
The OP, on the other hand, has maintained vide its reply that the instant complain was highly time-barred and cannot be permitted to continue. As would be seen in the above paras that the complainant himself vide its letter dated 28.4.2004 admitted that lift had started functioning satisfactorily since Sept./Oct. 2003 only. And thus complaint was filed on 2008 after more than 4 years. Moreover, the OP suspended all services as intimated vide its letter dated 24.12.2004 as the complainant did not sign the agreement and make the outstanding payment. The OP had been corresponding with complainant all through as would be seen from the above paras. The OP further maintained that the complainant had violated the instructions of not allowing the 3rd party to inspect the lift. The complainant himself admitted the above vide its letter dated 30.8.2003.
5. Both the parties filed written submissions and evidence in affidavit. Rejoinder is on record so is written statement. Arguments were heard and concluded.
6. This Commission has gone into entire gamut of issues. It is noticed that the complaint is filed in 2008. All the correspondence between the OP and complainant pertains to 2003 to 2004. The complainant himself admitted vide its letter 28.4.2004 that the lift had started functioning hassle free only since Sept 2003. The correspondence between them continues upto 24.12.2004 when the OP took decision to suspend all services on account of non-payment and dishonour of the agreement as arrived at the time of execution of the lift. No complaint with respect to functioning of lift was taken up during this correspondence which suggest that lift was working satisfactorily and only dispute was with respect of free comprehensive service.
7. It is to be noticed that the OP has raised this point in its preliminary submission/objection asserting that the case is time barred. The complainant in its rejoinder stated that case is filed in time but the application u/s 24-A Consumer Protection Act, 1986 is found filed and same is pending decision. This has been noticed from the order-sheet of this case that the application was never taken up for consideration. Being the peremtory nature of this Section, it could have been disposed of at the earlier occasion. The Hon’ble National Commission in the case of Ashok Kumar Saina Vs. Delhi Development Authority in FA No.183 of 2007 has dealt the limitation aspect as laid down in Section 24A of the C.P. Act 1986 and maintained that “there are number of judgments of this Commission as also of the Hon’ble Supreme Court of India, including the most recent in State Bank of India Vs. B. S. Agricultural Industries (I) [AIR 2009 SC2210] that “Section 24A of Consumer Protection Act 1986 which prescribed limitation period for admission of a complaint, 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”.
8. It would be seen from the correspondence that the accrual of cause of action is somewhere in 2003/2004. Present complaint is filed in 2008. Application under section 24A of C.P. Act was found filed but no order on the said application was issued. The issue of limitation was not addressed even during the oral arguments. The counsel for the complainant did not press for disposal at any stage.
9. In view of the above facts and circumstances of the case as narrated above, this Commission respectfully following the above quoted judgment of Hon’ble Supreme Court, is unable to uphold the complaint clearly barred by limitation. Hence the complaint fails on both account i.e. time barring as well as on merit as discussed above elaborately.
No order as to the costs.
File be consigned to the record room after giving copy of the order to the parties as per rules.
