Date of Filing – 19.02.2016
Date of Hearing – 09.03.2017
The instant Revisional Application under Section 17(1)(b) of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the behest of the Opposite Parties to impeach the Order No.08 dated 11.12.2015 made by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-I (for short, Ld. District Forum) in Consumer Complaint no. 54/2015. By the impugned order, the Ld. District Forum rejected the application filed on behalf of the OPs/revisionists challenging the maintainability of the proceeding.
The Opposite Parties herein being complainants lodged the complaint under Section 12 of the Act against the Revisionists on the allegation of deficiency in services on the part of them. It is alleged by the complainants that being allured by the advertisement of the opposite parties/revisionists, Subir Sen i.e. the husband and father respectively of the complainants invested Rs.1,00,000/- only in DP Scheme of the OPs on 07.01.2008. It is also stated that OPs took the DP above by making a plea of sell of a shop room at the Sun City (Pailan) Project situated under P.S.- Bishnupur, Dist- South 24 Parganas. It has also been stated that the said investment was made for two years and it attained maturity on 07.01.2010. The complainants from a newspaper published on 22.09.2014 that the Police has started scanner against several Panji firm including Desire Agro Resource became alert and claimed refund of amount but the requests for refunding the amount could not yield any result. Hence, the opposite parties herein being complainants lodged the complaint with prayer for certain reliefs like – (a) refund of Rs.1,00,000/-; (b) interest @ 10% p.a. thereon; (c) compensation of Rs.1,00,000/- and (d) litigation cost of Rs.30,000/-.
After entered appearance, the opposite parties filed an application challenging the maintainability of the proceedings on several grounds – (a) the prayer for refund of money cannot be considered before a Consumer Forum; (b) the alleged payment by Subir Sen, since deceased was made on 07.01.2008 and the case has been filed in the year 2015 and as such it is barred by limitation; (c) the agreement between the parties, if any, is in respect of a shop room which is meant for commercial purpose.
After hearing both sides, the Ld. District Forum by the impugned order rejected the application filed by the OPs/revisionists challenging the maintainability. Being aggrieved by and dissatisfied with the said order, the instant revision petition has been filed.
I have heard Mr. Saikat Mali, Ld. Advocate for the Revisionists and also Mr. Alok Mukherjee, Authorised Representative of the opposite parties. I have also scrutinised the materials on record.
Having heard the Ld. Advocate for the Revisionists and also the Authorised Representative of the opposite parties and on having a look to the materials on record, it would reveal that the OPs herein lodged the petition of complaint with regard to an investment made by one Subir Sen, since deceased on 07.01.2008 with the revisionists’ company in respect of Rs.1,00,000/-. The death certificate available with the record goes to show that the said Subir Sen passed away on 25.02.2011. During his lifetime, deceased Subir Sen has never made any claim to that effect. For appreciation of the question, it would be worthwhile to reproduce the provisions of Section 24A of the Act which runs as follows –
“24A. Limitation period:- (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 contend 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”.
The above provisions is clearly peremptory and mandatory in nature requiring the Consumer Fora to see at the time of entertaining the complaint, whether it has been within the stipulated period of two years from the date of cause of action. In a decision reported in 2009 (4) CPR 17 (Kandimalla Raghavaiah & Co. – vs. – National Insurance Co. Ltd. & Anr.) the Hon’ble Supreme Court after adopting the view of the observations of the Hon’ble Apex Court reported in 2009 (3) CPR 107 (State Bank of India –vs- B.S. Agricultural Industries) has observed – “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”.
The facts remains that deceased Subir Sen made the payment on 07.01.2008 and the present complaint was lodged in the year 2015 after expiry of more than 7 years and in doing so, the complainants have not filed any application for condonation of delay. Therefore, on that ground alone, the Ld. District Forum should have dismissed the complaint as it was hopelessly time barred.
The record also reveals that by a complaint dated 11.02.2013, the complainant no.1 claiming herself to be the wife of deceased Subir Sen wrote a letter to the opposite party no.1 i.e. Managing Director, Desire Agro Resorts Development Pvt. Ltd. mentioning that amount of Rs.1,00,000/- was paid against a shop on the 1st floor of the Sun City (Pailan) on 07.01.2008. The question arises whether in such a situation, complainants may be considered as ‘consumer’ as defined in Section 2(1)(d) of the Act. For ascertaining the matter, it would be pertinent to reproduce the provisions of Section 2(1)(d) of the Act which runs as follows -
“Consumer means any person who –
- buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other then the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
- hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purpose”.
Explanation:- for the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment”.
The foregoing provision provides that the ‘consumer’ is a person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or avails of any services for a consideration which has been paid or promised or partly paid and partly promised. But a consumer complaint cannot be maintained for commercial purpose. In the case before hand, the complainants have mentioned about a shop room in the project of the opposite parties at Sun City (Pailan). The purchase of a shop room is certainly meant for commercial purpose. The complainants in their petition of complaint have not stated that they intended to purchase the property by means of their livelihood for their self-employment. Therefore, the Ld. District Forum ought to have observed that the complainants are not ‘consumer’.
The contents of the petition of complaint do not show that there was any agreement arrived at by and between deceased Subir Sen on the one hand and Desire Agro Resorts on the other hand. In absence of any agreement, it is quite difficult to understand what kind of services would be rendered by the opposite parties under the terms and conditions between the parties. It appears to me that the dispute involved in this case can only be decided after recording exhaustive evidence to be adduced by the parties in this regard and the instant dispute cannot be disposed of in a summary way.
Therefore, after giving due consideration to the materials on record and submission of the parties, I think that the Ld. District Forum has committed material irregularity in passing the order impugned which requires interference of this Commission sitting in revision.
For the reasons aforesaid, the revision petition is allowed on contest. However, there will be no order as to costs.
The impugned order is hereby set aside.
Consequently, the CC/54/2015 pending before the Ld. District Forum stands dismissed.
However, this order does not debar the complainants to approach the appropriate Court/Forum in accordance with law and in doing so, they may seek assistance of the decision of Hon’ble Supreme Court reported in (1995) 3 SCC 583 (Laxmi Engineering Works – vs. – P.S.G. Industrial Institute).
The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-I for information.
