Delhi

North East

CC/63/2015

Shri K. Viswanathan - Complainant(s)

Versus

Southern Star Co. OP - Opp.Party(s)

17 Sep 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 63/15

In the matter of:

 

	Shri K. Viswanathan S/o Shri K.K. Vydiar R/o A-702, Gayatri Apartments Sector 9,  Plot 9, Dwarka New Delhi-110077	Complainant
	Versus
1	Southern Star Coop (U) T&C Society Regd. Off. : E-2&3 DDA Market, (LSC) 1st Floor, MOR Land, New Rajendra Nagar New Delhi-110060	Opposite Party

 

DATE OF INSTITUTION:     JUDGMENT RESERVED ON:               DATE OF DECISION :

16.02.2015 17.09.2019 17.09.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Order passed by Ms. Sonica Mehrotra, Member

ORDER

1. Grievance of the complainant against OP in the present complaint arises out of a gold loan no. GL3676-DG availed of by complainant (in capacity member of OP’s society vide membership no. 13964) from OP society in July 2010 for a sum of Rs. 90,000/- against pledging of 67 gms of 22 ct. gold consisting of two bangles, one necklace and one chain. Thereafter, the complainant had taken another gold loan no. GL4544 after repayment of the previous one in July 2011 to be cleared by July 2012 but the complainant admittedly paid interest thereon from August 2010 till June 2012 after which he could not make any payment of interest as he got busy in the marriage ceremony of his daughter and when he approached OP on 18.01.2013 to make payment of arrears, he was informed that his gold ornament have already been auctioned and that he could collect his balance dues from head office of OP. Complainant objected to the arbitrary auction vide email dated 20.01.2013 to OP but no response came forth. The complainant collected the balance sum of Rs. 50,586/- left over after adjusting outstanding gold loan amount from OP. Complainant issued a legal notice to OP dated 05.01.2015 but to no avail. Therefore as a last resort, complainant filed the present complaint against OP in February 2015 praying for issuance of direction to the OP to pay Rs. 70,713/- as per the prevalent gold rate for 67 gm which was Rs. 2,11,050/-, outstanding being Rs 1,21,299/- after adjustment and after deducting Rs. 50,586/- thereof would be Rs. 70,713/- difference between amount paid and payable as per market rate of gold.
2. Complainant filed application u/s 24A (2) of CPA for condonation of delay in filing the present complaint on grounds that notwithstanding the cause of action which occurred on 18.01.2013 on acquiring knowledge of auction of gold, the complaint should have been filed 17.01.2015 but was filed after 30 days delay on 16.02.2015 due to complainant being out of station to his native village in December 2014 and was scheduled to be back in Delhi in January 2015 but could not return due to joint pain and marriage in the family and on his return on 06.02.2015 to Delhi, the complaint was preferred by 16.02.2015 and urged for admitting the same as the delay in neither deliberate nor intentional but due to circumstances beyond his control and prayed for condonation of delay.
3. Without going in to the merit of the case dealing with the pleadings placed on record by the both the parties, as per the settled law since issue of maintainability is to be decided before hearing the matter on merits as decided by Hon'ble Supreme Court in Hewlett Packard India Ltd Vs Shri Ramachander Gahlot in CA no. 7107/2003 decided on 16.02.2004, directions were issued to the OP to file reply to the application of complainant. OP vide reply took the preliminary objection that complainant has not given any reasonable explanation for delay in filing complaint by way of any medical proof of his illness or dates when he had gone to Kerala. OP filed copy of the auction notice dated 04.11.2012 and gold loan auction settlement letter dated 10.12.2012 alongwith original postal receipts in support of proper compliance and steps taken before putting pledged gold into auction and prior intimation of the same to the complainant. OP further objected to the legal notice 05.01.2015 having been issued by complainant’s counsel Delhi showing complainant presence in Delhi and prayed for dismissal of application.
4. We have heard the arguments advanced by both sides on the delay condonation application. Counsel for complainant objected to the pin code 110027 of address of the complainant  on the speed post receipt attached with auction notice dated 04.11.2012 to which OP countered as the same been correctly filed with written statement at page 13. OP further highlighted that the amount of Rs. 50,586/- was credited in complainant’s saving account on 03.12.2012 and duly withdrawn by him on 04.06.2013.
5. Section 24 A of CPA deals with the limitation period for complaints to be filed within two years from the date on which cause of action has arisen and contains a negative legislative mandate against admission of a complaint which has been filed after two years from the date of accrual of cause of action. In other words, the Consumer Forums do not have the jurisdiction to entertain a complaint if the same is not filed within two years from the date on which the cause of action has arisen. The term ‘cause of action’ pithily stated is bundle of facts for which a suit is brought and cause of action which gives occasion for and forms the foundation of the suit. The law on the said issue has been clearly settled by Hon’ble Supreme Court in so far as the nature and scope of Section 24 A is concerned in the landmark judgments of Kandimalla Raghavaiah & Co. Vs National Insurance Co. Ltd (2009) 7 SCC 768, State Bank of India Vs B S Agricultural Industries (2009) 5 SCC 121 and V. N. Shrikhande (Dr) Vs Anita Sena Fernandes (2011) 1 SCC 53.  The Hon’ble National Commission in the judgment of Jansatta Sahkari Awas Samati Ltd Vs Kone Elevators India Pvt Ltd I (2016) CPJ 190 NC held that mere sending a legal notice does not constitute a cause of action nor does it extend a period of limitation prescribed in the Act in view of settled proposition of law under Section 24 A of CPA as mandatory in nature as held by Hon’ble Supreme Court in B.S. Agriculture Case (Supra) in which the Hon’ble Apex Court took the view that Section 24 A is preemptory in nature and requires consumer Forums to see before it adjudicates the complaint that it has been filed within two years from the date of accrual of cause of action. The Hon’ble National Commission in the Judgment of Punjab Small Industries and Export Corporation Ltd and Anr. Vs Satinder Pal Singh II (2018) CPJ 245 (NC) has held that the complainant remaining inactive and suddenly sending legal notice to OP cannot entitle him for waiver of limitation period as any amount of correspondence cannot extend limitation period. The Hon'ble Supreme Court in B.S. Agricultural Industries (Supra) case held the view that it is the duty of the Consumer Forum to take notice of section 24 A 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 Hon'ble Supreme Court in State of Tripura & Ors Vs Arabinda Chakraborty & Ors I (2014) SLT 370 decided on 21.04.2014 held that simply by making a representation, period of limitation would not get extended. A person may go on making representations for years and in such an event the period of limitation would not commence from the date on which the last representation decided. The said ratio was followed by Hon'ble National Commission in Mahesh Nensi Shah Vs. Oriental Insurance Company Ltd. III (2006) CPJ 414 (NC) & recently in Samruddhi Co-operative Housing Society Ltd Vs. Mumbai Mahalaxmi Construction Pvt Ltd. I (2019) CPJ 347 (NC) in which Hon'ble National Commission held that period of limitation cannot get extended on the basis of exchange of communication between parties once cause of action has arisen as also laid down by Hon'ble National Commission in judgment of Ashok Kumar Sainia Vs Delhi Development Authority 2013 (2) AWC 457 (NC) . The Hon'ble Supreme Court in Muneesh Devi Vs U.P. Power Corporation Ltd (2013) 10 SCC 478 held that reply to legal notice cannot extend period of limitation and dismissed the complaint. The Hon'ble National Commission in judgment of Tehri Hydro Development Corporation Ltd Vs New India Assurance Co. Ltd 2003 (i) CPJ 31 (NC), while dismissing a time barred complaint for want of sufficient cause to condone delay, granted liberty to the complainant to approach appropriate Forum for seeking relief. The Hon'ble National Commission in M/s State India Express (Registered) Vs M/s Ranutrol Ltd and New India Assurance Co. Ltd in First Appeal Nos. 780/2006 and 116/2007 decided on 18.11.2013 held that wrong assumption of the date on which cause of action arose is no excuse to condone delay. The Hon'ble Supreme Court in Anshul Aggarwal Vs New Okhla Industrial Development Authority IV (2011) CPJ 63 (SC), Cicily Kallarackal Vs Vehicle Factory IV (2012) CPJ I (SC) , R.B. Ramalingam Vs R.B. Bhavaneshwary I (2009) SLT 701 and Ram Lal Vs Rewa Coalfields Ltd AIR 1962SC 361 held that while deciding an application for condonation of delay, the court has to keep in mind the special period of limitation prescribed under Consumer Protection Act 1986 and whether the petitioner has acted with reasonable diligence and has explained the delay properly with emphasis on necessity to show sufficient cause since the proof of sufficient cause is a condition precedent for exercise of discretionary jurisdiction for condoning delay. The Hon'ble Supreme Court in Bikram Dass Vs Financial Commissioner and Ors AIR 1977 SC 1221 held that Limitation Act is a hard task master and judicial interpretation has encased it within a narrow compass. Therefore a litigant who is not vigilant about his right must explain every days delay. Sufficient cause has been explained by Hon'ble Supreme Court in Basavraj and Anr Vs The Spl. Land Acquisition Officer 2013 AIR SCW 6510 as that delay was due to bonafide on the part of party and that party has not acted in a negligent manner or remain inactive; therefore meaning adequate and enough reasons which prevented the applicant to approach the court within limitation. The above ratios of Hon'ble Apex court were followed by Hon'ble National Commission in State of Haryana Vs Santra, Anita I (2019) CPJ 211 (NC), Eclectic Developers PVt Vs. Smita Datta Makhija II (2019) CPJ 545 (NC), Punjab State Power Corp. Ltd Vs. Lal Sarn Dass Sarve Hitkari School I (2019) CPJ 500 (NC) and Uttar Pradesh Madhyamik Shiksa Parishad Vs Gurmeet Kaur II (2019) CPJ 19 (NC). The Hon'ble National Commission in Sanjay Singh Vs Baby Chandna in RP no. 2208-2209/2015 decided on 08.09.2015 held that cause of action once accrued cannot be extended by a party by just writing demand letters/ legal notice. In Rishi Prabhat Vs. DDA AIR 1995 DEL 9, Hon'ble Delhi SCDRC held that after expiry of limitation period each day’s delay has to be explained.
6. In the present case, the complainant as per his own case acquired knowledge of gold auction in January 2013 but we find that he remained inactive for next two years till January 2015 which was the entire limitation period too for the present complaint. No proof of ailment / illness or treatment thereof has been placed on record by the complainant nor any medical certificate to the effect with respect to the health condition not even a doctor’s prescription has been filed. The Hon'ble Supreme Court in Sanjay Sidgonda Patel Vs National Insurance Co. Ltd. in SLP Civil no. 37183/2013 and Hon'ble National Commission in Kadam Brothers and Developers Vs Unmesh Ganpatrao Sathe IV (2015) CPJ 100 (NC) held that where there was no medical certificate filed with respect to health condition for seeking condonation of delay due to illness, the ground of illness was not a substantial reason for condoning the delay and dismissed the application.
7. After having exhaustively dealt with the legal discourse and the settled preposition of law in the catena of judgments passed by Hon'ble Supreme Court and Hon'ble National Commission on the aspect of limitation, we are of the considered opinion and unambiguously conclude that the present complaint is barred by limitation under Section 24 A since the period for filing the same expired in November 2014 (auction notice dated 04.11.2012) but the complaint was preferred in February 2015 after 3 months of expiry of limitation. The Hon'ble Supreme Court in N. Balakrishnan Vs M. Krishnamurthy VII (1998) SLT 334 laid down that law of limitation is enshrined in the maxim interest republic up sit finis Mum (it is for the general welfare that a period be put to litigation) and that it fixes a life span for such legal remedy for redressal of legal injury so that precious time which is wasted would never revisit. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time to see that party do not resort to dilatory tactics but seek their remedy promptly. It is settled preposition of law that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute prescribed which the court has no power to ignore. The legal maxim “dura lex sed lex” which means the law is hard but it is the law stands attracted in such a situation.
8. The grounds taken in the application are vague, unsubstantiated and unsupported and most unconvincing as far as illness (arthritis) of complainant is concerned in the absence of any medical document in support thereof. Rather it is a manifestation of laxity, negligence and inefficiency on the part of complainant despite having knowledge of auction of his gold in January 2013 and even complainant has willfully concealed the factum of receipt of balance amount of Rs. 50,000/- in December 2012 from OP. To accept such grounds as sufficient cause for condoning delay would tantamount to putting premium on the parties own acts of negligence and nonchalance. Therefore, the complaint is dismissed on grounds of being barred under limitation under Section 24 A as is the settled law exhaustively dealt with. No order as to cost.

It is made clear that we have not gone into the merits of the dispute between the parties and therefore this order will not come in the way of complainant to avail of legal remedy by approaching appropriate Court having jurisdiction to adjudicate such complaints which he is free to exercise as per law (but Consumer Protection Fora is not for him).

9.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
10.   File be consigned to record room.
11.   Announced on  17.09.2019

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member