Shri B. Mukhopadhyay, President.   

This is an application u/s.24AA91) of the C.P. Act, 1986 filed by O.P> on 22/10/2013 challenging the maintainability of the complaint on the ground that the present complaint is barred by limitation when cause of action arose actually on 21/03/2009, when complainant sent legal notice to the O.P. through his Ld. Lawyer, Subodh Ranjan Dutta. But the present complaint was filed on 19/07/2013.

But against that, complainant has filed a written objection stating that O.P. filed pre-litigation matter no.-10199/2012 before the Dist. Legal Service Authority, Kolkata, City Court Building claiming the amount against the complainant and complainant received that notice issued by Dist. Legal Service Authority, Kolkata on 21/07/2012 wherefrom complainant came to learn that O.P. filed a case for realization of arrear dues and thereafter the cause of action arose and after complainant filed this complaint within time. So, the application of the O.P. should be rejected.

This matter was heard lastly on 21/08/2013 and it was fixed for order on 12/11/2013 but on that date it was not prepared so we are finally disposing of the matter today.

Considering the entire complaint particularly the assertion of the complainant in the complaint that O.P. demanded certain amt. against the credit card of the complainant bearing card no.-4129047380557917 of the year 2000 and expiry of the said credit card is 30/06/2008 and after receipt of that claim in respect of Rs.25,315/- made by the O.P. to the complainant, complainant was dissatisfied and sent letter to the O.P. on 21/03/2009. So, apparently complainant cause of action arose on and from 21/03/2009 no doubt.

Whereas complainant has tried to convinced this Forum that he received a notice from Dist. Legal Service Authority, Kolkata, City Civil Court Building on 12/07/2012 wherefrom he came to learn that O.P. filed a P.L. Matter No.-10199/2012 for claiming the amt. due against credit card and so complainant cause of action arose on 12/07/2012.

Consider the submission of the lawyer for the O.P. who submitted that it is established law that once a period of limitation starts it cannot be enlarged or extended by prolonged correspondence between the parties. and further he submitted that a complaint must be filed within two years from the date of accrual of cause of action and if it is beyond the said period the sufficient cause must be shown and delay may condone for the reason recorded in writing and it is duty of the Forum to take notice of the Sec.-24A at the time of admitting the complaint and if overlooking that legal aspect the consumer forum enters into further proceeding admitting the complant on merit. It is an illegality and the O.P. pray for such relief for dismissing the com.

On overall evaluation of the argument of the lawyers for the parties as per their pleadings and particularly the fact was disclosed by the complainant, it is clear that complainant cause of action actually arose on 21/03/2009 when he challenged demand of the O.P. in respect of Rs.28,177.71/- against   from the complainant on the basis of statement of account on 31/08/2008 and fact remains, the said date 21/03/2009 was served upon the O.P. but complainant did not receive any reply. Then invariably complainant had no other alternative but to file the present complaint positively within two years from the date of receipt of the 2^nd statement of account dated 31/08/2008 or at best the complaint ought to have been field by 21/03/2011 when starting point of cause of action was 21/03/2009 on which date complainant challenged the claim of the O.P. and sent such notice.

But the complainant’s further claim that his cause of action arose after receipt of notice from Dist. Legal Authority, Kolkata on 12/07/2012 cannot anyway save the complainant to treat it as a 2^nd cause of action.

Because cause of action must be one and it must be continuous till expiry of period of limitation and once a period of limitation was starts it cannot be enlarged or extended by correspondence between th4e parties on the ground limitation is mandatory n nature and cause of action cannot be diverted to different dates.

In view of the above fact and circumstances and materials and also the present actual date of cause of action on and from 21/03/2009 and further considering the mandatory provision of Sec.-24A of the C. P. Act we find that complaint ought to have been filed within two years and positively by 21/03/2011. But complainant did not filed any complaint for such relief and so the present com is barred by limitation and another factor is that complainant on the date of filing this complaint on 19/07/2013 did not filed any appl. u/s-24A of the C. P. Act, 1986 for condonation of delay but the case was admitted by the Forum for further proceeding and in the above situation, at this stage, the is no scope to condone such delay of the complainant in filing this case after lapse of four years from the date of cause of action (21/03/2009).

Anyhow, we have also considered the complainant’s assertion that his cause of action arose on and from the date of receipt of notice on 12/07/2012 from Dist. Legal Service Authority, Kolkata, City Civil Court. But such a plea cannot be considered as legal in view of the fact on that date also limitation already started w.e.f. 21/03/2011 and fact remains, O.P. appeared before a civil forum after complainant’s period of limitation already starts and so complainant’s plea for saving the limitation period with the help of that notice cannot be entertained as a legal plea. Practically we are not impressed by the argument of the lawyer of the complainant. But considering the entire materials we are convinced to hold that the present com. Is hopelessly barred by limitation and as because at the time of filing of complaint on 19/07/2013 no application u/s-24A of the C. P. Act was filed along with this complaint praying for condonation of delay and when no order was also passed by the Forum at the time of taking admission that delay has been condoned and so there is no other scope but to hold that the present com is hopelessly barred by limitation as per provision of Sec.-24A of the C. P. Act and this regard we have relied upon the verdict of the Hon’ble N.C.D.R.C. reported in IV (2001) CPJ 114 (NC) and particularly the para-3 of that Judgement.

In the result, the petition filed by O.P. U/s-24A(1) of C. P. Act dated 22/10/2013 bears merit in the eye of law and same is allowed on contest.

Hence,

Ordered

That the com. Be and the same is dismissed in view of the fact that the present com is barred by limitation u/s-24A of the C. P. Act.