The case of the complainant in brief is that the proposal for execution of Kapahua DMTW Irrigation Scheme under Tengakhat Development Block during the 1981-82 was taken up to irrigate an area of 105 hac from 3 nos. of deep tubewell at an estimated cost of Rs.10,00,000/- out of which an amount of Rs.1,61,650/- was paid to AEE, Bordubi Electrical Sub-Division, ASEB, Bordubi under Tinsukia Electrical Division, ASEB vide Cheque No.78746/15760 dated 29.01.91 for drawal of HT line and installation of sub-station for  energisation. The ASEB has executed a portion of work and left incomplete as  some miscreants had damaged the already executed works. Later on, when the ASEB was reorganised, the scheme for irrigation came under the jurisdiction of Duliajan Electrical Division, UAEDCL, Duliajan and AEE Bordubi Electrical Sub-Division, ASEB office is renamed as Sub-Divisional Engineer, Bordubi Electrical Sub-Division, UAEDCL, ASEB Bordubi. However, due to non-drawal of HT line the scheme could not be commissioned during 1991-92. The aforesaid scheme was again taken up under NLCP-I during 1999-2000 with another additional cost of Rs.2.98 Lacs and the civil works was executed in full swing to complete the work within the targeted dated of 30-09-1999. Accordingly, ASEB was communicated for completion of electrical portion of work. Meanwhile, several correspondences were made with ASEB and the matter was also discussed with different Forum including DDC meeting under the Chairmanship of DC, Dibrugarh. Meanwhile, Secretary to the Government of Assam, Irrigation Department took up the matter and requested the Chairman, ASEB to complete the work vide his D.O. Letter No.IGN(W) 104/99/210 dated 07-03-2001. Deputy Commissioner, Dibrugarh also made correspondence with the Chairman, ASEB vide letter No.D.Com 9/2002/529 dated 5-12-2002 and DDO 12/97/58/353 dated 04-06-2003.  He also took up the matter with Chief Engineer, Distribution, ASEB vide letter No.DDO 2/97-98/370 dated 02-08-2003. In spite of that ASEB failed to complete the work for which payment was made during 1991. After several correspondences, persuasion AEE, Bordubi Electrical Sub- Division submitted a bill of Rs.4,57,384/- to the complainant for the said work vide his letter No.528 dated 23-12-2000, but as there was no provision for enhance amount of Rs.4,57,384/- under NLCP-I the  matter was informed to AEE, Bordubi Electrical Sub-Division ASEB vide this Office letter No.DD (I) Tech/4/85/Pt-I/1458 dated 22-05-01. Later on, being urgency of the completion of the scheme under NLCP-I the Irrigation Department has agreed to make payment of Rs.4,58,384/- from the unadjusted centrally paid amount lying with ASEB and the matter was informed to the Chief Engineer (Distribution) ASEB by Chief Engineer, Irrigation Department, Assam vide No. CEI(DDE) 13/96/99 dated 26-05-05 and No. CEI (DDE) 13/96/103 dated 04-12-05. During this long period the civil work were completely damaged due to non-operation of the scheme for non-energisation of the scheme by the OP. As a result, the complainant had to face public criticism and the farmers were deprived from the irrigation facilities causing huge loss in agricultural production for deficiency of  service on the part of OP. Hence, the complainant  prayed to direct the ASEB to refund the deposited amount of Rs.1,61,650/- with interest @ 10% per annum with effect from 29.01.91, to pay a sum of Rs.12.73 Lacs being expenditure incurred by the Irrigation Department for execution of the scheme and pay Rs.5,00,000/- as compensation for depriving the farmers from getting irrigation facilities and to pay a cost of Rs.20,000/- for litigation.

      After registering the case notices were issued to  all the OPs who contested the case by filing written statement stating inter-alia that the case is not maintainable in law as well as in fact.  The petition is time barred U/s 24(A) of the C.P. Act as because case was not filed within the period of two years as provided under the limitation. The case was filed after lapse of seventeen years from the date of 29-01-91 i.e. the alleged date of issuing a cheque in favour of the OP for execution of work. The complainant suddenly jumping up filed the complaint petition of 27-11-08 after seventeen years for which the claim of any dues thereof by the petitioner from the OP under an alleged agreement is manifestly time barred and as such, all the allegation and the insinuation made against the OP being untrue are denied and filed this case with a malafide motive for wrongful and illegal gain. Further, it is stated that the case has ipso facto arising out of contractual agreement between the complainant and OP and for failure to perform the part of agreement would be a breach of contract for which the relief should have been sought in the court of competent civil jurisdiction and not in Consumer Forum. As such, the case filed by the complainant before this Forum is absolutely uncalled for, unwarranted and repugnant to the provision of the Consumer Protection Act, 1986 and prayed therefore to dismiss the case.

In this case complainant failed to give any evidence and also failed to exhibit any of the documents in support of his case. from perusal of the order sheet it reveals that complainant was given last chance to file evidence vide order dated 29.04.09 fixing 03.06.09 whereas, on 03.06.09 complainant filed another petition No.9/08 praying for time for filing evidence which was rejected and fixed for evidence of OP. On 03.07.09 complainant filed a petition No.946 praying for giving chance to led evidence but this petition was rejected vide order dated 07.10.10. Even then complainant filed evidence swearing an affidavit on 14.10.09 without any documents which is available in the record.

On the other hand, OP gave evidence by swearing an affidavit by Putul Saikia and exhibited no documents.

DISCUSSION, DECISION AND REASONS THEREOF:

Upon going through the evidence, documents and arguments advanced by the parties it is found that the complaiant paid a sum of Rs.1,61,650/- to the AEE Bordubi Electrical Sub-Division under Tinsukia Electrical Division vide cheque No.78746/15760 dated 29.01.91 for drawal of HT line and installation of sub-station for energisation of three deep tubewell points under Kapahua MDTW Irrigation Scheme under Tenghakhat Development Block in Dibrugarh The OPs executed only a portion of work but left incomplete a major portion under the pretext that some miscreant had damaged the already executed work. However, they assured to complete the work vide letter No.SE/DEC/T-109/2000/1712 dated 04.07.2000. Since the non-drawal of HT line by the OP the Irrigation Scheme could not be commissioned even after completion of civil work. As a result, the scheme could not be completed during 1991-92. But the said scheme was again taken up under NLCP-I during 1999-2000 with additional cost of Rs.2.98 Lacs and the civil works was completed. As such, OP was communicated for electrical works. The OP submitted a bill of Rs.4,57,384/- for execution of said work vide letter No.528 dated 23.12.2000. But as there was no provision for enhancement amount of Rs.4,57,384/- under NLCP-I the matter remain as it is. Subsequently, after four and half years the complainant agreed to make a payment of Rs.4,58,384/- vide letter CEI(DDE) 13/96/99 dated 26.05.05. However, the scheme was not completed for non-drawal of HT line by the OP.

Before going into the merit of this case it would be convenient to decide the preliminary issue on the point of limitation as raised by the OPs. While submitting the written statement and the evidence, OP stated that the complaint petition filed by the complainant was barred u/s. 24(A)  of the Law of Limitation of the C.P. Act,1986 as because the case was not filed within a span of two years as provided under the provision of limitation and filed after a lapse of seventeen years from the date of 29-01-91, the alleged date of issuing the cheque in favour of the OP for execution of work. The complainant issued the cheque on 29-01-91 whereas, the complaint petition was filed on 27-11-08 for which the claim on any dues thereof by the complainant from the OP under the alleged agreement is manifestly time barred.

The limitation for filing the complaint before this Forum is the date on which the cause of action has arisen. In considering the question of limitation this Forum has to deal with - (a) the question as to what are the fact which constitute the cause of action for the complainant to file the complaint , (b) the question as to on which date the cause of action to file the complaint has arisen, (c) whether the complaint has been filed within the period of limitation of two years from the date of cause of action has arisen to the complainant and (d) if there is delay in filing the complaint whether application for condonation of delay  has been filed and whether sufficient cause for not filing the complaint within the period of limitation is made out.

In the present case in hand the complainant is a Government Department has taken up a scheme for irrigating about 105 hac from 3 nos. of deep tubewells, and for energisation an amount of Rs.1,61,650/- was paid on 29.01.91 to the OPs for drawal of HT line. The scheme was to be completed during 1991-92. The civil work of the complainant was completed during the scheme period. The OP also had executed a portion of work and left incomplete as because some miscreants had damaged the already executed works. However, the OP assured to complete the work vide their letter No.SE/DEC/T-104-2000-1712 dated 04-07-2000. But, either this or that reason the matter could not be completed by the OP. The complainant also remain silent for about 6-7 years without completing the scheme and suddenly, taken the same scheme again under the NLCP-I during 1999-2000 with another additional cost of Rs.2.98 Lacs. Civil work was completed and made several correspondence with the OPs to complete their energisation by drawing HT line. But the OP refused to work at the earlier amount and raised the bill of Rs.457384/- for the said work vide letter No.528 dated 23.12.2000. The complainant left the matter there as there was no provision for enhance amount of Rs.4,57,384/- under NLCP-I and the matter was  informed to OPs vide letter No.DD(I) Tech/4/85/Pt-I/1458 dated 22.05.01. Surprisingly, after four and half years the complainant vide letter No.CEI(DDE) 13/96/99 dated 26.05.05 informed to the OPs that he agreed to pay  Rs.4,58,384/-. The OP made no response of the above letter and the work could not be completed.

Under the circumstances stated above the cause of action cannot be assumed to be continued. The cause of action arose in the year 1991 on the date on which the cheque was issued and thereafter no fresh agreement taken place in between the complainant and the OP. The work had to be completed during the year 1991-92 but same was not completed. The complainant remained silent for more than seven years and when a new scheme under the NLCP-I during 1999-2000 was taken up the matter was raised. As such, later on the complainant though taken up the scheme under NLCP-I the agreement did not automatically survive. The OPs are not bound to execute at their earlier agreement and as such, the OP enhanced bill of Rs.4,57,384/- to the complainant for the said work vide letter No.528 dated 23.12.2000 but since there was no provision of enhancing the above amount by the complainant there was no any fresh agreement which can be treated as continuous cause of action from 1991. As the OP No.1 did not agree to execute the work at the earlier rate and as such, enhanced the earlier rate which was not honoured by the complainant for which the complaint filed by the complainant is barred by limitation.

In Mahendra Sarma v. Unit Trust of India and other decided on 02.02.10 by Hon’ble National Commission Circuit Bench at Kolkata, West Bengal in Revision No.2370/07, whether it has been held that -

“ In this case admittedly cause of action had arisen to the petitioner on 29-04-1994 whereas the complaint was filed in 2004 after delay of ten years. U/s 24(a) of the Consumer Protection Act the complaint can be filed within a period of two years of arising cause of action. Delay in filing the complaint case can be condoned on showing sufficient cause. No such application was filed. Respondent in its written statement had taken specific objection that the complaint was barred by limitation....... According to us the complaint is liable to be dismissed as being barred by limitation.”

In view of the above noted case in the present case the cause of action arose in 1991, the date on which the cheque was issued to the OP therefore the cause of action commenced since 1991 whereas, the present case was filed on 27.11.08 after lapse of seventeen years whereas, time limit for filing complaint is no doubt two years from the cause of action U/s.24 (A) of the Consumer Protection Act, 1986. The complainant has also not filed any application to condone the delay. Mere making long correspondence with the OPs could not be said that the cause of action was a continuous cause of action since the OPs have not accepted their claim and the claim was ended by 1991-92 period. The Consumer Forum constituted under the act will entertain and adjudicate upon only  such scheme in respect of which the cause of action is alive on the  date of institution of the complaint. The reason explained by the complainant that they made long correspondence with the OPs took time in deciding the matter. The OPs have submitted a bill of Rs.4,57,384/- on 23.12.2000 which was not accepted by the complainant and thereby no agreement took place  to continue the cause of action. After four and half years though complainant accepted the bills submitted by the OP is not an agreement at all which cannot be a ground of sufficient cause to condone the delay.

Lastly, though not list the complainant did not pray or file any application for condonation of delay in the Forum and the OPs in their written statement had taken a specific objection that the complaint was barred by limitation.

In our view the complaint petition is barred by limitation. Hence cannot be entertained and the merit of the case was not discussed. The complaint petition is dismissed without cost.