Order No. 06    / 12.03.2019

            The instant order arises out of an application dated 07.01.2019 filed by the complainant praying for condonation of delay in filing the complaint petition.

Heard the complainant No.  2 in person as well as the Learned Advocate for the OPs.

It is admitted fact that the complainants purchased Membership of Country Vacations International Holiday Club on 21.09.2014 and Club Membership Purchase Agreement and Vacations Agreement were executed between the parties. In terms of the agreement dated 21.09.2014 Complainants paid Rs.1,00,000/- and also paid Rs.9,550/- towards  annual maintenance charge to the OPs. OPs failed to fulfill the obligations of the agreement and ultimately the complainants vide letter dated 21.01.2016 requested the OPs to refund the entire amount. The OPs vide letter dated 28.01.2016 turned down the request of the complainant.

The OPs have also taken a plea that the complaint is barred by limitation. Their case is that the Club Membership Purchase Agreement and Vacations Agreement were executed on 21.09.2014 and the complaint having been filed on 07.01.2019 was filed more than two years after accrual of the cause of action and, therefore, is liable to be dismissed on this ground alone. Section 24A of the Consumer Protection Act, 1986 which prescribes the period of limitation for admitting a complaint, reads as under:

“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 contained in sub-section (1), a complaint may be entertained after the period specified in subsection (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 ”

Para – 18 of the complaint petition which deals with the cause of action to file the present complaint  reads as under :

“18. That cause of action of this case arose on 28.01.2016 and 16.07.2018”. In course of hearing the complainant No.2 has submitted that on 28.01.2016 the OPs turned down the request of the complainants to refund Rs.1,09,550/- and on 16.07.2018 this Forum permitted  the complainants to withdraw the CC No. 113 of 2018 with a liberty to file a fresh complaint on the same cause of action.

It would, thus, be seen that according to the complainants the cause of action arose (1) when the OPs turned down to refund Rs.1,09,550/- and (ii) when liberty was given to them to file a fresh complaint on the same cause of action. Complainant No. 2 also claim that the aforesaid cause of action is a continuing cause of action since the complainants continue to suffer mental agony at the loss of their family. In our view, the cause of action for filing this complaint arose on 28.01.2016 when the OPs turned down the request to refund Rs.1,09,550/-.On perusal of the order passed in CC No. 113 of 2018 we find that this Forum permitted the complainants to withdraw the complaint case with a liberty to file a fresh complaint on the same cause of action, if so advised, and if not, otherwise, barred by law. The cause of action dated 16.07.018 which accrued to the complainants before the Forum cannot be a continuing cause of action and once they had come to know that the OPs vide their letter dated 28.01.2016 turned down  the  request to  refund the amount, they are required to approach this Forum within  two years of acquiring said knowledge.

“In Haryana Urban Development Authority Vs. B.K. Sood  MANU/SC/1683/2005 IV (2005) CPJ 1(SC), the Hon’ble Supreme Court, referring to the provisions of Section 24A of the Consumer Protection Act, 1986, inter – alia observed as under :

“11. The Section debars any Fora set up under the Act, admitting a complaint  unless the complaint is filed within two years from the date of which the cause of action has arisen “.

In State Bank of India Vs. B. S. Agricultural Industries MANU / SC/0420 / 2009 : I (2009) CPJ 29 (SC), the Hon’ble Supreme Court, considering the provisions of Section 24A of the Consumer Protection Act, 1986, inter – alia observed and held as under :

            “8. It would be seen from the aforesaid provision that it 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. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a compliant’ occurring in Section 24A is sort of a legislative command to be Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. 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 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 provisions of Section 24A of the Act being mandatory and rather peremptory in nature, this Forum has no jurisdiction to entertain a complaint after expiry of the prescribed period of limitation. Admittedly, the complainants have filed an appropriate application under Sub-section (2) of the said  Section and  failed to satisfies it  that  they have sufficient cause for not filing the complaint  within the prescribed period of  two years from the date on which cause of action had arisen. On the contrary, the blamed upon the Forum that they were permitted to withdraw the CC No. 113 of 2018 with a liberty to file a fresh complaint on the same course of action suppressing the last part of order dated 16.07.2018  “ If not, otherwise barred by law. ”

For the reasons stated hereinabove, the Misc. Application is dismissed on contest  but without  any cost.

Resultantly, the complaint case is not admitted and dismissed in limine.

It is, however, made clear that the dismissal of the compliant shall not come in the way of the complainants availing such other remedy as may be available to them in law.