Date of Filing – 20.01.2017

Date of Hearing – 15.03.2018

            The challenge in this appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is to the Order No.13 dated 09.12.2016 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-II (in short, Ld. District Forum) in Consumer Complaint No. 276/2016.  By the impugned order, the Ld. District Forum allowed the complaint lodged by the Respondent under Section 12 of the Act with the direction upon the Opposite Parties/Appellants to pay Rs.1,00,000/- as compensation and Rs.10,000/- as litigation cost etc.

          The Respondent herein being Complainant lodged the complaint before the Ld. District Forum asserting that the complainant is a small unaffiliated but Government registered autonomous school.  Sometime during the month of July/August, 2012, the OP No.2 visited the school and approached for installing ‘classedge’ to implement the interactive educational interface for their students.  On 31.08.2012 the representative of OP No.2 came to school and obtained the signature of the Principal of the complainant’s school in various pages of long agreement and the complainant handed over one cheque of Rs.18,500/- for installation of the same.  Accordingly, in the last week of January, 2013 the OP No.2 uploaded /downloaded the software and also provided Dungle instead of Broadband.  Later on OP No.2 agreed to provide necessary training to the selected teachers. Subsequent to implementation of the system, complainant faced several problems for which the representative of OP No.2 visited the school for obtaining feedback report.  However, being dissatisfied, the complainant/school decided to come out of the agreement as per provision of agreed terms and on 31.07.2013, the Principal of the school communicate of the same to the representative of OP No.2.  Thereafter, on 26.08,.2013 the OP No.1 issued a withdrawal notice with the assurance to issue un-installation certificate.  The complainant alleged that almost after 20 months later on 04.03.2015 and 14.03.2015 they received two letters from OP No.1 demanding Rs.92,500/-. Hence, the complainant approached the Ld. District Forum with prayer for several reliefs, viz. – (a) to install a defect free ‘Tata Classedge’ together with all accessories in terms of a contractual Agreement upon adjustment of Rs.1,85,000/- already paid by the complainant,; (b) Rs.3,00,000/- as compensation for harassment and mental agony; (c) litigation cost of Rs.25,000/- etc.

          The Appellants being Opposite Parties by filing a written version have stated that the complaint is liable to be dismissed for want of territorial jurisdiction, the transaction was meant for commercial purpose beyond the purview of the Act.  The OP has specifically stated that over the matter, they have already initiated a suit being No.1101/2016 against the complainant before the City Civil Court at Bombay for recovery of money etc. and as such the complaint should be dismissed.

          After assessing the materials on record, the Ld. District Forum by the impugned order allowed the complaint with certain directions upon the opposite parties.  To assail the said order, the OP Nos. 1 & 2have come up in this Commission with the present appeal.

          Mr. Ghanashyam Tripathi, Ld. Advocate being assisted by Mr. Vishak Bhattacharya, Ld. Advocate for the Appellants has submitted that the complaint was hopelessly barred by limitation.  He has drawn my attention to the relevant portion of the impugned Order and submitted that by exchange of letters or demand, the period of limitation cannot be extended.  To fortify his submission, Ld. Advocate for the appellants has referred one decision of Hon’ble Supreme Court reported in 2009 (4) CPR 17 [Kandimalla Raghavaiah & Co. – Vs. – National Insurance Co. & Anr.] and a decision of Hon’ble National Consumer Commission in RP No.2208/2209 of 2015 [Sanjay Singh – Vs. – Baby Chandna & 2 Ors.]. 

          On the other hand, Mr, Barun Prasad, Ld. Advocate for the Respondent has contended that withdrawal of TIS’s assets from the school at mutual termination of the agreement was concluded on 26.08.2013 but the appellants have received all the parts, machineries, computer sets etc. on 14.09.2013 by putting signature in the letter head of the school.  He has further submitted that subsequently, the appellants have made demand for payment after 20 months precisely on 04.03.2015 and 14.03.2015 and as such the cause of action is a continuous one.

For appreciation of the dispute, 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 Ld. District Forum has observed thus –

          “Ld. Lawyer for the OP has also argued that the case is hopelessly barred by limitation.  The complaint in the instant case was filed after lapse of two years and it is barred by as per Section 24A of C.P. Act.  We find that the case was filed on 10.06.2016.  The agreement in between the parties was cancelled on 26.08.2013 by the OP. But we find that even after that OP caused service of a legal notice dated 25.04.2015 upon the complainant continuing the cause of action of the case.  So, we find that the legal notice issued by OP can be taken as a base to bring the alleged complaint of the complainant within the limitation period.  We accordingly think that the case is not hit u/s 24A of C.P. Act, 1986.”

          The materials on record indicate that the commencement of the date of agreement was 01.01.2013 and expiry date being 31.12.2017.  On 31.07,.2013 the Principal of the school communicated some problems to the representatives of respondent no.2 and express an intention to cancell the agreement w.e.f. 01.08.2013.  However, based on mutual discussion between the parties, the agreement was terminated on 26.08.2013 where both the parties put their signatures.  In Paragraph-24 of the petition of complaint, the cause of action has stated to be initially arose on 31.08.2012 when appellants offered classedge system and subsequently on diverse date and lastly on 18.02.2015 when appellants sent letters claiming demand of Rs.92,500/-.

          It is well settled that by writing letters or by making representation the period of limitation cannot be extended.  When the agreement between the parties was terminated on 26.08.2013, that should have been taken into consideration as the actual date of accrual cause of action.  In the case of Sanjay Singh (supra) the Hon’ble National Commission has observed that once cause of action accrued, cannot be extended by a party by just writing demand letters/legal notice.

          Therefore, when the cause of action of this case accrued on 26.08.2013 and the complaint was lodged on 10.06.2016 and that too without any application for condonation of delay, the Ld. District Forum should not have admit the complaint, far less to speak of allowing the same.

          Over the present dispute, a suit being No.1101/2016 is pending before City Civil Court at Bombay.  Form the evidence of the complainant, it has come to surface that he has made an attempt to settle the dispute on 14.05.2015 by mailing to appellant no.1/OP No.1 offering a sum of Rs.37,000/- while the OP is sit tight over their claim of Rs.92,001/-.  In this regard, it would be pertinent to record that the respondent being complainant in the petition of complaint has averred that the complainant put the signature in the agreement in good faith without understanding the implication of the whole agreement.  In Bharati Knitting Co. – Vs. – DHL Worldwide Express Courier Division of Airfreight Ltd. reported in AIR 1996 SC 2508, the Hon’ble Apex Court has observed that when a person signs a document contains certain contractual terms is normally bound by them even though he is ignorant of their legal precise effect.  When a party to the contract disputes the binding nature of the signed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents needs to be established.

          The factual matrix clearly indicate that there is acute dispute of facts as to terms and conditions of the agreement between the parties and the payments and as such it cannot be decided by a Consumer Forum which is primarily meant for disposal of a complaint in a summary way for a limited purpose.

          Considering all the above and having heard the Ld. Advocates appearing for the parties, I am of the clear opinion that the Ld. District Forum has misdirected itself in considering the fact that the complaint is hopelessly barred by limitation and further when there are disputed questions of facts and law involved, it should be relegated to a competent Civil Court.

          For the reasons aforesaid, the appeal is allowed on contest.  However, there will be no order as to costs.

          The impugned order is hereby set aside.

          Consequently, the CC/276/2016 stands dismissed.

          The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II for information.