1.      The present First Appeal has been filed under Section 19 of the Consumer Protection Act, 1986 (hereinafter referred to as “the Act”) against the Order dated 02.07.2019 passed by the learned Punjab State Consumer Disputes Redressal Commission, Chandigarh (hereinafter referred as “the State Commission”), in Consumer Complaint No. 447 of 2019, wherein the Complaint filed by the Complainant (Appellant herein) was Dismissed.

2.      The Complainant Initially filed a Consumer Complaint No.178 of 2014 before the State Commission on 22.10.2014, which was dismissed as withdrawn vide order dated 01.12.2014, with liberty to file fresh complaint with elaborate facts. However, instead of filing fresh complaint before the State Commission, the Complainant filed Consumer Complaint No.18 of 2015 before the District Forum, S.A.S. Nagar (Mohali) on 08.01.2015. This complaint was deemed not maintainable as the Complainant has approached District Forum without remedying the issue raised before the State Commission vide order dated 24.07.2015. Against the District Forum order, the Complainant filed FA No.961/2015 before the State Commission on 25.08.2015. However, this Appeal was also dismissed, vide order dated 21.12.2016, upholding the order of the District Forum.

3.      Subsequently, the Complainant filed Revision Petition No.2934 of 2017 before this Commission, which was disposed of, vide order dated 10.08.2018, observing that the amount exceeds Rs.20 Lakhs, as such, the complaint was to be filed before the State Commission instead of District Forum and the Complainant was granted permission to withdraw the petition with liberty to file complaint afresh before the State Commission, in accordance with law. Eventually, the complaint was filed before State Commission. However, it was dismissed on the grounds of being hopelessly barred by limitation, with the Complainant's actions characterized as 'Forum-Shopping.'

4.      There was a delay of 3 days in filing the present Appeal. For the reasons stated in IA No. 15485/2019, the delay is condoned.

5.      For the sake of Convenience, the parties in the present matter being referred to as mentioned in the Complaint before the State Commission. “Dr. KS Behgal”, a qualified Radiation Oncologist, Proprietor of Behgal Institute of IT and Radiation Technology and self-employed and is earning his livelihood is referred to as the Complainant. While "Varian Medical Systems International India Pvt. Ltd.” through its Managing Director & Regional Head are referred to as the OPs (for short OPs) in this matter.

6.      Brief facts of the case pertain to the Complainant's need for a "Linear Accelerator Unique Performance Machine," used in cancer treatment through radiology from OPs, who are the machine manufacturers. A deposit of Rs.42,00,000 was made on 12.02.2012 and obtained a quotation from OPs. Assurances were given for the supply and installation of the machine as a single unit upon the issuance of a Letter of Credit (LoC). The booking receipt/ order No. 50620120213-00IC on 15.02.2012 confirmed the machine booking, contingent upon the LoC's issuance. Initially, the understanding was that the machine would be shipped within a month of LoC issuance. However, the OPs altered the agreement, stipulating 180-day duration for the machine's allocation for shipping after ARO.

7.      Thereafter, the machine was sent in segmented parts on 24.02.2012, 13.06.2012, and 07.08.2012, contrary to the initial unitary shipment terms, and without allowing the Complainant to reassess the order post-quotation receipt. Subsequently, the Complainant sought a full refund of the Rs.42,00,000 deposited, alongside the return of the supplied parts vide letter dated 19.12.2012. Despite this request, the OPs urged withdrawal of the cancellation and offered a 50% refund and rescheduling the order, which the Complainant accepted. A cheque of Rs.21,00,000 was issued in April 2013 by OPs, bearing No. 107534 dated 16.04.2013, drawn on Standard Chartered Bank, Andheri, Mumbai, indicating an excess amount refund. The OPs assured the remaining refund after collecting the unused base plate and deducting transportation charges. However, the base plate with a diameter of 52” 1108" kg remained in the Complainant's premises, leading to its sale for Rs.11,500 as scrap iron. The Complainant served a notice, upon the OPs, but neither it was responded, nor the balance amount was refunded to the Complainant.

8.      Being aggrieved, the Complainant filed Consumer Complaint (No. 447 of 2019) before State Commission, against the Opposite Parties, seeking following directions to them:

(a) to pay Rs.16,00,000/- plus interest till 10.10.2012 along with future interest at the rate of 18% per annum till the date of actual payment.

(b) to pay Rs. 10,00,000/- as compensation on account of the Harassment, inconvenience and anxiety suffered by the complainant; and

(c) to pay Rs.2,00,000/- towards litigation expenses.

9.  The learned State Commission vide order dated 02.07.2019 dismiss the complaint with the following Order: -

“14.    As discussed above, this is the third complaint filed by the complainant on the same cause of action. The complainant, after availing specific liberty to file fresh complaint with elaborate facts from this Commission, as per order dated 01.12.2014, Ex.C-12, did not file fresh complaint with this Commission. Rather, he approached District Forum, SAS Nagar (Mohali) by filing complaint, which was ordered to be returned to him being not maintainable being beyond its pecuniary jurisdiction, vide order dated 24.07.2015, Ex.C-13. Even then he did not straightway file complaint before this Commission. Rather, he filed appeal (F.A. No.961 of 2015) against the order of the District Forum, which was dismissed by this Commission, vide order dated 21.12.2016, Ex.C-14; affirming the order of the District Forum. Then, he approached the Hon'ble National Commission by way of filing above noted revision petition; which was disposed of, vide order dated 10.08.2018, Ex.C-15. Thereafter, he has come to this Commission by way of the present complaint. This act and conduct of the complainant certainly amounts to forum-shopping, as he continued to approach one Consumer For a after the other, ignoring the provisions of the Act and law, only with a view to get the relief one way of the other However, this attitude of the complainant is liable to be deprecated in view of the law laid down by the Hon’ble Supreme Court in case M/s Chetak Construction Ltd. v. Om Parkash & Ors. Civil Appeal No. 2140 of 1998 decided, vide order dated 20.04.1998, in which it was held as under:

'We certainly, cannot approve of any attempt on the part of any litigant to go "forum shopping". A litigant cannot be permitted choice' of the forum' and every attempt at "forum shopping" must be crushed with a heavy hand”.

15.      Since the present complaint is hopelessly barred by limitation and the acts of the complainant are in the nature of forum shopping, as discussed above, so I do not deem it appropriate to order for return of the complaint. Otherwise also, the complainant had not been approaching the Consumer Foras with clean hands, so he is not entitled to any relief. I intended to dismiss the complaint with exemplary costs, but in view of the peculiar circumstances of the case, I am refraining from imposing the cost.

16.      In view of my above discussion the complaint is dismissed in limine, being barred limitation.”

10.    Being aggrieved by the impugned order of the State Commission, the Complainant (Appellant herein) has filed this present Appeal no. 1906 of 2019 with the following prayer:

(a) Allow the present appeal and set aside the Impugned Judgment dated 02.07.2019 in Consumer Complaint No. 447 of 2019 passed by the Hon'ble State Commission;

(b) Pass any other such order as this Hon'ble Court may deem fit and proper in the premises of this case.

11.    The Appellant/Complainant mainly raised following issues:-

(a) The State Commission did not consider that the Impugned Judgment deserves to be set aside as it was dismissed in limine as not maintainable, without appreciating that this Commission had granted liberty to the Appellant to approach the State Commission by filing a Consumer Complaint.

(b) The State Commission failed to identify the actual dates of cause of action and subsequent events. It omitted the dates when the initial refund request was made and when a partial payment was tendered to the Appellant, which are mainstay in establishing the cause of action.

(c) The State Commission erroneously granted the benefit of Section 14 of the Limitation Act, 1963 to the Appellant and failed to recognize his diligent pursuit of his grievance in a court, albeit not one with competent jurisdiction.

(d) The 'State Commission failed to note that the Appellant paid total of Rs.42,00,000 and that is the amount that needs to be considered while deciding the pecuniary jurisdiction.

12.    On issue of notice on memo of Appeal, the Respondents, have not filed a reply but filed written submissions.   

13.    The Appellant's Counsel reiterated the grounds of Appeal, highlighting that the Complaint was within the pecuniary jurisdiction of the State Commission, seeking a refund of Rs.42,00,000 along with interest. Arguing on the interpretation of Section 17 of the Consumer Protection Act, he emphasized the error of the State Commission in deeming itself incompetent to address the dispute despite this Commission's direction to approach the State Commission. The learned Counsel contested the order of the State Commission regarding the complaint being time-barred, citing Section 14 of the Limitation Act, 1963, which protects litigants pursuing remedies in the wrong forum. The Counsel emphasized that the cause of action arose on 19.12.2012 upon the Appellant's refund request and on 16.04.2013 upon receiving partial payment, both events being within the limitation period. He underscored the Appellant's adherence to legal advice and diligently pursuing remedies advised, rebutting the notion of forum shopping as no forum has refuted the Appellant's entitlement to relief on merits, maintaining that such conduct cannot be labeled as forum shopping. The learned Counsel for the Appellant/Complainant placed reliance upon the following judgements to support his arguments: -

(a)  Sandeep Ray v. Earth Builprop Pvt. Ltd. 2018 SCC Online NCDRC 1389.

(b)  Security Hi Tech Graphics Pvt. Ltd. v. SOTC Holiday India Pvt. Ltd., 2018 SCC online NCDRC 899.

(c) Aneja Construction (I) Ltd. v. National Insurance Co. Ltd. 2018 SCC Online NCDRC 504.

(d) Tainwala Personal Care Product Pvt. Ltd. v. Royal Sundaram Alliance Insurance Co. Ltd, 2013 SCC Online NCDRC 1080

14.     The learned Counsel for the Respondent reiterated the facts of the case and evidence filed before the learned State Commission. She asserted that the State Commission underscored the grounds for dismissal, highlighting the alleged bar by limitation and the nature of the Complainant's actions as ‘forum shopping’. Citing the Hon’ble Supreme Court's view in M/s Chetak Construction Limited v. Om Prakash & Ors.,(1998) 4 SCC, she stressed the disapproval of forum shopping and the need to curtail such practices firmly. Further, the learned Counsel forcefully argued that the cause of action emerged on 15.02.2012 with issue of the Purchase Order, and the complaint was filed almost five years later, on 29 May 2019, significantly beyond the prescribed two-year limitation period. Consequently, she argued that the complaint, being substantially time-barred and devoid of any application for condonation of delay before the State Commission, was rightfully dismissed. She placed reliance upon the following judgements to support her Arguments: -

(a)  M/s Chetak Construction Limited (Supra)

(b) UOI & Ors. v. Cipla Limited & Ors., (2017) 5 SCC 262.

(c) SBI v. B.S. Agricultural Industries (I), (2009) 5 SCC 121

(d) VN Shrikhande (Dr) v. Anita Dena Fernandes, (2011)1 (SCC).

(e) Uddalak v The Electricity Supply Co. Ltd.;, 2012 SCC OnLine NCDRC 254.

15.    I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by the learned Counsel for both the Parties.

16.    The primary issue in the present Appeal is whether the State Commission was justified in dismissing the complaint based on period of limitation, and the alleged conduct of 'forum shopping' by the Complainant. As regards limitation period, the learned State Commission in its order observed that the present complaint is significantly time-barred, asserting that the cause of action emerged when the machine in question was booked with the OPs, specifically in February 2012, or at the latest, when the initial complaint was filed before this Commission on 22.10.2014. However, it is evident that the Complainant persisted to seek redressal within the scope of Consumer protection law. Apparently, there is misunderstanding or failure to seek guidance to appreciate the jurisdictional limits. This has resulted in the blindly rushing from to fora under the Act, without the case being heard on merits. The duration in which the Complainant's case had remained unheard in the fora under the Act may deserve consideration. In this regard, Hon’ble Supreme Court in Laxmi Engineering Works v. PSG Industrial Institute, (1995) 3 SCC 583 at page 599 has held that:-

“23. The appeal accordingly fails and is dismissed but without costs. If the appellant chooses to file a suit for the relief claimed in these proceedings, he can do so according to law and in such a case he can claim the benefit of Section 14 of the Limitation Act to exclude the period spent in prosecuting the proceedings under the Consumer Protection Act, while computing the period of limitation prescribed for such a suit.”

17.    As regards the issue of whether the Complainant engaged in forum shopping, the term ‘forum shopping’ mainly denotes pursuit of different options of courts by a person seeking to choose one with hope to obtain favorable outcome. However, in the present case, the Complainant's recourse to different forums stemmed from a lack of clarity and understanding regarding pecuniary jurisdiction and absence of any mal-intent in this regards is conspicuous.

18.    Based on the above discussion and deliberations, the First Appeal No.1906 of 2019 is allowed. Thus, the impugned order dated 02.07.2019 in C.C. No.447 of 2019 passed by the learned State Commission is set aside and the matter is remanded back to the learned State Commission to decide the Complaint on merits.

19.    Both the parties are directed to appear before the State Commission on 28.02.2024.

20.    The Registry is directed to release the Statutory deposit amount, if any due, as per law.

21.    All pending Applications, if any, disposed of accordingly.