State Consumer Disputes Redressal Commission
Joseph Mascarenhas vs M/S Subrai Motors Pvt. Ltd. on 21 July, 2016
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
FA No. 13/2016
Mr. Joseph Mascarenhas,
Aged 52 years, son of Joao
Mascarenhas, Indian National,
Resident of House no. 264/72,
17, Claming Estate,
Kamat Green Valley,
Porvorim, Bardez, Goa. .....Appellant
v/s
M/s. Subrai Motors Pvt. Ltd.,
Joshi Building, F. L. Gomes road,
Vasco da Gama, Goa 403802. ...... Respondents
Mr. Suneet D'Mello, Lr. Counsel for the Appellant.
Mr. J. Dias, Lr. Counsel for the Respondent.
Coram: Shri. Justice U. V. Bakre, President
Smt. Vidhya R. Gurav, Member
Dated: 21/07/2016
ORDER
[Per Justice Shri. U. V. Bakre, President] This Appeal is directed against the order dated 18/01/2016 passed by the Lr. Consumer Disputes Redressal Forum, North Goa (the "Forum", for short) in Consumer Complaint No. 82/2015. The Appellant was the Complainant whereas Respondent was the Opposite Party (OP) before the Forum and they shall hereinafter be referred to as per their status in the said Complaint.
2. The Complainant had approached the OP on 26/02/2010 for purchasing a white colour Chevrolet Spark, PS car, which he wanted to be delivered to him on or before 11/03/2010 since 12th March was 2 his birthdate. The supervisor of the OP assured the Complainant that they will arrange the said vehicle for him as required and if he was unable to do so he would definitely arrange a Beige colour car. The Complainant therefore issued a cheque for Rs. 30,000/- to the OP towards booking amount. On 10/03/2010, when the Complainant visited the showroom of the OP, the supervisor handed over to him a Form stating that the vehicle booked by him in red colour had arrived and balance payment be made. The Complainant was surprised as he had agreed for white or Beige colour car. The OP was unable to provide him the same and therefore he sought to cancel the order. On 20/03/2010 the Complainant delivered a letter to the OP thereby demanding refund of the booking amount of Rs. 30,000/-. In response, the OP issued a cheque for Rs. 20,000/- which the Complainant refused to accept since the reason for cancellation of the booking was the fault of the OP. The OP then issued a letter to the Complainant on 7/05/2010 urging that the Complainant should accept the amount of Rs. 20,000/- since the deduction of Rs. 10,000/- was as per their cancellation policy. The Complainant by letter dated 18/06/2010 refused to accept the same saying that he was never informed about any cancellation policy of the OP. By letter dated 25/06/2010 which letter was accepted by one of the family members of the Complainant but was shown to him sometime in November 2011, the OP attached a copy of the letter dated 2/03/2010 wherein it was stated that Beige colour car had arrived at the showroom and is ready for delivery. The Complainant never received any letter dated 2/03/2010 and therefore he addressed a letter dated 27/11/2011 informing the OP that the said annexure was not received by him and had not been signed by him. The OP sent another letter dated 13/12/2011 reiterating their claim. On the above facts, as stated by the Complainant, he approached Consumer Conciliation Committee on 6/02/2012, but no settlement was possible there and a failure report was drawn up on 17/12/2014, a copy of which was received by the Complainant in January 2015. The Complainant filed the 3 Complaint on the same facts before the Forum on 14/09/2015. The Complainant alleged that the cause of action first arose on 12/04/2010 when the OP sought to hand over to the Complainant a cheque for Rs. 20,000/- only and refused to refund the entire amount of Rs. 30,000/-. He stated that thereafter the cause of action arose time and again till the last letter dated 13/12/2011. It was further averred by the Complainant in paragraph 28 of the Complaint that since he was pursuing the matter before the Consumer Conciliation Committee, Department of Civil Supplies and Consumer Affairs, the cause of action arose when the said Committee drew up a failure report on 17/12/2014 which was delivered to the Complainant in January 2015.
3. The Lr. Forum heard the Lr. Counsel for the Complainant on the point of admission of the Complaint. The Forum was of the view that as per a paragraph 28 of the Complaint, the cause of action first arose on 12/04/2010 and as per Section 24A of the Consumer Protection Act, 1986 (C. P. Act, for short), the Complaint ought to have been filed within two years from that day and since the Complaint was filed on 01/09/2015 the same was beyond the limitation period provided under the Act. The Forum held that the cause of action was not recurring. The Complaint therefore came to be dismissed.
4. In the present Appeal both the parties have filed written arguments and Lr. Counsel for the parties did not wish to submit orally. Records and proceedings of C.C. No. 82/2015 were called for. We have gone through the entire material on record.
5. The short point to be determined in the present appeal is whether the Complaint was barred by the limitation as provided under the Act.
6. The Complaint was initially presented along with an application for condonation of delay before the Forum on 04/05/2015. However, the Complainant on 24/08/2015 sought leave of the Forum to 4 withdraw the application for condonation of delay alleging that there was no delay. Hence, by order dated 24/08/2015, the Lr. Forum dismissed the application as withdrawn. Thus, the Complaint came to be registered on 01/09/2015. Section 24A of the Act prescribes the time limit of two years from the date of accrual of cause of action to file Complaint before the Forum. In the present case the cause of action cannot be said to be of recurring nature, after 13/12/2011. According to the Complainant, the cause of action for the first time arose to the Complainant when the OP sought to hand over to him the cheque for Rs. 20,000/- and refused to refund the entire amount of Rs. 30,000/-. According to the Complainant, the cause of action arose again when the OP, by letter dated 07/05/2010, explained that the deduction of Rs. 10,000/- was as per their cancellation policy and demanded Rs. 20,000/-. Again, by letter dated 25//06/2010, the OP enclosed the copies of order form, terms and conditions and a letter purportedly sent to the Complainant on availability of the required vehicle. However, by final letter dated 13/12/2011, the OP had informed the Complainant that refund due to him would be only Rs. 20,000/- and that Rs. 10,000/- was deductible from the booking advance as per the terms and conditions of the order. Therefore, at the most the cause of action can be said to have lastly occurred on 13/12/2011 and not beyond that. However, it is the case of the Complainant that he was diligently prosecuting the same matter before the Consumer Conciliation Committee and the failure report was drawn up by this Committee on 17/12/2014 which report was delivered to him in January 2015 and therefore the time during which the matter was pending before the said Conciliation Committee should be excluded, in terms of Section 14 of the Limitation Act, 1963. Section 14 (1) and (2) of the Limitation Act states as under;
" 1) In computing the period of limitation prescribed for any suit, the time during which the Plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first 5 instance or in a Court of appeal or revision, against the Defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which from defect of jurisdiction or other cause of like nature is unable to entertain it.
(2) In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which from defect of jurisdiction or other cause of like nature is unable to entertain it."
7. Thus what needs to be seen is whether the time spent by the Complainant before the Conciliation Committee can be excluded. The Complainant has relied upon the judgment of the Supreme Court in the case of "India Electric Works Ltd., vs. James Mantosh and another" 1971 AIR (SC) 2313. In the case, supra, the Hon'ble Supreme Court has explained the concept of the expression "or other cause of like nature". The Apex Court has observed thus:
"The High Court having found that the present claim of the plaintiffs was also included in the previous suit, the condition that the previous proceeding should be founded upon the same cause of action must be held to have been satisfied. The High Court has further held that the previous suit had been prosecuted in good faith and with due diligence. In order to attract the applicability of Section 14(1), therefore, all that has to be determined is whether the court in which the previous suit was filed was unable to entertain the claim relating to future mesne profits "from defect of jurisdiction" or "other cause of a like nature". It is common ground and indeed cannot be argued nor has any attempt been made to urge such a contention before us that the court trying the previous 6 suit was unable to entertain it from defect of jurisdiction. The only question for determination is whether the court was unable to entertain the previous suit from "other cause of a like nature".
In Jai Kishan Singh v. The Peoples Bank of Northern India, ILR 1944 Lah 451, it was pointed out that Section 14 of the Act will have no application where failure on the part of the petitioner or the plaintiff to get the reliefs which he asked for was not attributable to anything connected either with the jurisdiction of the court or with some other defect which was like that of jurisdiction. It was observed that the words "or other cause of a like nature", however, liberally construed must be read so as to convey something ejusdem generis or analogous to the preceding words relating to the defect of jurisdiction. If these words were read along with the expression "is unable to entertain", they would denote that the defect must be of such a character as to make it impossible for the court to entertain the suit or application in its inception or at all events as to prevent it from deciding it on the merits. In other words, if the defects were of such a nature that they had to be decided before the case could be disposed of on merits or if they did not necessitate an examination of the merits of the case they would be defects of a "like nature". The cases which were decided on the principle that if 'a plaintiff or a petitioner failed to establish a cause of action in himself no deduction of time could be allowed under Section 14 were noticed and it was accepted that they proceeded on a correct view. Illustration of the facts which would be covered by the words "or other cause of a like nature" as given in the decided cases were : (i) if a suit had failed because it was brought without proper leave; (ii) if it had failed because no notice under Section 80, Civil Procedure Code, had been given; (iii) where it would fail for non-production of the Collector's certificate required by Section 7 of the Pensions Act. In each one of these cases the court did not lack jurisdiction in its inception but the suit could not be proceeded with and disposed of until the statutory conditions laid down had been satisfied or fulfilled.
75. Mention may be made of two cases which are apposite out of the, numerous decisions relating to, the point under consideration. In Srimati Nrityamoni Dassi & Others v. Lakhan Chandra Sen, ILR 43 Cal 660 the plaintiffs were defendants in a suit brought at a prior stage. In that suit they associated themselves with the plaintiffs and prayed for adjudication of their rights. Henderson J. of the Calcutta High Court who tried the suit decreed the claims of the plaintiffs and made a similar decree in favour of the defendants. The High Court in its appellate jurisdiction, while affirming the findings of Henderson J., held that the decree granted by him in favour of the defendants could not be maintained. The decree was consequently varied and the defendants in that suit were relegated to a fresh suit for the relief to which they were clearly entitled. In the subsequent suit the question of the bar of limitation arose. This is what was observed by their' Lordships with regard to the claim that the prior period could be deducted for the purpose of limitation:
"It was an effective decree made by a competent court and was capable of being enforced until set aside. Admittedly if the period during which the plaintiffs were litigating for their rights is deducted their present suit is in time. Their Lordships are of opinion that the plea of limitation was rightly overruled by the High Court".
In Sarojendra Kumar Dutt v. Purnachandra Sinha, AIR 1949 Cal 24 S. R. Das J. (as he then was) expressed the view that the principle of Section 14 was applicable not only to cases where the person brought his suit in the wrong court but also applied where he brought his case in the right court although he was prevented from getting a trial on the merits by something which, though not a defect of jurisdiction, was analogous to that defect. There an attorney had made an application under Chapter 38, Rule 48, Original Side Rules of the Calcutta High Court, for an order against his client for payment of the sum allowed on taxation. As 8 discretion was conferred by the Rule to either make an order for payment or to refer the parties to a suit the matter was referred to a suit in view of the facts of the case. The learned judge held that the plaintiff's right had not been investigated in the Chamber Application because it was considered that it was a proper case where the attorney should be relegated to a suit. It was, therefore, by reason of an infirmity or defect of jurisdiction that the order for payment could not be made. The defect of jurisdiction was in no way brought about by the plaintiff or by any absence of diligence or good faith on his part. He was found entitled to the benefit of Section 14 of the Act.
6. It is well settled that although all questions of limitation must be decided by the provisions of the Act and the courts cannot travel beyond them the words "or other cause of a like nature" must be construed liberally. Some clue is furnished with regard to the intention of the legislature by the Explanation III in Section 14 (2). Before the enactment of the Act in 1908 there was a conflict amongst the High Courts on the question whether misjoinder and non-joinder were defects which were covered by the words "or other cause of a like nature". It was to set at rest this conflict that Explanation III was added. An extended meaning was thus given to these words. Strictly speaking misjoinder or non-joinder of parties could hardly be regarded as a defect of jurisdiction or something similar or analogous to it."
8. The judgment of the Apex Court in the case of "India Electric Works Ltd.," (supra) is not of any assistance to the Complainant. In the case supra, the admitted and proved facts were that the claim made in the suit in question in the said appeal was included in the previous money suit and a decree had been passed by the trial Court in favour of the plaintiffs for the entire claim including the claim for future damages. The plaintiffs were only required to pay additional court fee as provided by the Indian Court Fees Act for the claim 9 relating to future damages and the plaintiffs had in fact paid the required amount of additional court fee. The High Court in its judgment had negatived the claim for future damages on the sole ground that no decree could be granted for recovery of compensation after the date of suit or after the date of decree in a pure money suit. In other words, it was held that under the law the Court was not competent to decree such a suit. Thus, it was by reason of an infirmity or defect of jurisdiction that there could neither be adjudication of the claim on the merits nor could it be decreed. In the present case, it is nobody's case that the Consumer Conciliation Committee had no jurisdiction to entertain the application/complaint made by the Complainant before it. The Conciliation Committee entertained the complaint, notified the OP and fourteen hearings took place in which the Complainant appeared in person whereas the OP was represented by its Manager-Administration and the Managing Director. Unfortunately, as no settlement was possible, the failure report was drawn. There was neither an infirmity nor any defect of jurisdiction nor anything to convey something ejusdem generis or analogous to the defect of jurisdiction, even if a liberal view is taken. The Conciliation Committee which drew the failure report did not suffer from inability or incapacity to entertain the Complaint on the ground of lack of jurisdiction or any other ground analogous to the defect of jurisdiction. Section 14 of the Limitation Act cannot be applied. Section 77 of the Arbitration and Conciliation Act, 1996 provides that the parties shall not initiate, during the conciliation proceedings, any arbitral or judicial proceedings in respect of a dispute that is subject-matter of the conciliation proceedings except that a party may initiate arbitral or judicial proceedings where, in his opinion, such proceedings are necessary for preserving his rights. (underlining is ours). Thus, Section 77, above, also does not help the Complainant.
109. In the present matter, the cause of action for the first time arose on 12/04/2010. At the most it again arose on 13/12/2011. The Complaint filed on 01/09/2015 is beyond the period of two years from the date of cause of action and therefore the same has been rightly dismissed by the Forum, as barred by Limitation. The impugned order is therefore in accordance with the settled principle of law and therefore no interference with the same is called for.
10. Hence the Appeal is dismissed. However no order as to costs.
[Smt. Vidhya R. Gurav] [Justice Shri. U. V. Bakre]
Member President
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