State Consumer Disputes Redressal Commission
M/S Manju Enterprises vs Amit Jain on 31 January, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.313 of 2021
Date of institution : 07.09.2021
Reserved On : 10.01.2022
Date of decision : 31.01.2022
M/s Manju Enterprises, through its Proprietor Manju Bala, Registered
Office at Street No.JH-6, Atal Nagar, Rahon Road, Ludhiana.
....Appellant/Complainant
Versus
Amit Jain, Proprietor M/s New Pankaj Garments, BLL World, E-8081,
New Azad, Main Road, Bahadurke.
....Respondent/Opposite Party
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against the
order dated 22.07.2021 passed by the
District Consumer Disputes Redressal
Commission, Ludhiana.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Mrs. Urvashi Agnihotri, Member.
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Argued By:-
For the appellant : None
For the respondent : Sh. Deepak Aggarwal, Advocate.
JUSTICE DAYA CHAUDHARY, PRESIDENT
The appellant/complainant has approached this
Commission by way of filing the present appeal under Section 41 of the Consumer Protection Act, 2019 to challenge the impugned order dated 22.07.2021 passed by the District Consumer Disputes First Appeal No.313 of 2021 2 Redressal Commission, Ludhiana (in short, "the District Commission") in Consumer Complaint No.161 of 2020, whereby the said complaint filed by the complainant has been summarily dismissed being barred by limitation.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
3. Briefly, the facts of the case as made out by the appellant/complainant before the District Commission are that the complainant was running a small hosiery business for earning livelihood by means of self-employment. The respondent/opposite party was doing business of sale and purchase of machines. The complainant was induced by the opposite party to purchase machines from them, by making false representations. The appellant/ complainant placed an order of 3 imported machines, out of which two were BLL Brand 612 Computerized Embroidery Machines 300*400*600* Volume 20 CBM and one Laser Engraving Machine Model No.CMA 1390. The total value/consideration of machines was ₹20,00,000/-. The complainant got sanctioned the loan amount of ₹22,00,000/- from the State Bank of Patiala, Sunder Nagar, Ludhiana. She paid an amount of ₹19,00,957/- to the respondent/opposite party (₹3,75,000/- in cash plus ₹15,25,957/- by way of Bank transfer) on 26.03.2015. The respondent/opposite party issued receipts as well as retail/invoice of ₹15,50,000/-.
First Appeal No.313 of 2021 3
4. It was further mentioned in the complaint that after receiving full and final payment of ₹19,00,957/-, the opposite party supplied used/old machines instead of brand new. Even those machines were not imported ones. This fact was brought to the notice of the opposite party by the complainant and the mistake was duly admitted by the opposite party. An assurance was given to replace the machines with brand new imported machines within a short period but the opposite party replaced only two machines and did not replace the third machine. The appellant/complainant not only sent notices but reminders as well to the opposite party for the replacement of third machine but nothing was done. It was stated to be an act of 'unfair trade practice' on the part of the opposite party. The last legal notice which was sent on 11.12.2018 was duly replied by the opposite party on 14.12.2018. By considering the cause of action, which arose to the complainant on 14.12.2018 when legal notice sent by the complainant was replied, the earlier complaint was stated to be filed within the period of limitation.
5. The said complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 was dismissed, vide order dated 10.10.2019 on the ground of limitation. Against that order, the appellant/complainant filed First Appeal No.847 of 2019 before this Commission on 23.12.2019 but the same was dismissed as withdrawn vide order dated 16.01.2020, which is reproduced as under: First Appeal No.313 of 2021 4
"Ms. Manju Bala, Proprietor of the appellant-Firm has made the statement, recorded separately, to the effect that she withdraws the present appeal as well as the complaint filed before the District Forum and prays that liberty may be granted to file fresh complaint before the District Forum with better particulars, in accordance with law.
In view of the statement of the proprietor, the appeal as well as the complaint are dismissed as withdrawn with liberty to file fresh complaint on the same cause of action before the District Forum with better particulars, in accordance with law."
6. In pursuance of order dated 16.01.2020, the appellant/complainant filed fresh complaint before this Commission, which was also dismissed vide impugned order dated 22.07.2021 on the ground of delay. The relevant portion of the impugned order as mentioned in Para No.7 and 8 is reproduced as under:
"7. From the perusal of the above order, it is evident that the previous complaint was held to be barred by time as it was not field within two years from the accrual of the cause of action. It was specifically held that the service of legal notice dated 08.10.2016 would not extend the period of limitation as provided in Section 24-A of the Consumer Protection Act, 1986. So far as the instant complaint is concerned, it has been pleaded in para no.4 of the complaint that the complainant lastly issued legal notice dated 11.12.2018, which was replied to by the OP on 14.12.2018 and therefore, the cause of action accrued to the complainant for 14.12.2018 and as such, the complaint is well within period of limitation and the period of limitation is to be counted from 14.12.2018 when the OP First Appeal No.313 of 2021 5 responded to the legal notice of the complainant. However, in our considered view, the service of fresh notice on 11.12.2018 does not extend the limitation nor, as per law, the period of limitation can be counted from 14.12.2018 when the OP replied to the notice dated 11.12.2018. It is evident from the allegations made in the complaint itself that the machines were purchased by the complainant on 26.03.2015. The complainant has claimed that two machines were replaced by the OP, but no date of replacement of the two machines has been given in the complaint nor any document has been produced on record that the OP replaced two machines. The complainant could have been filed within a period of two years from 26.03.2015. It is, therefore, evident that the complaint has not been filed within a prescribed period of limitation and is liable to be dismissed on this ground alone.
8. As a result of above discussion, the complaint is summarily dismissed, being barred by limitation. However, there shall be no order as to costs. Copies of order be supplied to complainant free of costs as per rules. File be indexed and consigned to record room."
7. The said impugned order dated 22.07.2021 passed by the District Commission in subsequent complaint has been challenged before this Commission by way of filing the present appeal, by raising various grounds.
8. Counsel for the appellant was not present at the time of hearing of the case. However, in the grounds of appeal, it is mentioned that in-spite of granting liberty by this Commission, still the subsequent complaint has been dismissed on the ground of limitation, whereas his First Appeal No.313 of 2021 6 earlier complaint was filed within the period of limitation but the same was dismissed as withdrawn with the liberty to file fresh complaint with better particulars on the same cause of action, as is clear from order dated 16.01.2020 Annexure A-2. In the impugned order, simply it has been mentioned that the complaint was not filed within the prescribed period of limitation. It is further mentioned in the grounds of appeal that liberty was sought from this Commission to file fresh complaint, which was duly granted and all detailed facts were mentioned in the subsequent complaint. There was sufficient evidence to prove the case on merits, as not only documentary evidence was available on record but the complaint was filed within the period of limitation after granting liberty by this Commission. The dismissal of subsequent complaint on limitation is not only contrary to the directions issued by this Commission for filing fresh complaint with better particulars but on the same cause of action. At the end, it is mentioned that there was no improvement in the facts but only details were mentioned and the complaint should have been decided on merits instead of dismissing the same on the ground of limitation. As such, the impugned order passed by the District Commission is liable to be set aside.
9. Mr. Deepak Aggarwal, learned counsel for the respondent/opposite party has vehemently opposed the grounds of appeal on the ground that there is no provision for extension of period of limitation and in case it was found that the complaint was filed First Appeal No.313 of 2021 7 beyond the period of limitation, as provided under the Act, the same was liable to be dismissed even without hearing on the merits of the case.
10. Heard arguments of learned counsel for the respondent/opposite party. We have also perused the impugned order and other documents available on the file.
11. Facts relating to filing of earlier complaint, dismissal thereof on the ground of limitation, filing of appeal and withdrawal of said appeal and also the liberty granted by this Commission to file fresh complaint with better particulars on the same cause of action are not disputed.
12. The issues for consideration by this Commission are (i) as to whether the complaint can be dismissed on the ground of delay in case the liberty has been granted by the appellate Court? and (ii) as to whether the delay in filing the complaint, if any, is liable to be condoned?
13. Undisputedly, the appellant/complainant earlier filed Consumer Complaint No.133 of 2019 before the District Commission, which was dismissed vide order dated 10.10.2019, on the ground of limitation by considering that the complaint was not filed within the period of two years from the date of accrual of the cause of action and not from the date of reply of legal notice i.e. 08.08.2016. First Appeal No.313 of 2021 8
14. The order of dismissal of the complaint on the ground of limitation was challenged before this Commission by way of filing First Appeal No.847 of 2019. A request was made for withdrawal of the appeal with liberty to file fresh complaint on the same cause of action before the District Commission and the said request was accepted. The appellant/complainant was allowed to file fresh complaint on the same cause of action with better particulars. In pursuance of order dated 16.01.2020 passed by this Commission, the fresh complaint was filed before the District Commission with better particulars by stating detailed facts, which was also dismissed by the District Commission, vide the impugned order dated 22.07.2021 on the ground of limitation, as mentioned above. In Para-7 of the impugned order, it has been mentioned by the District Commission that the previous complaint was held to be barred by time, as the same was not filed within the period of two years from the date of accrual of cause of action.
15. The District Commission has not mentioned even a single line that the appeal filed before this Commission was withdrawn and the appellant/complainant was allowed to file a fresh complaint on the same cause of action with better particulars. Meaning thereby the liberty, which was granted by this Commission, has not been taken into consideration and by reiterating the same stand of dismissal of complaint on the ground of limitation, the impugned order has been passed.
First Appeal No.313 of 2021 9
16. It is well settled principle of law that in case there is merit in the main case, the case should not be dismissed at the threshold on the ground of limitation. This view was held by the Hon'ble Supreme Court of India in case titled as "Collector, Land Acquisition, Anantnag and Another v. Mst. Katiji and Others" AIR 1987 SC 1353. It was held in the said case that the applicants were having good case on merits and it was found to be a sufficient reason for the purpose of condonation of delay. In Para-3 of the above said judgment, the Hon'ble Supreme Court held as under:
"3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice- that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.First Appeal No.313 of 2021 10
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal........"
17. In another case reported as Bhivchandra Shankar More v. Balu Gangaram More AIR 2019 Supreme Court 1915, the Hon'ble Supreme Court held in Para Nos.12 & 15 as under:
"12. The right of appeal under Section 96(2) CPC is a statutory right and the defendant cannot be deprived of the statutory right of appeal merely on the ground that the application filed by him under Order IX Rule 13 CPC has been dismissed. In Bhanu Kumar Jain v. Archana Kumar and Another (2005) 1 SCC 787, the Supreme Court considered the question whether the first appeal was maintainable despite the fact that an application under Order IX Rule 13 CPC was filed and dismissed. Observing that the right of appeal is a statutory right and that the litigant cannot be deprived of such right, in paras (36) and (38), it was held as under:-
"36. ............... A right to question the correctness of the decree in a first appeal is a statutory right. Such a right shall not be curtailed nor shall any embargo be fixed thereupon unless the statute expressly or by necessary implication says so. [See (2004) 5 SCC 385, Deepal Girishbhai Soni and Others v. United India Insurance Co. Ltd., Boaroda and Chandravathi P.K. and Others v. C.K. Saji and Others (2004) 3 SCC 734]."First Appeal No.313 of 2021 11
"38. The dichotomy, in our opinion, can be resolved by holding that whereas the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex parte hearing by the trial court and/or existence of a sufficient case for non-appearance of the defendant before it, it would be open to him to argue in the first appeal filed by him under Section 96(2) of the Code on the merits of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. Lack of jurisdiction of the court can also be a possible plea in such an appeal. We, however, agree with Mr. Chaudhari that the "Explanation" appended to Order 9 Rule 13 of the Code shall receive a strict construction as was held by this Court in Rani Choudhury v. Lt.-Col. Suraj Jit Choudhary (1982) 2 SCC 596, P. Kiran Kumar v. A.S. Khadar and Others (2002) 5 SCC 161 and Shyam Sundar Sarma v. Pannalal Jaiswal and Others (2005) 1 SCC 436."
15. It is a fairly well settled law that "sufficient cause"
should be given liberal construction so as to advance sustainable justice when there is no inaction, no negligence nor want of bonafide could be imputable to the appellant. After referring to various judgments, in B. Madhuri, this Court held as under:-
"6. The expression "sufficient cause" used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which serves the ends of justice. No hard-and-fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years courts have repeatedly observed that a liberal approach needs to be adopted in such matters so that substantive rights of the parties are not defeated only on the ground of delay."
18. It is also well settled law that "sufficient cause" is required to be given liberal interpretation for advancement of justice in case there was no intention in delaying the matter or negligence on the part First Appeal No.313 of 2021 12 of the party. However, no hard and fast rule can be laid down for deciding the applications for condonation of delay. Over the years together, the Courts have repeatedly observed that liberal approach is required to be adopted in such like matters, so that the substantive rights of the parties are not defeated by dismissing the case only on the ground of delay.
19. Observing that the rules of limitation are not meant to destroy the rights of the parties, in case N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123, the Hon'ble Supreme Court held as under:
""11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time."
As pointed out earlier, an appeal under Section 96 CPC is a statutory right. Generally, delays in preferring appeals are required to be condoned, in the interest of justice, where there is no gross negligence or deliberate First Appeal No.313 of 2021 13 inaction or lack of bonafide is imputable to the party seeking condonation of delay."
20. In one more judgment of case Ummer v. Pottengal Subida & Ors. AIR 2018 SC 2025, the Hon'ble Supreme Court has held as follows:
"18. Once cannot now dispute the legal proposition that the earlier view of this Court that the appellate was required to explain the delay of each day till the date of filing the appeal has since been diluted by the later decision of this Court and is, therefore, held as no longer good law."
21. By considering the ratio of said judgments and also the provisions of Section 5 of the Limitation Act, the Court has to keep in mind that the discretion as provided in the said Section has to be exercised to advance substantial justice. The Court is having discretion to condone or to refuse to condone the delay, as is clear from the words "may be admitted" used in the Section. While dealing with the scope of Section 5 of the Limitation Act, the Hon'ble Supreme Court in case Ramlal & Ors. v. Rewa Coalfields Ltd. AIR 1962 SC 361 held as under:
"Section 5 of the Limitation Act provides for extension of period in certain cases. It lays down, inter alia, that any appeal may be admitted after the period of limitation prescribed therefor when the appellant satisfies the court that he had sufficient cause for not preferring the appeal within such period. This section raises two questions for consideration. First is, what is sufficient cause; and the second, what is the meaning of the clause "within such period"? With the first question we are not concerned in the present appeal. It is the second question which has been decided by the Judicial Commissioner against the First Appeal No.313 of 2021 14 appellant. He has held that "within such period" in substance means during the period prescribed for making the appeal. In other words, according to him, when an appellant prefers an appeal beyond the period of limitation prescribed he must show that he acted diligently and that there was some reason which prevented him from preferring the appeal during the period of limitation prescribed. If the Judicial Commissioner has held that "within such period" means "the period of the delay between the last day for filing the appeal & the date on which the appeal was actually filed"
he would undoubtedly have come to the conclusion that the illness of Ramlal on February 16 was a sufficient cause. That clearly appears to be the effect of his judgment. That is why it is unnecessary for us to consider what is "a sufficient cause" in the present appeal. It has been urged before us by Mr. Andley, for the appellant, that the construction placed by the Judicial Commissioner on the words "within such period" is erroneous.
In construing S.5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light- heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 3 Mad 269, "Section 5 gives the court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor First Appeal No.313 of 2021 15 inaction nor want of bonafide is imputable to the appellant."
22. Further, the Hon'ble Supreme Court in Appeal (Civil) 4779 of 2001 (M.K. Prasad v. P. Arumugam) decided on 30.07.2001, held as under:
"Again in The State of West Bengal v. The Administrator, Howrah Municipality & Ors. 1972 (1) SCC 366 and G. Ramegowda, Major & Ors. v. Special Land Acquisition Officer, Bangalore 1988 (2) SCC 142 this Court observed the expression "sufficient cause" in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bonafide is not imputable to the party seeking condonation of delay. Law of limitation has been enacted to serve the interests of justice and not to defeat it. Again in N. Balakrishnan v. M.Krishnamurthy [1998 (7) SCC 123] this Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant. In the absence of anything showing malafide or deliberate delay as a dilatory tactics, the court should normally condone the delay. However, in such a case the court should also keep in mind the constant litigation expenses incurred or to be incurred by the opposite party and should compensate him accordingly. In that context the court observed:
"It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court."First Appeal No.313 of 2021 16
23. On perusal of ratio of said judgments, it is apparent that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. The number of days of causing delay is not material but the explanation given by the party is relevant; as in some of the cases even the short delay in filing the cases is not condoned due to want of acceptable explanation, whereas in some other cases a long delay can be condoned where delay has been satisfactorily explained. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the Courts exercise their discretion by recording findings. In some other cases, the first Court refuses to condone the delay but subsequently the superior Court condones the delay by recording reasons and findings, which have not been given by the first Court.
24. In some of the cases, the parties appear not to be vigilant, as they should have been and in such a situation, the delay is not condoned. No doubt, the inconvenience is caused to the opposite party on account of delay but keeping in view the interest of justice and by considering the peculiar circumstances of the case, the delay is to be condoned.
25. In certain cases, where recurring cause of action is there, like proper pay fixation and cases of promotion or grant of increment, the delay is to be condoned. Under the similar circumstances, where First Appeal No.313 of 2021 17 there was continuous cause of action, Hon'ble Delhi State Commission dismissed the complaint, on the ground of limitation by passing the following order:
"6. I have gone through the material on record and heard the counsel for parties on the question of limitation. The counsel for OP has relied upon decision of National Commission in Writ Petition No.2618/02 titled as C.H. Vittal Reddy Vs. the Manager, District Coop. Central Bank Ltd. and Ors. decided on 04.12.2002. Condonation of delay when it is the complaint has to be taken very seriously and that is why proviso to sub section (2) of Section 24A mandates recording of reasons. It must be understood that a suit filed in a Civil Court after the period of limitation prescribed under the Limitation Act has to be dismissed and there is no provision for condoning the delay on the ground of any sufficient cause being shown for not filing the suit within the period of limitation. This is the law which is in force since 1908 when the Limitation Act, 1908 came into force and same is the position of the Limitation Act, 1963. Sub section (2) of Section 24A is a departure to the well settled law that a suit beyond the period of limitation prescribed under the Limitation Act has to be dismissed. A Consumer Forum has, therefore, to guard itself against the misuse of sub-section (2) of Section 24A and should not be quick to condone the delay unless cogent and verifiable reasons exist to condone the delay.
7. The application for condonation of delay is dismissed. With this complaint also stands dismissed as barred by limitation"
26. The aggrieved party filed appeal before the Hon'ble National Commission to challenge the order passed by the State Commission and by considering the case of continuous cause of action in First Appeal No.986 of 2016 (Saroj Kharbanda v. BIGJO's Estates Limited & Anr.) decided on 01.02.2018, the delay was condoned and the order passed by the State Commission was set aside and the matter was remitted back to the State Commission for First Appeal No.313 of 2021 18 deciding the complaint on merits after giving fresh opportunity to both the parties to lead evidence in their favour.
27. Similar issue was there before the Hon'ble National Commission in case of (Sudha Katyal v. State Bank of Patiala) Revision Petition No.2598 of 2013 decided vide order dated 08.05.2019, wherein the delay was condoned.
28. Further, Section 22 of the Limitation Act, 1963 is also applicable in the present case, which is reproduced as under:
"22. Continuing breaches and torts:--
In the case of a continuing breach of contract or in the case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues."
29. Moreover, the cause of action is bundle of facts and factum of limitation shall be a mixed question of fact and law. In case of rights and duties created by the terms of a contract between the parties, a breach of a duty is a wrong arising out of contract. Where they are created otherwise than under a contract the breach of a duty is a wrong independent of contract. A breach of either of these duties is thus a wrong and the tests applicable to find out what is a "continuing wrong‟ are equally applicable to find out what is a "continuing breach of contract‟. The criteria for application of Section 22 of the Limitation Act is not whether the right or its corresponding obligation is a continuing one, but whether the wrong is a continuing one. Where the First Appeal No.313 of 2021 19 wrong consists of a breach of positive duty, i.e., to do something, the test to find out whether there is a continuing wrong is to see whether the duty is to continue to do that thing. If so, the omission to do that thing is a continuing wrong during the time the omission lasts. Where the wrong consists of a breach of negative duty, i.e., to refrain from doing something, the test to find out whether there is a continuing wrong is to see whether the wrongful act produce a state of affairs, every moment's continuance of which is a new wrong (i.e. which is a continuing source of injury) and is of such a nature as to render the doer of it responsible for the continuance. If the wrongful act is of such a nature, it is a continuing wrong.
30. From the facts and circumstances, ratio of judgments as mentioned above, we are of the view that in the present case, the liberty was granted by this Commission to the appellant/complainant to file fresh complaint with better particulars vide order dated 16.01.2020 but still the fresh complaint was dismissed on the ground of limitation and nothing has been said on merits. Even no satisfaction has been recorded in the impugned order, whereas the reasons were required to be given by giving reference to the liberty granted by this Commission. The impugned order does not reflect as to what was the stand of the parties. The appropriate order should have been passed after recording the contentions on the issue of delay if any as well as on merits. However, nothing like this has been has been done and even a First Appeal No.313 of 2021 20 single finding has not been recorded with regard to merits of the case. In the impugned order, nowhere it has been mentioned that the liberty was given by this Commission for hearing the complaint which was ordered to be filed with better particulars.
31. Keeping in view the observations, facts of the case and ratio of law laid down by the different Courts, including the Hon'ble Apex Court, as cited above as well as the order passed by this Commission, whereby the liberty was granted, it is held that the impugned order dated 12.07.2021 passed by the District Commission is liable to be set aside. Moreover, the cause of action was continuing by sending reminders and legal notice and thereafter responding to legal notice by way of sending reply thereto. These are the different and peculiar circumstances, which show the action not warranted and inaction on the part of the respondent/opposite party. Such like action on the part of the opposite party is not only harassment to the complainant as well as mental agony, which has resulted into the frequent litigation due to which the complainant had to incur the legal expenses as well.
32. Accordingly, the present appeal is allowed and the impugned order dated 22.07.2021 passed by the District Commission is set aside. The case is remanded back to the District Commission for deciding the same afresh on merits after First Appeal No.313 of 2021 21 giving adequate opportunity to both the parties to lead evidence and raise arguments in respect of their respective contentions.
33. The parties are directed to be present before the District Commission on 02.03.2022.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (URVASHI AGNIHOTRI) MEMBER January 31, 2022.
(Gurmeet S)