State Consumer Disputes Redressal Commission
Ajay Kumar Gupta vs Magma Finance Company Limited on 28 January, 2014
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR(C.G.)
Appeal No.FA/13/46
Instituted on : 08.01.2013
Ajay Kumar Gupta, S/o Shri Jugal Kishore Gupta,
R/o : Wadrafnagar,
Tehsil - Wadrafnagar, District Balrampur (C.G.) ... Appellant.
Vs.
Magma Finance Company Limited,
Through : Branch Manager,
Local address : Manendagarh Road, Ambedkar Chowk,
Ambikapur, District Surguja (C.G.) ... Respondent.
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE MS. HEENA THAKKAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri R.K. Bhawnani, Advocate, for appellant.
Shri Rakesh Puri, Advocate for respondent.
ORDER
Dated : 28/01/2014 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. This appeal is directed against order dated 22.12.2012, passed by District Consumer Disputes Redressal Forum, Surguja, Ambikapur (C.G.) (henceforth "District Forum") in Complaint Case No.84/2012, whereby the complaint of the complainant/appellant, has been dismissed as barred by time.
2. Briefly stated, the facts of the case of the complainant/appellant before the District Forum are that the complainant/appellant, Ajay Kumar Gupta, is registered owner of the vehicle Maruti Omni van bearing registration No.C.G.15-4696 and O.P./respondent/Magma //2 // Finance Company Ltd. is financer. The complainant/appellant purchased the said vehicle with the help of finance provided by the O.P./respondent. The complainant/appellant obtained loan of Rs.1,00,000/- from the O.P./respondent and the entire loan amount was deposited by him to the O.P./respondent on 07.09.2003 along with interest, but O.P./respondent did not issue No Objection Certificate to the complainant/appellant. The complainant/appellant met with the O.P./respondent, near about 10 to 15 times, but the O.P./respondent did not issue No Objection Certificate to him and thus, committed deficiency in service, therefore, the complainant/appellant filed complaint before the District Forum.
3. The O.P./respondent filed written statement before the District Forum and averred that the complainant/appellant obtained loan of Rs.1,00,000/- from the O.P./respondent and according to the agreement executed between the parties, a sum of Rs.1,20,050/- was payable by the complainant/appellant to the O.P./respondent in monthly instalments, but the complainant/appellant defaulted in making payment of instalments. Due to delayed payment of instalments, the complainant/appellant was liable to pay a sum of Rs.1,37,374/- and cheque bouncing charges Rs.2,000/- totalling Rs.1,39,374/-, but the complainant/appellant failed to deposit the above amount. In agreement, there is a provision that dispute between the parties may be resolved through Arbitrator under provisions of Arbitration and //3 // Conciliation Act, 1996, therefore, the District Forum, has no jurisdiction to try the case. The O.P./respondent further averred that cause of action was arosed in the year 2003 and complainant/appellant filed complaint before the District Forum, in the year 2012, which is hopelessly barred by time and therefore, the complaint is liable to be dismissed.
4. Learned District Forum, after appreciation of material available before it, dismissed the complaint of the complainant/appellant as barred by time.
5. Learned counsel for the complainant/appellant argued that the complainant/appellant was regularly depositing the instalments of the loan and the entire loan amount was deposited by the complainant/appellant with the O.P./respondent on 07.09.2003 along with interest, and no loan amount was due against the complainant/appellant and O.P./respondent deliberately not issued No Objection Certificate to the complainant/appellant. The complainant/appellant contacted with the O.P./respondent 0so many times, but the O.P./respondent did not respond. According to Agreement executed between the parties, the complainant/appellant is "consumer" of the O.P./respondent and therefore, the District Forum, has jurisdiction to try the case. In the Agreement, there is provision that in case of dispute between the parties, the matter will be referred to the Arbitrator, but on the basis of Section 3 of the Consumer Protection Act, 1986, the Consumer Forum has jurisdiction to try the case. The //4 // complainant/appellant met with the O.P./respondent Finance Company on 10.02.2011 and thereafter sent legal notice on 08.06.2012. Therefore, the compliant of the complainant is within time and the finding recorded by the District Forum, is erroneous and is not sustainable in the eye of law.
6. Shri Rakesh Puri, learned counsel for the O.P./respondent Finance Company submitted that the cause of action was arosed in the year and the complaint has been filed by the complainant/appellant in the year 2012, which is hopelessly barred by time. Mere sending legal notice does not extend limitation for filing the complaint, therefore, the finding recorded by the District Forum, is appropriate and does not call for any interference by this Commission.
7. We have heard learned counsel for both the parties at length and have also perused the record of the District Forum.
8. In Kandimalla Raghavaiah And Co. Vs. National Insurance Co. & Anr., (2009) 7 Supreme Court Cases 768, Hon'ble Supreme Court observed thus:
"17. Section 24-A of the Act bars any fora set up under the Act, from admitting a complaint, unless the complaint is filed within two years from the date on which the cause of action has arisen. The provision expressly casts a duty on the Commission, admitting a complaint, to dismiss a complaint unless the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that the complainant had sufficient cause for not filing the complaint within the period of two years from the date on which the cause of action had arisen. Recently, in SBI v. B.S.Agriculture Industries (I) this Court, while //5 // dealing with the same provision, has held: (SCC p. 125, paras 11-
12) "11. ...It would be seen from the aforesaid provision that it is peremptory in nature and requires the 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 complaint' occurring in Section 24-A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within the limitation period prescribed thereunder.
12. 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 24-A 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.
18. The term "cause of action" is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of import. It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described as "bundle of facts", which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, "cause of action" means the cause of action for which the suit is brought, "Cause of action" is cause of action which gives occasion for and forms the foundation of the suit. (See Sidramappa v. Rajashetty.) In the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out."
9. In H.P.State Forest Co. Ltd. Vs. M/s. United India Insurance Co. Ltd, 2009 AIR SCW 865, Hon'ble Supreme Court observed thus:
"5. It is clear from the record that the timber had been washed away some time in September 1988 and after prolonged correspondence, the respondent ultimately vide its communication dated 13th October, 1988 repudiated the appellant's claim. It is also clear from //6 // the counter-affidavit filed by the respondent that the appellant had, vide its letter dated 7th November, 1987, asked for insurance cover for a period of 8 months and that the period of one year fixed in the insurance policy was evidently a typographical mistake which had, in any case, been rectified in the records of the company on 17th December, 1987, that is long before the flood. The claim of the appellant that the respondent - company had, even after the 13th October, 1988, impliedly admitted its liability under the policy also appears to be incorrect as the surveyors had been appointed on the persistent demand of the claimant / appellant and the premium taken thereafter was only to make good the deficiency in the premium that had been paid for the policy for the period of eight months. It is therefore, apparent that as on the date of the flood, there was no insurance policy in existence or any commitment on behalf of the respondent to make the payment under the policy. We therefore, endorse the argument raised by the respondent that even accepting the case of the appellant at its very best that the period of limitation would be 3 years under Section 44 of the Limitation Act, the complaint would, even then, be beyond time, having been filed in April 1994."
10. The complainant/appellant filed document A-1 i.e. Certificate of Registration of vehicle bearing registration No.C.G.15-4696 and document A-2(1) is Deed of Hypothecation. Document A-2(2) is a Schedule in which the due date and amount was mentioned and document A-3(2) to A-3(6) are photocopy of pass book of saving bank account of the complainant/appellant.
11. According to document A-2(2) the amounts were deposited by the complainant/appellant, but it is not established that the amount mentioned in the said document was actually deposited in the account of the O.P./respondent Finance Company. According to document A-2(2), the last deposit was made on 07.09.2003. In the copy of pass book of the complainant/appellant, also last entry was recorded on 18.11.2003.
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12. According to the complainant/appellant he deposited the entire loan amount along with interest to the O.P./respondent on 07.09.2003 and O.P./respondent/Finance Company did not issue No Objection Certificate to the complainant/appellant and the complainant/appellant did not mentioned that for the period from 07.09.2003 to 10.02.2011 in which date he contacted with the O.P./respondent Finance Company. Simply he averred that he met the last time with the O.P./respondent on 10.02.2011 and thereafter sent legal notice to the O.P. /respondent on 08.06.2012.
13. In the instant case, according to the complainant/appellant, he deposited the entire loan amount along with interest on 07.09.2003 and he contacted with O.P./respondent for No Objection Certificate but the O.P./respondent did not issue No. Objection Certificate to him. It appears that the cause of action arosed on 07.09.2003 and the complaint was filed by the complainant/appellant on 27.06.2012. It further appears that the cause of action was arosed on 07.09.2003, therefore mere sending legal notice to O.P./respondent does not extend limitation for filing complaint. The complaint filed by the complainant/appellant is apparently barred by time.
14. Therefore, the District Forum, has rightly recorded the finding that the complaint of the complainant/appellant is barred by time, hence order passed by the District Forum does not suffer from any infirmity or illegality and does not call for any interference by this Commission.
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15. Therefore, the appeal filed by the complainant/appellant being devoid of any merits, deserves to be and is hereby dismissed. No order as to cost of this appeal.
(Justice R.S.Sharma) (Ms.Heena Thakkar)
President Member
/01/2014 /01/2014