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M/s. Gahana Mahal Rep. by Amjad Alam v/s Sadaf Safique


Company & Directors' Information:- ALAM & CO LTD [Strike Off] CIN = U60210WB1946PLC014227

    First Appeal No. A/68/2018

    Decided On, 31 July 2018

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SAMARESH PRASAD CHOWDHURY
    By, PRESIDING MEMBER

    For the Appellant: Md. Shakil, Advocate. For the Respondent: Tanvir Alam, Advocate.



Judgment Text

The challenge in this appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is to the Judgement/Final Order being Order No.28 dated 21.12.2017 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-I (in short, Ld. District Forum) in Consumer Complaint No. 560/2013. By its order, the Ld. District Forum allowed the complaint lodged by the Respondent Sadaf Shafique under Section 12 of the Act on contest with the directions upon the Appellant to take back the jewellery purchased by the respondent from the appellant and the appellant will pay the present market price of the gold jewellery, to pay compensation of Rs.20,000/- and litigation cost of Rs.2,000/-.

The Respondent herein being complainant lodged the complaint before the Ld. District Forum stating that he purchased 10.110 grams of 22 carat of gold jewellery for Rs.6,739/- from OP on 20.01.2003. After sometime, the jewellery started to fade in shine and colour and the complainant informed the same to the jewellery and requested to take back the same and refund the market value. After initial hesitation, the OP offered him Rs.23,500/- against the jewellery but at the relevant time the market value of the same was Rs.30,330/-. Thereafter, the complainant took the jewellery in some other places and came to know that the gold was not contained of 22 carat as charged by the jeweller for which the jewellery lost its shine. In this regard, the request of the complainant to take back the ornament and to make payment of present market value went in vain. Hence, the respondent approached the Ld. District Forum with prayer for several reliefs, viz. – (a) to make payment of Rs.32,000/- as amount of jewellery, (b) compensation of Rs.20,000/- towards harassment and mental agony and (c) Rs.5,000/- as litigation cost etc.

The Appellant being opposite party by filing a written version has categorically stated that the complaint is barred by limitation as the cause of action arose in the year 2003 when the alleged gold ornaments was purchased by the complainant on 20.01.2003. The OP has also stated that due to maximum use of gold and ornament for more than 11 years, it may loss its shine and colour but as there was no deficiency on the part of them, the complaint should be dismissed.

On evaluation of the pleadings and the evidence led by the parties, the Ld. District Forum by the impugned Order allowed the complaint with certain directions upon the OP, as indicated above. Being aggrieved and dissatisfied with the said order, the OP has come up in this Commission with the present appeal.

Md. Shakil, Ld. Advocate appearing for the appellant has submitted that the gold jewellery was purchased on 20.01.2003, so the cause of action has arisen on 20.01.2013 on the date on which the respondent purchased the said jewellery from the appellant. The complaint was lodged by the respondent on 20.09.2013, after a lapse of more than 10 year and that too without filing any application for condonation of delay and therefore, the complaint was barred by limitation under Section 24A of the Act. To fortify his contention, Ld. Advocate for the appellant has referred three decisions of the Hon’ble Supreme Court reported in – (1) 2009 (5) SCC 121 [State Bank of India – Vs. – B.S. Agricultural Industries]; (2) 2009 SAR (Civil) 673 [Kandimalla Raghavaiah & Co. – Vs. – National Insurance Co. & Anr.] and (3) 2006 SAR (Civil) 8 [Haryana Urban Development Authority – Vs. – B.K. Sood].

Per contra, Mr. Tanvir Alam, Ld. Advocate for the respondent has contended that regarding the point of limitation, the appellant filed an application before the Ld. District Forum and being rejected the same preferred a revisional application in this Commission being RP/117/2014 and the said revision petition was dismissed on 08.05.2015 and when no revision petition has been filed before the Hon’ble National Commission, the said order attained finality and the point of limitation cannot be raised in this appeal.

I have given due consideration to the submission made by the Ld. Advocates appearing for the parties and scrutinised the materials on record.

Admittedly, the respondent purchased the gold jewellery from the shop of respondent on 20.01.2013. On the allegation of losing the shine and colour of the jewellery and refusal on the part of appellant to accept the same on payment led the respondent to lodge the complaint before the Ld. District Forum on 20.09.2013. Evidently, there has been a delay of more than ten years in filing the complaint after the date of purchase of the ornaments. In this regard, the provision of Section 24A of the Act appears to be relevant which reproduces below –

'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 SAR (Civil) 673 (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 (5) SCC 121 (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'.

In the case reported in 2006 SAR (Civil) 8 [HUDA – Vs. - B.K. Sood], the Hon’ble Court has observed thus –

'Section 24-A of the Consumer Protection Act, 1986 (referred to as the Act hereafter) expressly cast a duty on the Commission admitting a complainant, 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 complaint 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'.

Undisputedly, the date of purchase of jewellery on 20.01.2003 was the date when the cause of action has arisen. The complaint has been filed on 20.09.2013 after a long delay of 10 years and 8 months. At the time of filing of the complaint, no application has been filed for condoning the delay. It is well settled that by making representation or exchanging letters or any other form of deliberation the period of limitation cannot be extended.

So far as revision petition being RP/117/2014 is concerned, on perusal of the order I find that liberty was given to the revisionists/OP to agitate the question of limitation at the time of final hearing. On behalf of appellant/OP, the matter was forcefully submitted before the Ld. District Forum but the Ld. District Forum did not discuss the point in details. Therefore, the submission of Ld. Advocate for the respondent that the point of limitation cannot be agitated in this appeal has no sanction in the eye of law. Therefore, the decis

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ion in the case of HUDA (supra) is squarely applies in our case where it has been observed that the claim of the respondent on the basis of the allegations contained in the complaint, was clearly barred by limitation as the two year period prescribed by Section 24A of the Act had expired much before the complaint was admitted by the Ld. District Forum. Since the complaint itself is hopelessly barred by limitation, it would be sheer wastage of valuable public time to enter into merits of the case. For the reasons aforesaid, the appeal is allowed on contest. However, there will be no order as to costs. The impugned final order/judgement is hereby set aside. Consequently, CC/13/560 stands dismissed being time barred. The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-I for information.
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