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M/s. Worldwide Immigration Consultancy Services Ltd. & Others v/s Kamaljit Singh

    First Appeal No. 40 of 2014

    Decided On, 29 April 2014

    At, Union Territory Consumer Disputes Redressal Commission UT Chandigarh

    By, THE HONOURABLE MR. JUSTICE SHAM SUNDER (RETD.)
    By, PRESIDENT
    By, THE HONOURABLE MR. DEV RAJ
    By, MEMBER & THE HONOURABLE MRS. PADMA PANDEY
    By, MEMBER

    For the Appellants: Raman Walia, Advocate. For the Respondent: Navjinder Singh Sidhu, Advocate.



Judgment Text

Padma Pandey, Member:

1. This appeal is directed against the order dated 27.12.2013, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it allowed the complaint filed by the complainant and directed the Opposite Parties (now appellants) as under:-

'11. In the light of above observations, we are of the concerted view that the Opposite Parties are found deficient in giving proper service to the complainant. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Parties, and the same is allowed, qua them, jointly & severally. The Opposite Parties are directed to:-

[a] To refund Rs.2,41,000/- (Rs.2,16,000/- + Rs.25,000/- as per Annexure C-4 & C-2 respectively)

[b] To pay Rs.25,000/- on account of deficiency in service;

[C] To pay Rs.10,000/- as cost of litigation;

12. The above said order shall be complied within 45 days of its receipt by the Opposite Parties; thereafter, they shall be liable for an interest @18% per annum on the amount mentioned in per sub-para [a] & [b] of para 11 above, apart from cost of litigation of Rs.10,000/-, from the date of institution of this complaint, till it is paid'.

2. In brief, the facts of the case are that the Opposite Parties published a lucrative advertisement in a newspaper in the year 2008, whereby, they made known to the public at large, their plans and establishments. Fascinated by a long list of promises of providing a number of services at a considerable rate with no future hassles, the complainant got enrolled himself with the Opposite Parties for the procurement of Work Permit. After completing the requisite formalities of submitting an application form and signing the same all in good faith, on the suggestion of the Opposite Parties that the work permit for Czech Republic was best for the complainant as it was easy to procure and the same shall be made available positively within 3-4 months time, the complainant paid a sum of Rs.25,000/- at the time of signing the agreement, vide receipt No. 912, dated 28.2.2008, alongwith 170 EUROs (Annexures C-1 & C-2). The complainant deposited all the requisite amounts as and when demanded by the Opposite Parties. It was further stated that the complainant deposited another sum of Rs.1,00,000/- as desired by the Opposite Parties vide Receipt No. 201208 dated 15.9.2008 (Annexure C-3, Colly). It was further stated that the complainant approached the Opposite Parties many times to know the status of his case, but every time they promised to get the work permit soon. It was further stated that the Opposite Parties demanded another sum of Rs.2,16,000/- and the same was paid by the complainant vide Receipt No.211908, dated 29.10.2008 (Annexure C-4). It was further stated that as the Opposite Parties failed to honour their commitments for procuring work permit for Czech Republic, the complainant requested for refund of the amount deposited by him, but every time he was sent back with the promise to procure work visa very soon.

3. It was further stated that left with no other alternative, the complainant wrote a letter dated 2.10.2009 for refund of his total amount of Rs.3,52,000/-. The complainant was called by the Opposite Parties on 02.02.2010, and got signed consent letter dated 02.02.2010 and returned Rs.1.00 lakh to him on 28.5.2010 vide cheque No.166209 dated 2.6.2010 and promised to procure the visa or release the balance payments shortly. It was further stated that the complainant received the payments under protest (Annexures C-5 to C-7). It was further stated that the complainant requested the Opposite Parties to return his balance amount vide letter dated 22.12.2010 and 14.10.2012 but neither they had returned the balance amount nor ever responded to the letters (Annexure C-8 and C-9). Ultimately, a legal notice dated 14.05.2013, Annexure C-10 was got served upon the Opposite Parties, but to no effect. It was further stated that the Opposite Parties were deficient, in rendering service, as also, indulged into unfair trade practice. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the 'Act' only), was filed.

4. In their joint written statement, the Opposite Parties pleaded that the complaint was barred by time. It was stated that the complainant had entered into two separate Contracts of Engagement i.e. one with the answering Opposite Party (Annexure R-1) and the second with M/s GSBC, Dubai, U.A.E. (Annexure R-2). It was further stated that M/s GSBC is an independent company and is a separate legal entity with its registered office at Dubai and both the Companies were to perform their professional duties strictly in accordance with the Contract of Engagement. It was further stated that the Opposite Parties received a total professional fee of Rs.1,25,000/- only vide receipt No. 919, dated 28.02.2008 and receipt Nos.227, 228, 229 dated 15.09.2008. The said professional fee was strictly in accordance with Clause 3 of the said Contract of Engagement and the same was received through cheque/demand draft only, no other amount was received by them. It was further stated that further amount of US $ 4500 i.e. Rs.2,16,000/- was never received by the Opposite Parties and the receipt produced by the complainant was found to be a bogus/ fabricated one. The complainant was at liberty to prove the payment of Rs.2,16,000/- in the account of the Company by way of Civil Suit strictly in accordance with the legal rights available to him and the said matter could not be agitated by way of present complaint. It was further stated that the complainant had already received an amount of Rs.1,00,000/- in full and final settlement of his claim vide cheque dated 02.06.2010. It was further stated that, the Opposite Parties were neither deficient, in rendering service nor indulged into unfair trade practice. The remaining allegations were denied, being false.

5. The Parties led evidence, in support of their case.

6. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, allowed the complaint, as stated above.

7. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.

8. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.

9. The Counsel for the appellants/Opposite Parties submitted that the complainant entered into two separate Contracts of Engagement i.e. one with the Opposite Parties (Annexure R-1) and the second Contract with M/s GSBC, Dubai, U.A.E. (Annexure R-2). He further submitted that M/s GSBC is an independent Company and is a separate legal entity with its registered office at Dubai and both the companies were to perform their professional duties strictly in accordance with the Contract of Engagement. He further submitted that the Opposite Parties received a total professional fee of Rs.1,25,000/- only through cheque/demand draft, which was strictly in accordance with Clause 3 of the said Contract of Engagement. He further submitted that the amount of US $ 4500 i.e. Rs.2,16,000/- was never received by the Opposite Parties and the receipt produced by the complainant was found to be a bogus/ fabricated one. He further submitted that the complainant had already received an amount of Rs.1,00,000/- in full and final settlement of his claim vide cheque dated 02.06.2010. He further submitted that there was huge delay of 417 days in filing the complaint, which was wrongly condoned by the District Forum. He further submitted that the complaint, being barred by time, was liable to be dismissed. He further submitted that the order of the District Forum, being illegal, is liable to be set aside.

10. On the other hand, the Counsel for the respondent/complainant submitted that the District Forum was right in condoning the delay in filing the complaint as well as allowing the complaint. He further submitted that the order of the District Forum, being legal, is liable to be upheld.

11. Before going to the merits of the appeal, it is necessary to decide, as to whether, the District Forum was right in condoning the huge delay of 417 days in fling the complaint or not. It is evident from the record that the cause of action, if any, primarily arose to the complainant on 02.06.2010 when the cheque in the sum of Rs.1.00 lac was handed over to him, as refund of the amount deposited by him, for availing of the services of the Opposite Parties. No doubt, the complainant wrote letters dated 22.12.2010 and 14.10.2012 seeking refund of the balance amount which was further followed up by instituting the complaint in the District Forum on 12.07.2013. However, in our considered view, it is settled principle of law, that the period of limitation cannot be extended by mere writing letters to the Opposite Parties. As per Section 24-A of the Consumer Protection Act, 1986, the District Forum shall not admit a complaint unless it is filed within two years from the date on which the cause of action arose. Section 24-A of the Consumer Protection Act, 1986 reads as under:

'24-A. Limitation period. - (l) 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 contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (l), 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 perusal of the record shows that the complainant filed the complaint before the District Forum on 12.07.2013, whereas, the application for condonation of delay of 417 days in filing the complaint was filed on 22.07.2013 and the cause of action, if any, arose to the complainant on 02.06.2010, when the Opposite Parties returned a sum of Rs.1 lac only by way of cheque. Since the time period of 3 years had lapsed from the date of cause of action (02.06.2010) to the institution of the complaint (13.07.2013) and there was absence of continuing cause of action, we are of the considered view that the District Forum was wrong in condoning the delay of 417 days, in filing the complaint as in the application seeking condonation of delay, the complainant failed to show any sufficient cause as to what prevented him from filing the complaint within the stipulated period of two years from the date of accrual of cause of action.

12. In Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) it was held as under:-

'It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras'

13. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it was held as under:-

'It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.'

14. As such, the complainant, acted in a highly irresponsible and negligent manner, and woke up from his deep slumber, after 417 days of the accrual of cause of action. The complainant did not act, with due diligence, resulting into delay of 417 days, in filing the complaint. The complainant was required to explain each day’s delay but, he miserably failed to explain the same. Complete in-action and lack of bonafides, of the complainant is writ large, on the face of record, and attributable to him, in filing the complaint, after a delay of 417 days. The delay, in filing the co

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mplaint was, thus, intentional, willful and deliberate. Since, no sufficient cause was constituted, from the averments, contained in the application, the delay of 417 days, was illegally condoned. The complaint was liable to be dismissed solely, on the ground, that it was barred by limitation. The principle, of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. 15. In State Bank of India Vs B.S.Agricultural Industries (I) II(2009)CPJ 29(SC), the Hon’ble Apex Court was pleased to observe that as a matter of law, the Consumer Forum must deal with the complaint on merits only, if the complaint is filed within two years from the date of accrual of cause of action and if the same 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. The principle of law, laid down, by the Apex Court in State Bank of India’s case(supra), is equally applicable to the facts and circumstances of the present case. 16. For the reasons, recorded above, the appeal is accepted, with no order as to costs. The order of the District Forum is set aside and the complaint is dismissed being barred by time. 17. Certified Copies of this order be sent to the parties, free of charge. 18. The file be consigned to Record Room, after completion.
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