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Judgment
Dinesh Singh, J
We heard learned counsels for the appellants - complainants and the respondent - opposite party. Authorized representative of the respondent - opposite party was also present. We perused the material on record.
The relevant chronology, material to adjudicate this matter, is as below:
(i) As averred by the complainants, one Kamal Kant Singhal booked a shop with the respondent - opposite party in 2004. In 2006 he transferred his rights in the shop in favour of one Mridulika Gupta and her mother-in-law one Nirmala Mittal. Thereafter the respondent - opposite party made a fresh allotment agreement with Mridulika Gupta and Nirmala Mittal (since deceased). Despite payment of 95% of the consideration amount, possession of the subject shop was not delivered to them. Vide letter dated 15.06.2010 the respondent - opposite party cancelled the allotment of the shop.
(ii) A c.c. no. 280 of 2010 was filed by Mridulika Gupta before the State Commission.
(iii) The State Commission vide its Order dated 07.02.2013 dismissed the complaint on maintainability:
Out of the objections, raised on which is about the maintainability of the complaint needs to be decided first. The objection of the OP is that the agreement was between the OP, on the one side and complainant and her mother in law Smt. Nirmala Mittal, now deceased on the other. The complainant alone cannot thus maintain the complaint because she is not legal heir of Smt. Nirmala Mittal. It is only legal heirs of the deceased Smt. Nirmala Mittal, who have the right to maintain the complaint. The only answer given by the counsel for the complainant to this objection by the OP, is that the agreement by the complainant and the deceased Smt. Nirmala Mittal, was joint and indivisible, and the LRs of Smt. Nirmala Mittal, need not to join this complaint.
This reply of the complainant is wholly untenable and without substance. It is only the legal heirs of the deceased Smt. Nirmala Mittal, who have the right to file the complaint after her death. In case legal heirs of the deceased Smt. Nirmala Mittal refuse to join the complainant here, may make them OP to the complaint, and the complaint may thereafter proceed.
Result is that the complaint is therefore not maintainable, and is dismissed, without adverting to other grounds.
(paras 6, 7 and 8 of the State Commission's Order in c.c. no. 280 of 2010)
(emphasis supplied)
(iv) The said Mridulika Gupta along with the legal heirs of the deceased Nirmala Mittal (G.D. Mittal, K.B. Gupta, Navneet Kumar Mittal, Promila Gupta, Anju Bansal and Babita Aggarwal), the appellants herein, filed a second fresh c.c. no. 1472 of 2016 before the State Commission.
(v) In this second fresh c.c. no. 1472 of 2016 the complainants (Mridulika Gupta and G.D. Mittal, K.B. Gupta, Navneet Kumar Mittal, Promila Gupta, Anju Bansal and Babita Aggarwal) filed an application under section 24 A of the Consumer Protection Act, 1986 seeking condonation of delay in filing the (second fresh) complaint:
That the initial cause of action arose when the opposite party cancelled the allotment on 15.06.2010. The complainant approached the Hon'ble Commission on 09.09.2010 by filing a complaint. The said complaint was dismissed on technical grounds on 07.02.2013. Hence the last cause of action that compelled the complainant to seek pending relief was on 07.02.2013 and the said time, according to Consumer Protection act, ended on 07.02.2015 i.e. after two years. However the accompanying complaint is being filed in December, 2016 filed with a delay of 663 days (07.02.2015 - 05.12.2016) but the complaint was helpless under below mentioned circumstances.
That soon after on 18.05.2013, the complainant's husband got transferred orders from his employer i.e. Bank of Baroda asking him to go to Mumbai. The complainant's husband shifted to Mumbai along with the whole family including complainant; and thereafter got further transferred to Pune on 28.12.2015. The complainant too had to shift her base accordingly to various cities not getting a chance to come back and settle in Delhi and pursue her rightful claim with peace and dedication.
True copy of Office of Memorandum transferring Complainant's husband from Delhi to Mumbai has been annexed as Annexure A.
True copy of Office Memorandum transferring Complainant's husband from Mumbai to Pune has been annexed as Annexure B.
That the complainant was diagnosed with breast cancer on 21.04.2014. She was admitted to Tata Memorial hospital from 07.05.2014 to 09.05.2014. She also underwent surgery, chemotherapy and radiotherapy from 07.05.2014 to 28.10.2014. thereby making her both mentally, physically and emotionally weak. She is still under continuous treatment. The last date of meeting the concerned doctor was 13.07.2016 and next date of medical appointment is 15.02.2017.
True copies of medical documents indicating complainant's fight with cancer have been collectively annexed as Annexure C.
That the complainant still has a fragile health status and not even residing in Delhi. However she has gathered all her remaining strength to pursue this matter.
That the Hon'ble commission would kindly appreciate the settled position of law where not length of the delay but cause of the delay that matters most, and the above mentioned causes clearly indicate that complainant had not deliberately delayed the filing of accompanying complaint but was helpless under the given circumstances.
That the Hon'ble commission would further appreciate the facts that till date the complainant had not got a chance of getting her grievance being heard in totality. Moreover as on this date she neither had possession of shop nor the hard earned money that she had paid to opposite party.
(paras 2, 3, 4, 5, 6 and 7 of the application for condonation of delay)
(vi) The State Commission vide its Order dated 09.01.2017 dismissed the complaint in limine, inter alia on ground of limitation and on ground of it being a second complaint on the same cause of action:
Earlier complainant No 1 filed consumer complaint No. 280/2010 in this Commission which was dismissed on 07.02.13 on the ground that complainant No. 1 alone could not maintain the complaint case. She was not legal heir of the co-applicant named Nirmla Mittal. The plea of the complainant No. 1 that agreement was joint and indivisible and therefore LRs of Nirmla Mittal were not required to join, did not find favour with this Commission.
Cause of action arose on 15.06.10 when OP cancelled the allotment. Last cause of action arose on 07.02.13 on the dismissal of earlier complaint. The limitation expired on 07.02.15. Complainants are seeking condonation of delay by moving application on the ground that husband of complainant no. 1 was transferred to different state, complainant No. 1 suffered with cancer and took more than two years to partially recover.
Complainants have prayed for handing over of possession of the shop by execution of sale deed, Rs. 15,00,000/- as damages for pain and exploitation, Rs. 3,00,000/- as cost of litigation.
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The second hurdle in the case of the complainants is limitation. For this reference can be made to decision of National Commission in Revision Petition No. 2618/02 titled as C.H. Vithal Reddy vs. Manager, District Cooperative Central Bank, decided on 04.12.02 in which it was held that condonation of delay in filing complaint is a serious matter. The same cannot be condoned liberally. The reason being that a complaint is like a suit. Limitation Act does not contain any provision for condonation of limitation. Section 24(A) Consumer Protection Act is departure from limitation Act. Viewed in that light, condonation of delay of six hundred sixty three days is not justified.
The third obstacle is that complainant has already filed a similar complaint on the same cause of action which was dismissed vide order dated 07.02.13. Copy of the order is placed at page 90-91. Attempt by complainant to escape from the said decision is fallacious. Whether that complaint was decided on merits or on technical grounds of heirs of other co-applicant having not been joined, result is one and only one viz. second complaint being barred.
Counsel for complainant submitted that the co-applicants were in the nature of co-owners and one of the co-owner could file the complaint. If that was so, the complainant could have challenged the earlier order by way of appeal before National Commission. He cannot convass that point again by way of present appeal.
The complaint is dismissed in limini.
(paras 3, 4, 5, 7, 8, 9 and 11 of the State Commission's Order in c.c. no. 1472 of 2016)
(emphasis supplied)
(vii) This appeal has been filed by Mridulika Gupta and G.D. Mittal, K.B. Gupta, Navneet Kumar Mittal, Promila Gupta, Anju Bansal and Babita Aggarwal against the said Order dated 09.01.2017 of the State Commission.
We are, first, examining the questions of limitation and of the complaint being a second complaint on the same cause of action.
The limitation period prescribed under Section 24 A of the Act 1986 is two years from the date on which the cause of action arose:
24A. Limitation period. - (1) The District Forum, the State Commis¬sion 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 (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.
And, the limitation prescribed under Regulation 14(1)(iv) of the Regulations 2005 is thirty days from the date of the cause of action or the date of knowledge:
Limitation.- (1) Subject to the provisions of sections 15, 19 and 24A, the period of limitation in the following matters shall be as follows:-
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(iv) The period of limitation for filing any application for which no period of limitation has been specified in the Act, the rules of these regulations shall be thirty days from the date of the cause of action or the date of knowledge.
And, further, the limitation prescribed under Section 19 of the Act 1986 is thirty days from the date of Order of the State Commission:
Appeals.- Any person aggrieved by an order made by the State Commission in exercise of its powers conferred by sub-clause (i) of clause (a) of section 17 may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed:
Provided that the National Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period:
Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the State Commission, shall be entertained by the National Commission unless the appellant has deposited in the prescribed manner fifty per cent. of the amount or rupees thirty-five thousand, whichever is less.
The cause of action arose on 15.06.2010, the date on which statedly the respondent - opposite party cancelled the allotment of the subject shop.
Then, the cause to amend the complaint in c.c. no. 280 of 2010, in accordance with the observations contained in and the liberty provided by the State Commission in its Order dated 07.02.2013, or to agitate the Order of the State Commission, arose on 07.02.2013, the date on which the State Commission decided (dismissed) c.c. no. 280 of 2010.
The complaint in c.c. no. 280 of 2010 was not amended in accordance with the observations contained and the liberty provided by the State Commission in its Order dated 07.02.2013. Nor was the Order of the State Commission agitated.
A second fresh c.c. no. 1472 of 2016 was filed on 07.12.2016, after 2367 days from 15.06.2010, when the cause of action arose, and, after 1399 days from 07.02.2013, when the cause to amend the complaint in the first c.c. no. 280 of 2010 or to agitate the Order of the State Commission arose.
The first c.c. no. 280 of 2010 was filed by Mridulika Gupta before the State Commission on 09.09.2010. It was decided (dismissed) by the State Commission as not maintainable vide its Order dated 07.02.2013, for not making the legal heirs of the deceased Nirmala Mittal (co-applicant for the subject shop) party to the complaint. In effect the State Commission passed an order to either make the legal heirs of the deceased Nirmala Mittal (¬¬¬¬¬since deceased) complainants in the case, or, if they do not join the complaint as complainants, to array them as opposite parties, the objective and purpose being to afford them the due opportunity in the case. As averred by the complainants, the subject shop was allotted in favour of Mridulika Gupta and Nirmala Mittal (since deceased). The complaint was filed by only Mridulika Gupta. Legal heirs of the deceased Nirmala Mittal were not made a party. We find no fault in the State Commission requiring that the legal heirs of the deceased Nirmala Mittal be afforded opportunity in the case, either as complainants, if they so agree, or as opposite parties.
The complainant (Mridulika Gupta) in c.c. no. 280 of 2010 sat silent on the Order dated 07.02.2013 of the State Commission. The complaint was not amended, in consonance with the observations of the State Commission, by availing the liberty provided ("- - - and the complaint may thereafter proceed - - -"). Nor was the Order dated 07.02.2013 of the State Commission agitated.
No action was taken from 07.02.2013 till 07.12.2016.
On 07.12.2016, a second fresh complaint no. 1472 of 2016 was filed before the State Commission jointly by Mridulika Gupta and by the legal heirs of the deceased Nirmala Mittal (G.D. Mittal, K.B. Gupta, Navneet Kumar Mittal, Promila Gupta, Anju Bansal and Babita Aggarwal). The State Commission vide its Order dated 09.01.2017 dismissed the complaint in limine, inter alia on count of limitation and on count of it being a second complaint on the same cause of action.
We note that the dispute related to allotment of the subject shop. The cause of action arose on 15.06.2010, when the allotment of the subject shop was cancelled. The first c.c. no. 280 of 2010 was filed in the State Commission in relation thereto. The case was decided (dismissed) on 07.02.2013. Liberty to amend the complaint, provided to the complainant therein, who is the appellant no. 1 herein, was not availed of. Nor was the State Commission's said Order dated 07.02.2013 agitated.
We also note that the reasons adduced for explaining the delay, as reproduced, verbatim, in toto, in para 2 (v) above, only show an opaque view and an anyhow approach to the provisions apropos limitation contained in the Act 1986. No just or sufficient cause to condone the heavy delay, counted after two years from the date the cause of action arose (15.06.2010), or after thirty days from the date the cause to amend the first complaint or to agitate the Order of the State Commission arose (07.02.2013), is visible. In our considered view, the second fresh c.c. no. 1472 of 2016 is decisively and irrefutably barred by limitation.
Even if we look at the issue from a different perspective, and consider only the legal heirs of the deceased Nirmala Mittal, alone, in isolation of the sole complainant in c.c. no. 280 of 2010, their c.c. no. 1472 of 2016, filed on 07.12.2016, after 2367 days from 15.06.2010, when the cause of action arose, is heavily time-barred [the delay counted after two years from the date the cause of action arose (15.06.2010)].
A second fresh complaint, c.c. no. 1472 of 2016 was filed on 07.12.2016. The first case, c.c. no. 280 of 2010, had been decided (dismissed) on 07.02.2013. The matter directly and substantially in issue in the second fresh c.c. no. 1472 of 2016 was the matter directly and substantially in issue in the first c.c. no. 280 of 2010. A second fresh complaint, thus, was barred within the principle contained in section 11 of the C.P.C.
The bar of limitation, and of a second fresh case on the same cause of action, on a matter directly and substantially in issue in an earlier case, thus, decisively and irrefutably sustains.
We find no need to go into the merits of the dispute. On the counts of limitation and of the complaint being a second complaint on the same cause of action, on a matter directly and substantially in issue in an earlier case, alone, the appeal fails.
The appeal is thus dismissed.
We but find it appropriate to unequivocally and explicitly state that we have not gone into the merits of the dispute between the opposing sides.
We may also state that in case the complainants want to approach a competent civil court against the opposite party, to seek any remedy, they are free to do so, as per the law.
Here we may quote section 5 of the Limitation Act, 1963:
Extension of prescribed period in certain cases. - Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
Explanation.- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.
It goes without saying that the complainants, if they choose to bring action in a civil court, are free to file an application under section 5 of the Limitation Act, 1963, and, in such contingency, the chronological facts and proceedings in the consumer fora would be material and relevant towards making such application.
So disposed.