AI Structured Summary
Not yet generated for this judgment
Judgment
Manmohan, J
On 16th October, 2017, this Court had passed the following order:-
“Prima facie, this Court is of the view that the present suit is not maintainable against defendant no.2. However, as Mr.Sharma requests that he be
given an opportunity to cite certain judgments, the matter is adjourned to 9th November, 2017.â€
After some arguments, learned counsel for the plaintiff states that he has no objection if the defendant no.2/bank is deleted from the array of
parties. However, the plaintiff is given liberty to call the officials of the bank as witnesses with the relevant records in the present proceedings.
With the aforesaid liberty, defendant no.2/bank is deleted from the array of parties. Let an amended memo of parties be filed within a period of one
week.
I.A.No.15878/2015
Present application has been filed under Section 14 of the Limitation Act on behalf of the plaintiff.
Learned counsel for the plaintiff states that initially the plaintiff had approached the National Consumer Dispute Redressal Commission (hereinafter
referred to as the ‘Commission’) seeking compensation on account of a fire incident that took place on 04th November, 2007 in the factory
premises of the plaintiff. He states that though the claim petition was filed on 07th June, 2010 i.e. within the period of limitation, yet the Commission on
22nd May, 2015 was of the view that since all documents filed by the plaintiff had been denied by the Insurance Company and the matter required
extensive evidence, it would be appropriate if the matter is filed before the civil court and further the plaintiff leads proper evidence to prove its claim.
In view of the aforementioned factual position, learned counsel for the plaintiff contends that Section 14 of the Limitation Act is attracted as the
plaintiff bonafidely and unintentionally was pursuing its claim before a wrong forum.
On the other hand, learned counsel for the defendant/Insurance Company states that the contentions advanced by learned counsel for the plaintiff
are not correct. He states that the plaintiff had filed voluminous evidence before the Commission. He further states that after an extensive hearing as
the Commission was not inclined to grant any relief to the plaintiff, the said proceedings were withdrawn.
Learned counsel for the plaintiff contends that if the present petition is entertained, it would amount to giving a second chance to the plaintiff to
litigate the same issue. In support of his contention, he relies upon the judgment of the Apex Court in Dr.J.J. Merchant and others Vs. Shrinath
Chaturvedi, AIR 2002 SCC 2931,.
This Court is of the view that it has to read the order of the Commission dated 22nd May, 2015 for what it says and the circumstances surrounding
the order, as highlighted by both the learned counsel, are irrelevant. The said order is reproduced hereinbelow:-
“After extensive arguments the learned counsel for the complainant on instructions seeks to withdraw the complaint with liberty to approach the
concerned Civil Court for redressal of the grievances of the complainant. The complaint is accordingly dismissed as withdrawn.
Leave as sought is granted. If the complainant approaches the Civil Court for redresal of his grievances it shall also be open to it to seek benefit of
provision contained in Section 14 of the Limitation Act if such a benefit is otherwise available to it in law.â€
From a perusal of the aforesaid order, it is apparent that the counsel for the complainant/plaintiff had withdrawn the complaint with liberty to
approach the concerned civil court for redressal of its grievances and specific leave had been granted by the Commission for the said purpose. The
Commission had also clarified that if the plaintiff/complainant approaches the civil court for its redressal, it would be open for it to seek the benefit of
Section 14 of the Limitation Act if such a benefit is otherwise available to it in law.
This Court is of the view that the plaintiff/complainant having made known its intention of filing a civil suit had been granted specific liberty by the
Commission and not to entertain the present suit today, would render nugatory the relief and liberty granted by the Commission.
This Court is further of the opinion that the judgment of the Apex Court in Dr.J.J. Merchant (supra) has no relevance to the issue at hand as it
only declares that the Commission has the power to decide disputed questions of fact after recording evidence. In any event, as specific relief and
liberty had been granted and the matter had not been adjudicated upon on merits, this Court is of the view that the plaintiff must have his ‘day in
Court’ and the claim of the plaintiff needs to be adjudicated upon.
In fact, in a similar case, a Coordinate Bench of this Court in Anil Bhambri Vs. North Delhi Power Ltd., 188 (2012) DLT 786 has held as under:-
“4. Surely, an impression with respect to definition of a person being or not being a consumer is a legal issue and if there is a particular opinion of a
legal issue there cannot be said to be any lack of bonafides for denying the benefit of Section 14 of the Limitation Act, 1963 to the appellant/plaintiff.
Once a plaintiff pursues, in bonafide manner, a claim in wrong forum which did not have jurisdiction, such a plaintiff is entitled to the benefit of
exclusion of the period under Section 14 of the Limitation Act, 1963 spent in the wrong forum.â€
Since the plaintiff had approached the Commission within the period of limitation and had been prosecuting with due diligence the said proceedings,
this Court is of the view that the time spent by the plaintiff in prosecuting the said proceedings before the Commission needs to be excluded while
determining the period of limitation.
Accordingly, the present application is allowed.
I.A.No.21026/2015
Present application has been filed under Order VII Rule 11 CPC by the defendants for rejection of the plaint on the ground of limitation.
Keeping in view the order passed today in I.A.No.15878/2015, the present application is dismissed.
CS(OS) 2332/2015
List the matter before the Joint Registrar for admission/denial of the documents on 22nd January, 2018.