Before the District Consumer Disputes Redressal Forum, Mandi, H.P.
Complaint Case No.292/2008
Date of Institution 3-12-2008
Date of Decision 30-5-2009
Mahalakashmi Oil Mills Village and Post Office Gutkar, Tehsil Sadar, District Mandi, H.P. through its partner Sh. Harsh Gupta son of Sh. Beas Dev Gupta resident of village and Post Office Gutkar, Tehsil Sadar, District Mandi, H.P.
…Complainant
V/S
Kusum Enterprises 33-B Adarsh Nagar, Jallandhar through its Proprietor Smt. Kushm Chugh
…Opposite party
For the complainant Sh. Lokender Kutleheria , Advocate
Opposite party Exparte
Complaint under Section 12 of the
Consumer Protection Act, 1986.
ORDER.
This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party. The complainant averred that the complainant is a registered firm. The allegation of the complainant is that the opposite party had supplied shrink machine to the complainant for wrapping of plastic bottles on 28-2-2004 vide purchase order dated 7-2-2004, but the aforesaid machine did not work properly as the same was causing damage to the plastic bottles . The complainant further alleged that he had pointed out the above defect to the opposite party and the opposite party sent its Engineer to the complainant’s concern , who checked the machine and found that the machine was defective . According to the complainant , the Engineer of the opposite party assured the complainant that defective machine would be changed with new one which was replaced accordingly but the new replaced machine was also defective one . The complainant again pointed out the defect to the opposite party causing production loss and sale loss to him and opposite party assured the complainant telephonically to remove the machine but neither machine was replaced nor defect was rectified by the opposite party. The complainant further averred that in compelling circumstances, he purchased a new machine of another company. The complainant alleged that transportation charges of both the times of delivery of the machine were borne by the complainant firm The complainant alleged that a sum of Rs.10,000/- was paid as an advance to the opposite party by demand draft dated 10-2-2004 and is entitled to refund of the amount with interest . The complainant also alleged that the firm had suffered production loss and the act of the opposite party falls within deficiency in service as well as unfair trade practice and had claimed a sum of Rs.50,000/- as damages . The complainant also averred that the opposite party was served with legal notice dated 28-3-2008 but it refused to accept the claim. On these allegations, the complainant had sought a direction to the opposite party to take away the defective ,machine and refund Rs.10,000/- with interest .A sum of Rs.50,000/- has been claimed as damages apart from costs of complaint.
2. The opposite party filed reply by raising preliminary objections that the complaint is not maintainable as the complainant does not fall within the ambit of consumer as the transaction between the parties is of commercial nature , that the complainant had concealed the material facts from this forum , that no cause of action has arisen to the complainant within the jurisdiction of this Forum because as per the bill, all the disputes were subject to Jalandhar jurisdiction and that the transaction took place on 7-2-2004 and the complaint had been filed on 28-11-2008 i.e. beyond the period of limitation. On merits , the opposite party had averred that the complainant is doing business of commercial nature . It has been admitted that shrink machine was supplied to the complainant on 28-2-2004 vide purchase order dated 7-2-2004. The opposite party had denied that it had ever sent the Engineer to the complainant’s concern or the machine was replaced . The opposite party pleaded that the machine was not manufactured by it .It has been denied that the complainant had suffered losses due to the act of the opposite party and complainant firm was given any assurance for replacement of the machine . The opposite party had denied that the machine was defective .The opposite party had admitted that a sum of Rs.10,000/- had been received as advance money for machine and for failure of the complainant firm to pay the balance amount , civil suit in the court of Civil Judge , Junior Division Jalandhar was filed on 30-7-2008. The opposite party had averred that the complainant owed a sum of Rs.25,360/- alongwith interest and cost as on 30-7-2008 for which a civil suit is pending . The opposite party had prayed for dismissal of the complaint. Be it stated that later on the opposite party was proceeded against exparte on 30-3-2009.
3. The complainant had filed rejoinder reiterating the contents of the complaint and denying those contrary to the complaint.
4. We have heard the ld. counsel for the parties and have also gone through the entire record. The case of the complainant is that the opposite party supplied him shrink machine on 28-2-2004 vide purchase order dated 7-2-2004 and he had paid a sum of Rs.10,000/- as an advance to the opposite party vide demand draft dated 10-2-2004. According to the complainant, said machine did not work properly because it was defective. Thereafter , the engineer of the opposite party visited the complainant’s firm and he found that the machine was defective and assured that machine would be replaced, however, thereafter the opposite party neither repaired the machine nor replaced the same and ultimately the complainant issued a legal notice dated 28-3-2008 to the opposite party. The complainant averred that the cause of action firstly accrued to him in the month of March 2004 when the machine was purchased and thereafter on 28-3-2008 when the opposite party was served with legal notice and on 18-11-2008 when the opposite party flatly refused to admit the claim of the complainant.
5 Now the question which arises for determination by this Forum is as to whether the complaint filed by the complaint before this Forum is within limitation. At this juncture , it would be relevant to make a mention to section 24-A of the Act which provides limitation period for admission of a complaint which reads as under:-
“24-A. 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 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.”
The perusal of aforesaid section shows that no complaint shall be admitted unless it is filed within two years from the date on which the cause of action has arisen and the complaint may be entertained after stipulated period if the complainant shows that he had sufficient cause for not filing of the complaint within such period . Admittedly the machine was purchased by the complainant from the opposite party on 28-2-2004 vide purchase order dated 7-2-2004 and the present complaint has been filed on 3-12-2008 i.e. much beyond a period of two years as prescribed under section 24-A of the Act. Though ,as per the case of the complainant fresh cause of action had arisen to him when the opposite party was served with legal notice dated 28-3-2008. However, in our opinion, the service of legal notice upon the opposite party will not extend the period of limitation. The complainant has failed to show any sufficient cause for not filing the complaint within the prescribed period of limitation by either making averments in the complaint or by moving a separate application` under section 24-A (2) of the Act for condonation of delay in filing the present complaint. In a case titled State Bank of India vs M/S B.S. Agricultural Industries (1) 2009(2) CPC-1, the Hon’ble Apex court had held that it is the duty of the Consumer Forum to take notice of section 24-A and give effect to it . It has further been held by the Hon’ble Apex court that 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 . Since in the present case the machine in question was admittedly purchased on 28-2-2004 and the complaint was filed on 31-12-2008 i.e. much beyond the period of limitation of two years as prescribed under section 24-A of the Act and the complainant has failed to show any sufficient cause for not filing the complaint within prescribed period, therefore, the complaint cannot be entertained by this forum and it deserves to be dismissed .
6 In view of what has been discussed hereinabove , the complaint is dismissed being time barred.
7 Copy of this order be supplied to the parties free of cost as per Rules.
8 File, after due completion be consigned to the Record Room.
Announced
30-5-2009 (Sushil Kukreja ) President
*DKM* ( Alkananda ) ( Lal Singh) Members