H C L Ltd vs BUREAU OF INDIAN STANDARDS

FIVE Finessee 5210 Zoom Photocopiers with ancillaries were purchased by Sh. S.C. Sen, Director, Bureau of Indian Standards, the complainant in this case, for a consideration of Rs. 1,12,000/ - each from HCL Ltd., the OP. The complainant further purchased 3 more photocopiers at a cost of Rs. 1,14,000/ - each from OP during February, 1995 to 26.09.1995. One of those copiers was under ''Buy -Back'' Scheme against an old copier and a discount of Rs. 20,000/ - was given by the OP to the complainant in the purchase value and Rs. 28,000 also towards their value was retained by the complainant because of the mal -functioning of the three copiers, purchased by the complainant.

IT is alleged that all the above said copiers were mal -functioning and were having frequent break -downs. Again, the number of copies produced by these copiers were less than the expected and the rated life of the copiers is 10 lakh copies whereas these copiers have become defunct within two lakh copies. Despite efforts, the OP could not remove the defects. It also transpired that those were not repairable.

THE defence set up by the OP was that the complaint was filed by the complainant in the year 2003. Consequently, it was barred by time. It was also contended that the complainant was using the copiers and had earned profits and, therefore, the complaint was not maintainable. It was also alleged that no trained person was deputed to operate the machines, despite several suggestions made by the OP to the complainant. Moreover, all these copiers did not suffer from any major or inherent defect. The District Forum dismissed the complaint vide order dated 09.05.2006. However, the State Commission partly allowed the complaint in the appeal filed before it. It was directed that "since the machines were purchased way back in 1994 -95, and much water had flown and the machines had been put to use may be grudgingly and reluctantly, we deem that lump sum compensation of Rs. 1,00,000/ - less Rs. 22,800/ - yet to be paid by the appellant to the respondent, shall meet the ends of justice".

REVISION Petition bearing No.1053 of 2009 was filed before the this Commission by OP. This Commission remanded the case back to the State Commission. The State Commission has again decided the case vide its order dated 13.11.2013, allowed the appeal and directed the respondent to refund ? 8,82,000/ - being the price of the machines supplied to the appellant, minus Rs. 22,800/ - which was not paid by the appellant, Rs. 10,000/ - was assessed to be paid by the respondent.

WE have heard the counsel for the parties and perused the written synopses. The complainant contends that a complaint was made on 15/26 July, 1994, was sent to the OP. The Engineer came from the Appellant Company and did the service on 02.09.1994. However, despite this service, the machines were not working properly. Thereafter, a written complaint was again sent by the complainant to the OP on 07.12.1994. In the meantime, the petitioner also purchased the above said three copiers. The Engineers of the Appellant Company vide Customer Call Cum Service Slip, dated 14.06.1996 recommended to get the machines replaced vide recommendation placed as Annexure 3 & 4 (pg. 107 of paper -book). The said endorsement runs as follows : - "To customer : - It is recommended to kindly get the m/c replaced except for Buy Back Scheme of Toshiba Seria. If acceptable or for further information, kindly contact HCL SCO 18 -19, Sec -90, Chandigarh".

ANOTHER complaint was filed before the OP on 02.11.1996, but the machine was not replaced. Later, complaints were filed again, on 16.12.1996, 22.08.1997, 08.01.1998. These complaints are produced against Anxs. R -5, R -6, R -7 and R -8. Again complaints were filed on 15.02.1999 and 24.02.1999. Copies of the same were produced as Exs. R -9 and R -10. Thereafter, the complaint was filed before the District Forum.

DURING the arguments, we tried our best to get the matter amicably settled between the parties, as is evident from our order dated 18.12.2014. It must be borne in mind that the cause of action has arisen in this case in the year 1994. The written application was filed on 07.12.1994. It is surprising to note that when the first five copiers were not working properly and were suffering from defects, despite that fact, three more copiers were purchased from the same Company, i.e., the OP. It is difficult to fathom, why, the second order of purchase of the three copiers was placed when it had come to the knowledge of the complainant that the first five copiers were not working properly. This fact casts a film of doubt over the bonafides of the officers of the complainant. In case the machines had the manufacturing defect and were giving trouble since the very beginning, there was no question of purchasing of three additional machines of the same brand from the same vendor. The repeat order is always given when one is satisfied that the previous machines are working satisfactorily.

HOWEVER , in this case, the question of limitation is of utmost importance. All the defects cropped up during the period of 1994 -1999. The cause of action had arisen in the year 1994 itself. The complaint was filed in the year 2003. The filing of the complaint was hopelessly delayed by time. It is surprising to note that the State Commission did not discuss this point at all. The delay was never explained. No application for condonation of delay has never been moved. Section 24 -A of the C.P.Act, 1986, runs as follows : - "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 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".

IN SBI Vs. M/s. B.S. Agricultural Industries, 2009 (SC -2) - GJX 0414 SC, the Hon''ble Apex court, in paras 8, and 13, has held, as under : - "8. It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ''shall not admit a complaint'' occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. 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.

"The term "cause of action", is neither defined in the Act nor in the Code of Civil Procedure, 1908, but is of wide import. It has different meanings in different contexts, that is, when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described as "bundle of facts", which, if proved or admitted, entitle the plaintiff to the relief prayed for. Pithily stated, "cause of action", means the cause of action for which the suit is brought. "Cause of action" is cause of action which gives occasion for and forms the foundation of the suit. In the context of limitation, with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out".

IT must be mentioned here that correspondence, reminders, legal notice, etc., do not extend the time. In the case of Kandimalla Raghavaiah and Co. Vs. National Insurance Co.Ltd., and Anr., 2009 CTJ 951 , the Hon''ble Apex Court was pleased to hold, as under : - "By no stretch of imagination, it can be said that Insurance Company''s reply, dated 21.03.1996 to the legal notice dated 04.01.1996, declining to issue the forms for preferring a claim after a lapse of more than four years of the date of fire, resulted in extending the period of limitation for the purpose of Section 24 -A of the Act. We have no hesitation in holding that the complaint filed on 24.10.1997 and that too, without an application for condonation of delay was manifestly barred by limitation and the Commission was justified in dismissing it on that short ground".

IN a recent case reported in Dolphin Offshore Enterprises (I) Ltd. Vs. United India Insurance Co.Ltd., the Hon''ble Apex Court, in Special Leave to Appeal (Civil) No. 9307 of 2013 filed by petitioner, Dolhpin Offshore Enterprises (I) Ltd., decided on 08.03.2013, was pleased to hold : - "We have heard learned counsel for the petitioner and perused the record. In our opinion, the reasons assigned by the State Commission and the National Commission, for holding that the complaint was barred by time, are correct. It is not in dispute that the claim made by the petitioner was repudiated by the respondent, vide communication dated 30.10.2002, and the complaint was filed on 25.05.2006, i.e., after three years and five months of repudiation of the claim. Therefore, there is no escape from the conclusion that the complaint was barred by time. This view finds support from the judgments of this court in HUDA Vs. B.K. Sood, 2006 1 SCC 164, SBI Vs. B.S.Agricultural Industries (I), 2009 5 SCC 121, Kandimalla Raghavaiah Vs. National Insurance Co. Ltd., 2009 7 SCC 768and V.N.Shrikhande (Dr.) Vs. Anita Sena Fernandes, 2011 1 SCC 53".

WE , therefore, hold that the case filed by the complainant is barred by time. Moreover, the petitioner had used these machines for a period of about 8 -9 years. The machines were utilized and admittedly copies to some extent, from these machines were taken out. The order passed by the State Commission is absolutely incorrect. They have not considered this as well and granted the entire amount of the machines after a usage of about 8 -9 years.

THE case is hopelessly barred by time. Consequently, we set aside the order of the State Commission and restore that of the District Forum. The revision petition is allowed.