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Judgment
-M/s. Jindal Oil and Ginning Factory, Bathinda i. e. the appellants are a partnership firm and Ashok Kumar Jindal is one of its partners. The respondents had advertised the allotment of industrial plots in the Industrial Growth Centre at Bathinda on lease basis for 99 years. The advertisement was published in the Daily Tribune. The last date for receipt of applications was 28. 11. 1994. The appellants also deposited the earnest money amounting to Rs. 75,000 with the respondents vide bank draft dated 26. 11. 1994. Although the respondents were to allot the plots within a period of six months from the date of advertisement but nothing happened for a period of three years. .
IT was further pleaded that on 29. 9. 1997 the appellants requested the respondents to refund the earnest money of Rs. 75,000 along with interest. A letter was sent through U. P. C. However, the amount was not refunded by the respondents. Rather they allotted the plot to the appellants vide allotment letter dated 29. 7. 1998 and demanded an amount of Rs. 2,25,000. Show Cause Notice was also issued to the appellants on 28. 9. 1998 for revoking the allotment and for forfeiting the earnest money already deposited by the appellants. Thereafter the respondents arbitrarily forfeited the amount of earnest money vide letter dated 13. 8. 1999. The said letter was illegal. Hence the appellants filed the complaint in the learned District Consumer Disputes Redressal Forum, Bathinda (in short the ''district Forum'') for seeking the refund of Rs. 75,000 with interest, compensation and costs. The respondents filed the written reply. It was admitted that they had advertised the allotment of industrial plots and the appellants had sent the earnest money of Rs. 75,000 to the respondents vide bank draft dated 26. 11. 1994. The allotment was to be made after observing the due procedure and the delays were bound to occur. The letter dated 29. 9. 1997 allegedly sent by the appellants was never received by the respondents. Rather the plot was allotted to the appellants vide letter dated 29. 7. 1998. The appellants failed to deposit 30% down payment which was payable by him and he applied for the refund to save the forfeiture of 10% of the earnest money. The appellants neither refused to accept the plot nor deposited the money inspite of notice being issued to the appellants. Show Cause Notice was issued to the appellants on 28. 9. 1998. It was not denied that the forfeiture was made vide letter dated 13. 8. 1999. Hence dismissal of the complaint was prayed.
The appellants produced the affidavit of Ashok Kumar Jindal as Ex. C-1 and also proved documents Exs. C-2 to C-7.
ON the other hand, the respondents proved the affidavit of Ram Chander, Sr. Asstt. PSIEC as Ex. R-1 and also produced documents Exs. R-2 to R-12. After considering the pleadings of the parties and affidavits/documents placed on record by them, the learned District Forum dismissed the complaint vide impugned order dated 18. 10. 2002 on the plea that the complaint was barred by limitation.
HENCE the appeal. The submission of the learned Counsel for the respondents was that the complaint has been dismissed as barred by limitation. Therefore, the State Commission can only determine as to whether the order of the learned District Forum was justified on the limitation point or not. It cannot go into the merits of the case. The further submission of the learned Counsel for the respondents was that the appellants had applied for the allotment of Industrial Plot and therefore it was a commercial transaction and the complaint under the Consumer Protection Act was not maintainable. It was further submitted that the letter of 29. 9. 1997 allegedly sent by the appellants was never received by the respondents.
RECORD has been perused. Submissions have been considered.
THERE is no merit in the submission of the learned Counsel for the respondents that the merits of the case cannot be gone into by this Commission. It may be that the merits of the case were not considered by the learned District Forum and the complaint was dismissed on the ground of limitation only but it would not be legally justified to remand the matter to the learned District Forum after 6 years and to direct the learned District Forum to decide the complaint on merits. The proceedings under the Consumer Protection Act are summary in nature and this Court being the Appellate Court can decide the appeal on merits as well. So far as the limitation is concerned, the respondents had cancelled the allotment vide letter dated 13. 8. 1999 (Ex. R-10/c-5) and the earnest money was forfeited vide letter dated 13. 8. 1999. This complaint was filed by the appellants in the learned District Forum on 18. 9. 2001 and as per Section 24-A of the Act, 1986 it should have been filed within 2 years when the cause of action arose. It 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 complaint 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 letter dated 13. 8. 1999 could have taken some time in the transit before reaching the destination. If the period of transit is taken to be one week, it means, therefore, that the limitation was to be counted from 20. 8. 1999. It means, therefore, that the complaint could be filed by the appellants upto 19. 8. 2001. It was, however, filed on 18. 9. 2001. Therefore, there is delay of only 29 days in filing the complaint. The perusal of the complaint filed by the appellants reveals that it was drafted somewhere in June, 2001 but was filed in September, 2001. It appears to be the fault of the Counsel for the appellants for which the party cannot be made to suffer.
THE settled law is that procedure is the hand made of justice and the ends of justice are supreme. The delay of 29 days in filing the complaint deserves to be condoned. Reliance can be placed on the judgment of the Hon''ble Supreme Court reported as Haryana Urban Development Authority v. Raj Kumar Rathi, IV (2004) CPJ 11 (SC)=v (2004) SLT 820. Therefore, the learned District Forum was not justified in taking hyper-technical view about the delay in filing the complaint and dismissed the complaint on the grounds of limitation alone. The complaint could be filed within a period of two years under Section 24a of the Consumer Protection Act. The doors were shut for the appellants on technical ground instead of deciding the complaint on merits. The Hon''ble Supreme Court has repeatedly asserted that it would serve the ends of justice if the controversy between the parties is determined on merits instead of technical grounds. Therefore, it is held that the delay of 29 days in filing the complaint is liable to be condoned.
IT is not disputed that the appellants had applied for the allotment of an Industrial Plot and earnest money of Rs. 75,000 was remitted by them to the respondents vide letter dated 26. 11. 1994. It was not denied by the. respondents in the corresponding paragraph of written reply that the allotment was to be made within a period of six months from the date of advertisement. Rather it was pleaded that because the regular procedure was to be followed, therefore, the delays were bound to occur. It is also not disputed by the appellants that nothing happened for 3 years from the date of advertisement. The appellants had pleaded that they had sent letter dated 29. 9. 1997 to the respondents requesting for the refund of the earnest money. The receipt of this letter has been specifically denied by the respondents. However, the appellants have proved a photocopy of the letter dated 29. 9. 1997 as Ex. C-6. It was sent Under Postal Certificate to the respondents and a photocopy of the U. P. C. duly stamped by the Post Office is proved as Ex. C-7. It is, therefore, clearly proved that the appellants had sent the letter dated 29. 9. 1997 to the respondents in which they had requested that the. earnest money be refunded to the appellants with interest without delay. Mere denial by the respondents of having received this letter is not sufficient when the appellants have led conclusive evidence that they had despatched this letter to the respondents.
IT is not disputed that till 29. 9. 1997 when this letter was sent by the appellants to respondents, letter of allotment was not issued by the respondents. It was not even considered. The appellants have alleged that the letter of allotment was issued by the respondents on 29. 7. 1998 i. e. about 10 months after the letter of withdrawal of money was sent by the appellants to the respondents. Once the appellants had asked for the withdrawal of earnest money, he was not one of the candidates to be considered for allotment of plots. Therefore, the letter of allotment sent by the respondents to the appellants is unwarranted. Since the letter of allotment falls down, all subsequent proceedings taken by the respondents including the forfeiture of the earnest money cannot be sustained. Therefore, the cancellation letter dated 13. 8. 1999 (Ex. R-10) is liable to be set aside.
SO far as the submission of the learned Counsel for the respondents that it was a commercial transaction and the complaint was not maintainable under the Act, 1986 is concerned, it has no merits. The appellants had applied for Industrial Plot. Obviously they had done so for earning their livelihood and they had remitted the earnest money to the respondents. The respondents had failed to consider the allotment within a specified period of six months. They did not do it even for 3 years. Harassed by the delay caused by the respondents, the appellants had asked for refund of the earnest money on 29. 9. 1997 much before the letter of allotment was issued by the respondents to the appellants. Since the appellants had remitted the earnest money and had asked for its refund, therefore, clearly the appellants were the consumers qua the respondents. To that extent, it was not a commercial transaction. In these circumstances, this appeal is accepted. The impugned order dated 18. 10. 2002 is set aside and the respondents are directed to refund the amount of Rs. 75,000 to the appellants within a period of 3 months after the receipt of copy of this order. If the respondents fail to do so, they would be liable to pay interest @ 9% p. a. from the date of filing of complaint i. e. from 18. 9. 2001 on this amount till the date of payment.
The appeal could not be decided within the statutory period because of heavy pendency and non-availability of the requisite Benches and infrastructure in the State Commission, for which the State Government has already been requested. Appeal allowed.