KRISHAN KAPUR vs HARYANA EMPORIUM

MR. Krishan Kapur, Advocate, complainant purchased two silk sarees from Haryana Emporium, Baba Kharak Singh Marg, New Delhi on 22.1.1990 for Rs. 400/- and Rs. 276/- respectively. He purchased two more silk sarees on 24.1.1990 for Rs. 276/- and Rs. 250/- respectively. The case of the complainant was that on 26.6.1990, when the occassion arose, the sarees were taken out for being worn, they were found to be shorter in length than the length represented, and some threads were missing in weaving. Upon discovering the said defects, the complainant took the sarees to the emporium and showed the same to the official concerned, who in turn, directed the sales girl one Miss Veena Thapar, who received the sarees under her signatures on 26.6.1990. The complainant was informed that the money could be refunded only after receipt of approval from the head office. The opposite party, however, failed to refund the amount and, accordingly, the complainant filed a complaint before District Forum-II on 22.6.1993.

UPON notice, the opposite party filed written version, inter-alia, raising the plea of limitation. The District Forum held that the sarees having been purchased on 22/24.1.1990, the complaint filed after expiry of three years was barred by limitation. The complaint was, accordingly, dismissed. Aggrieved by the order, the complainant has preferred this appeal. Reply has been filed by the respondent. None appeared for the appellant when the appeal came up for hearing. We have, therefore, heard Mr. Rajesh Sharma and Mr. Anil Saxena, Authorised Representatives of the respondent and have carefully gone through the record. The first plea in the appeal is that it has been filed after the period of limitation. The impugned order is dated 11.11.1996. Copy was certified to be true copy by the Reader of the Forum on 16.12.1996 and it was received by the complainant, appellant herein, only on 17.1.1997. The present appeal was filed on 14.2.1997. It is settled law that time for filing appeal starts running from the date of receipt of certified copy by the party concerned. Reference be made to Housing Board Haryana v. Housing Board Colony Welfare Association & Ors., III (1995) CPJ 28 (SC). The appeal is, therefore, held to have been filed within limitation.

The next question is whether the complaint was barred by limitation. Prior to the enactment of Section 24-A in the Consumer Protection Act by amending Act of 1993 w.e.f. 18.6.1993 prescribing limitation of two years, there was no period of limitation prescribed under the Consumer Protection Act. By a string of rulings, however, the National Commission had consistently laid down that not with standing the absence of a provision for limitation stale matters could not be entertained on grounds of public policy. The period taken to decide whether the matter was stale or not was three years. The contention on behalf of the appellant is that limitation for filing complaint is to be reckoned from the date of accrual of cause of action. In this case, the sarees were purchased in January, 1990 and they were kept to be used on an appropriate occasion which arose in June, 1990 when the defects came to light. This is totally consistent with the probabilities of the case. It cannot be doubted that the period of limitation is to be reckoned from the date of accrual of cause of action which occurred on 26.6.1990. We may also point out that even though the normal rule for the application of period of limitation is the date of filing the case and provision regarding limitation applicable on that date is applied but there are well recognised exceptions to the said rule. One such exception is where, the period of limitation applicable on the date of accrual of cause of action is suddenly reduced by a later legislation or amendment. In such a case, the new law of limitation providing longer period cannot revive the dead remedy nor can it suddenly extinguish vested rights by providing shorter period of limitation. This has been so laid down by the Apex Court in New India Assurance Co. v. Smt. Shanti Misra, AIR 1976 SC 237. As the cause of action in the present case had arisen prior to the Amending Act of 1993, the period of limitation applicable was three years and the complaint had been filed within the period of limitation from the date of accrual of cause of action. The finding of the District Forum on the question of limitation is, therefore, set aside.

WE have two options. One, to remand the case to the District Forum for decision on merits and two, to decide the same according to law. The scope of controversy in this case is a limited one and the complainant has been pursuing this case since June, 1993 when he filed the complaint before the District Forum. WE, therefore, do not propose to remand the case but to dispose it of on merits as well. It is not disputed that in June, 1990 the sarees were returned and the same were received under signatures of the receiving person. The only question is whether the respondent can be allowed to retain the sarees and refuse to return the money. The fact that the sarees were received back when the defects were shown goes long way to show that the sarees were really defective. A plea was raised by the respondent that the counter dealing in sarees had been leased out to an independent person and the respondent was not liable for refunding the amount. The lease, if any, must have been given on certain agreed terms and conditions. The respondent may, if so advised, have its remedy for recovering the amount from the lessee from the point of view of the consumer, however, no such internal arrangements can be put forward and that the respondent is liable to refund the amount. It has been observed by the District Forum that the sarees had been worn by the ladies concerned and it would be very hard for the opposite party if the sarees were to be returned after use. The observation appears to be based on a certain amount of misunderstanding. According to the complainant, the sarees were not worn or put to use until June, 1990 and when the same were opened in order to wear, the defects came to light. Immediately, the sarees were taken back to the Emporium and returned. In other words, it is not a case where the complainant-appellant, may have used the sarees from date of purchase till return. If it were so, we have no doubt that the opposite party would not have agreed to receive back the sarees. For the foregoing reasons, the appeal is allowed and the respondent directed to refund Rs. 1,200/- (rounded off) alongwith 12% interest thereon from 1.7.1990 till date of payment. In view of the direction about payment of interest there will be no order as to costs. A copy of the order be conveyed to the parties and also sent to District Forum-II. Appeal allowed.