RAM SINGH YADAV vs BRIJESH SACHAN & 2 ORS.

The petitioner being aggrieved of the order of the State Commission Uttar Pradesh dated 21.01.2016 has preferred this revision petition.

Briefly stated, the facts relevant for the disposal of the revision petition are that respondent no.1 filed consumer complainant against petitioner opposite party no.1 and Mahindra & Mahindra Financial Services Limited ( OP No.2 & 3) alleging that 19.11.2004 he purchased tractor no. RCE-453 from opposite party no.1 after getting it financed to the tune of Rs.2,50,000/- from opposite party nos. 2 & 3 vide loan agreement dated 27.11.2004. It is the case of the complainant respondent no.1 that tractor was defective and was not working according to its capacity. Therefore, the complainant returned back the tractor at Kanpur office of OP No.2 & 3 on 24.10.2005. Thereafter, the complainant approached the respective opposite parties for return of his money as also no due certificate against the loan account but opposite parties failed to oblige. The complainant has also alleged that in the third week of December 2011, the complainant received copy of Arbitration Award dated 06.12.2011 purported to have been passed ex parte by the Sole Arbitrator appointed by OP Nos. 2 & 3. The Arbitrator vide aforesaid award held that complainant is liable to pay a sum of Rs.1,71,436/- and Rs.222831/- to the financer towards principal and interest. Besides Rs.10,000/- was awarded to OP Nos. 2 & 3 towards the cost of Arbitral proceedings. According to the complainant, arbitration award has been obtained by OP No. 2 & 3 by practicing fraud and collusion. On the aforesaid allegations, the complainant has filed the consumer complaint seeking following reliefs: "Wherefore, it is most respectfully prayed that this Hon''ble Forum may direct the OP No.1 to pay back Rs.1,02,475/- to the complainant along with interest @ 18% per annum. It is further prayed that this Hon''ble Court may direct the Opposite Party No. 2 & 3 to pay Rs.3,94,267/- along with interest @ 18% per annum as awarded by the arbitrator to the complainant and issue No Dues Certificate to the complainant."

The opposite party no.1 on being served with the notice filed a short reply raising preliminary objection as to maintainability of the complaint. It was pleaded that consumer complaint was barred by limitation. It was pleaded that consumer complaint against the arbitration award is not maintainable.

The District Forum vide its order dated 01.02.2014 rejected the preliminary objection raised by OP No.1 and directed the opposite parties to file written statement on 01.04.2014.

Being aggrieved of the order of the District Forum, the petitioner opposite party no.1 approached the State Commission. The State Commission vide impugned order upheld the order of the District Forum and dismissed the revision petition filed by opposite party no.1

Learned Shri B K Upadhyay, Advocate for the petitioner has contended that orders of Fora below have been passed in utter disregard of the facts as also Section 24-A of the Consumer Protection Act, 1986 ( in short, the Act) which provides for limitation of two years for filing of consumer complaint from the date on which cause of action arose. Expanding on the argument, learned counsel has submitted that perusal of para 3 of the complaint would show that as per the complainant the subject tractor was defective and not working as per its capacity. Therefore, the complainant allegedly returned the tractor at the office of OP Nos. 2 & 3 on 24.10.2005. It is contended that aforesaid allegations it is clear that cause of action for raising the dispute regarding supply of defective tractor arose on 24.10.2005. Therefore, in view of Section 24-A of the Act, in order to be within limitation, the complainant was required to file consumer complaint against OP no.1 latest by 24.10.2007 whereas admittedly the consumer complaint was filed much later on 12.01.2012. No explanation of delay in filing of consumer complaint against OP no.1 has been given. Therefore, the Fora below ought to have rejected the complaint against OP no.1 as barred by limitation.

Learned counsel for respondent no.1 on the contrary has argued that ex parte arbitration award was passed against the opposite parties which was challenged by the opposite parties and the said award was set aside by consent order by High Court of Bombay vide order dated 06.12.2012. Therefore, fresh cause of action arose on 06.12.2012 and if the period of limitation is computed from said date, the complaint against OP no.1 is within limitation.

We have considered the rival contentions and perused the record. Section 24-A of the Act deals with period of limitation for filing the consumer complaint and it reads as under: 24A . Limitation period. -

(l) 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 (l), 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."

On reading of the above, it is clear that period of limitation for filing consumer complaint before the District Forum is two years from the date on which cause of action arose. The delay, however, can be condoned provided some reasonable explanation is given by the complainant.

As regards OP No.1, the grievance of the complainant is that he had supplied a defective tractor. In para 3 of the complaint, complainant has alleged thus: "That the tractor which was purchased by the complainant was not working according to its capacity as such it was returned back to Kanpur office of the Op No.2 & 3 on 24.10.2005."

On reading of the above, it is clear that at-least prior to 24.10.2005, the complainant had come to know about the alleged deficiency in the working of the tractor and for that reason he took the tractor to the office of Op Nos. 2 & 3 and left it there. Thus, in our view, cause of action for initiating action on the plea of manufacturing defect against OP No.1 arose on 24.10.2005. Admittedly, the consumer complaint has been filed after the expiry of two years from the date on which cause of action arose on 12.01.2012 i.e. almost seven years after cause of action arose. Thus, consumer complaint obviously is barred by limitation. The complainant has not been able to give cogent explanation for not initiating action against OP no.1 within the period of limitation. Therefore, in our view, the Fora below ought to have dismissed the complaint as barred by limitation.

In view of the discussion above, impugned orders of the Fora below cannot be sustained. We accordingly allow the revision petition, set aside the orders of the Fora below and dismiss the complaint qua petitioner opposite party no.1 as barred by limitation. As regards OP no. 2 & 3 are concerned, the District Forum shall decide the complaint on merits in accordance with law.