RAYMON ROQUE TIXEIRA vs M/S. RAHUL ENTERPRISES & ANR

Appellant/complainant filed a consumer complaint against Respondents/Opposite Parties before State Consumer Disputes Redressal Commission, Maharashtra, Mumbai (for short, ''State Commission'') on 15 April, 2013. Later on, in October, 2013 an application seeking th condonation of delay of Three Years was filed.

Vide impugned order dated 27.3.2014, State Commission rejected the application for condonation of delay and consequently dismissed the complaint.

Now appellant has filed this appeal against the impugned order.

We have heard ld. Counsel for the appellant and gone through the record.

During course of arguments, it has been admitted by ld. counsel for the appellant, that application seeking condonation of delay of three years before and the State Commission was not filed alongwith the complaint, but filed later on.

It would be pertinent to point out that alongwith present appeal also, application seeking condonation of delay has been filed. However, in this application, period of delay has not been mentioned. In the application, it has been stated that appellant received the copy of the order passed by State Commission on 5.5.2014. There were summer vacation for courts in Maharashtra. The appellant was having financial problems and his counsel was not keeping well. As such, delay should be condoned. As per office report, there is delay of 33 days in filing this appeal. The grounds on which condonation of delay has been sought as quoted above, does not amount to "sufficient cause" at all. Therefore, we do not find any cogent reason to condone the delay of 33 days. Application for condonation of delay stand dismissed.

It is appellant''s case that in the year 1990, respondent no.1 approached him to be a prospective builder to develop the ancestral property of the appellant. Thereafter another agreement was made in the year 1992.

There is nothing on record to show as to on which date appellant handed over his ancestral property to respondent no.1 and when the same was to be handed over to appellant after development. The consumer complaint was filed in year 2013. Thus, on the face of it, complaint is hopelessly barred by limitation.

Section 24-A of the Consumer Protection Act, 1986, deals with such situation and same is reproduced 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 above provision is clearly peremptory in nature requiring the Consumer Fora to see at the time of entertaining the complaint, whether it has been filed within the stipulated period of two years from the date of cause of action.

Hon''ble Apex Court in case of Kandimalla Raghavaiah & Co. versus National Insurance Co. Ltd. and another, 2009 CTJ 951 (Supreme Court) (CP) took view of the observations made in case State Bank of India vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191 , as under:- "12. Recently, in State Bank of India Vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191 , this Court, while dealing with the same provision, has held;

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."

In para No.13, it has been held by the Hon''ble Supreme Court that;

"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."

Now, coming to the impugned order, the same read as under; "Heard on delay Condonation application. This is an application for condonation of delay of three years in filing the complaint in respect of agreements of the year 1990 and 1992. Complainant had filed complaint without an application for condonation of delay and thereafter he filed this application for Condonation of delay. The application for condonation of delay shows that there was some meeting on 17.05.2007 in which the complainant was promised to give "consideration in lieu of the two flats." This according to the complainant''s counsel is novation. There is obviously no mention in the application as to what prevented the complainant from approaching the Commission even after 17.05.2007 within a period of two years. Complaint itself is filed on 15 April, 2013 and the application for th Condonation of delay is filed in October, 2013. There is absolutely no case for Condonation of delay . Hence, application is rejected and consequently the complaint is dismissed."

In application for condonation of delay filed before the State Commission, appellant has nowhere stated the grounds on which he sought Condonation of three years delay. Application is absolutely silent on "sufficient cause" for long delay of three years. Therefore, we hold that State Commission rightly declined to condone the long delay of three years in filing of the complaint before it. Hence, three is no illegality or ambiguity in the impugned order passed. There being no merit in the present appeal, the same stand dismissed with cost of Rs.10,000/- (Rupees Ten thousand only).

Appellant is directed to deposit the above cost by way of demand draft in the name of "Consumer Legal Aid Account" within four weeks from today. In case, appellant fails to deposit the cost within the prescribed period, then he shall be liable to pay interest @ 9% p.a. till realization.

List on 22.5.2015 for compliance.