Seema Ganapati Kashi vs Silver Line Industries

ABOVE noted revision petitions have been filed by the Petitioner/Complainant against common order dated 15.4.2010, passed in First Appeal Nos. 340 and 344 of 2009 by Consumer Disputes Redressal Commission, Mumbai, Maharashtra State (short, "State Commission"). Brief facts are that Petitioner in the year 1993, had purchased certain shares of Respondent No. 1/Opposite Party No. 1 -Company, she submitted the same to Respondent No. 2/Opposite Party No. 2 for transfer in her name. In 1995, the shares were transferred in the name of the petitioner and share certificates were dispatched to her. It appears that share certificates were lost in transit. Thus, petitioner filed a consumer complaint before the Consumer Grievances Redressal Forum, Central Mumbai (short, "District Forum") alleging deficiency on the part of the respondents.

RESPONDENTS contested the complaint. In their written statement, respondents took the plea, that shares have already been transferred in the name of the petitioner and dispatched to her. It is further stated that respondents will issue duplicate certificate in lieu of the same, provided Petitioner comply with the necessary formalities. It is also stated that petitioner is not a "Consumer" under the Consumer Protection Act, 1986 (short, ''Act'') and as such complaint is not maintainable. District Forum vide order dated 16.5.2008, allowed the complaint and directed the respondents jointly and severally to pay the petitioner Rs. 3 lakh along with interest @ 6% p.a. from 1.4.2000 till the date of payment They were further directed jointly and severally to pay dividend to the petitioner as declared along with 6% interest and also to pay Rs. 10,000 as compensation for mental agony and Rs. 5,000 as cost.

NOT satisfied with the order of the District Forum, Petitioner filed an appeal for enhancement before the State Commission/whereas, respondents filed an appeal for setting aside the order of the District Forum.

THE State Commission vide its impugned order dated 15.4.2010, dismissed the appeal of the petitioner. It, however, allowed the appeal of the respondents and, consequently, dismissed the complaint. Now, petitioner has filed the present revision petition.

WE have gone through the record.

ON 31.3.2014, when petition came up for hearing before this Commission, following order was passed. The matter was passed over.

On the second call also, none is present on behalf of the petitioner.

As per the Registry, there is delay of 98 days in filing of the revision petition.

On 28.11.2013, one Ms. Aparna Mattoo, Advocate appeared on behalf of Ms. Kiran Suri, Advocate and stated that Ms. Kiran Suri, arguing Counsel for the petitioner has been designated as "Senior Counsel" and has asked the petitioner to engage a new Counsel, but no intimation has been received from the petitioner.

Under these circumstances, notice was ordered to be issued to the petitioner for 10.2.2014.

On 10.2.2014, Ms. Aparna Mattoo, Counsel for petitioner stated that she does not wish to engage a new lawyer.

This Commission had also received an application dated 16.1.2014 sent by the petitioner through her G.P. Holder, stating that petitioner does not want to engage a new Counsel and matter may be decided on merits.

Since, application was not signed by the petitioner, we gave one more opportunity to the petitioner to argue her case, if so desires.

Today, there is no appearance on behalf of the petitioner.

We have perused the record.

Order reserved.

The State Commission in its order observed: What is interesting to note is that, that for a transaction which has taken in 1993 and transfer has taken in 1995, the complaint has been filed by the complainant on 30.3.1999 before District Consumer Forum South Mumbai. It was transferred to the Central Mumbai District Forum and thereafter, District Consumer Forum Central Mumbai has decided the complaint. The transaction is admittedly of 1993 and the complaint has been filed in 1999. The only ground for filing the said complaint at such belated stage is stated in the complaint is as follows - -

When and where the cause of action arose - -

Cause of action arose at fort, Mumbai. Two hundred shares of Silverline Industries transferred after three years but even now certificates are not received. Dividend on 200 shares not received for 1995, 1996 and 1997.

Rs. 250 x 3 = Rs. 750 loss.

First date of cause of Action arise in Jan. 1999. This amounts to deficiency in service. Since, then it was held by Supreme Court that the shares holders are not consumers. I did not approach Consumer Forum. Now, it has been clarified in the following cases - -

Chinar Export Ltd. v. Om Prakash Sahani,, (1998) 17 SCL 23 421 DSCDRC:

O.P. Goyal v. Lakh Raj Malik,, II (1998) CP 5 204 (NCDCRC).

Mandeep Singh v. Thapar Agro Mills Ltd.,, I (1998) CPJ 487.

The earlier judgment of the Supreme Court has been clarified and I have come to know the correct position in law only in Feb. 1989 when I purchased yearly Corporate Law Digest and Referencer.

Therefore the limitation starts running only from Feb. 1999.

Thus, limitation has been explained. What we find is that, that after purchase of shares in 1993 immediately on yearly basis the complaint was expected to get dividend. Therefore his case that cause of action arisen in 1999 is not correct. The cause of action has taken place in 1993. Admittedly, the shares were transferred within two years or three years therefore so far as non delivery of the dividend is concerned, cause of action is taken in the year 1995 -1996. The complaint has been filed in 1999. Complainant has admitted that law at then existing that is on the date of cause of action was not allowing him to file the complaint in District Consumer Forum. He states that later on because of above referred cases decided by the Apex Court and Hon''ble National Commission, it has been held that such complaint can be entertained and, therefore, he has filed the complaint. Laying down subsequent law cannot be cause of action and cannot be ground for condonation of delay. Therefore what we find the complaint is hopelessly time barred and the District Consumer Forum erred in passing the order in favour of the original complainant. We may also make reference to the recent judgment of Hon''ble Supreme Court passed in case of Economic Transport Organization v. Charan Spinning Mills (P) Ltd. and Another, : II (2010) SLT 44 : : 2010 CTJ 361 (Supreme Court) (CP), wherein it has been held that if the services are availed for any commercial purpose, the person availing the service will not be a "Consumer". Consequently, a complaint in such case will not be maintainable under the Act. Hence, the following order:

ORDER

A. No. 344/09 is allowed.

A. No. 340/2009 stands dismissed.

Impugned order passed by the District Forum is hereby set aside and in turn the complaint stands dismissed.

Registrar is hereby directed to return the amount to the appellant which has been deposited them at the time of filing of the appeal.

IT is an admitted fact that petitioner had purchased the shares in the year 1993 and complaint before the District Forum was filed only in the year 1999.

THEREFORE , the short question which arise for consideration is as to whether the complaint filed by the petitioner before the District Forum, was within the time or the same is barred by limitation. Section 24A of the Act, deals with this situation which is reproduced as under: 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.

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. v. National Insurance Co. Ltd. and Another, : III (2009) CPJ 75 (SC) : : 2009 CTJ 951 (Supreme Court) (CP), took view of the observations made in case State Bank of India v. B.S. Agricultural Industries, : II (2009) CPJ 29 (SC) : II (2009) SLT 793 : 2009 CTJ 481 (SC) (CP), as under: 12. Recently, in State Bank of India v. B.S. Agricultural Industries, : 2009 CTJ 481 (SC) (CP), 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.

Thus, on the face of it, the complaint filed by the petitioner is barred by limitation and no application for condonation of delay has been filed by the petitioner. The present revision petition is liable to be dismissed on this short ground alone.

EVEN on merits, petitioner has no case since she is not a ''Consumer'' within the meaning of Act. In this context, reference can be made to the judgment passed by Hon''ble Supreme Court in case of Morgan Stanley Mutual Fund v. Kartick Das, : III (1994) CPJ 7 (SC) : (1994) 4 SCC 225.

IN view of the above discussion, we have no hesitation in holding that the order passed by the State Commission is based on sound reasonings. No jurisdictional or legal error has been shown to us, to call for interference in the exercise of powers under Section 21(b) of Act. Since, State Commission has given detailed and reasoned order, it does not call for any interference nor it suffers from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, there is no merit in the present petition and the same is hereby dismissed. No order as to cost.