Prakash Chand Singhal v. M/S D.C.M. Ltd

order was modified and the defendant was held liable to pay interest @15%) per annum. On account of the fact that even the National Consumer disputes Rederessal Commission did not award compound interestthe plaintifffiled a Special T.eave Petition which was dismissed by the Apex Court.

¶10'fhe sum and substance of the argument of learned counsel for the plaintilT is that firstly under Section 3 of Consumer Protection Act the remedy availableto the plaintiffunder the said Act was in addition to any other remedy availableto the plaintiffas per law. There is no quarrel to this proposition,hov/ever, this submissionof counsel for the plaintiffis no help to the plaintiff as the argument is diametricallyopposite to the second argument,which is soughtto be raised by learnedcounsel for the plaintiff,that the plaintiffwas pursuinghis complaintin a forum, which lacks jurisdictionand, thus, the presentapplicationbe allowed, fn case the cs(05) 262/?mo n submission of learned eounscl for the plaintiff is to be allowed, it would only show that in additionto filing a civil suit he could have also filed a complaint under Consumer Protection Act in which case the plaintiff should have filed a civil suit simultaneously.

¶11The second submission of learned counsel for the plaintiff is that the remedy soughtunderthe ConsumerProtectionAct was that the defendant was cheating the public at large by taking deposits and not making the paymentsin accordancewith law. The followingprayerwas made before the Commission: "It is, therefore,most respectfullyprayedthat this Honorablecourt V look into the matter sympatheticallyand issue necessaryorders to respondent company to make immediate payment of Rupees 5,39,573/- along with interest @15% compounded on monthly interval till the date of release of cheque and damage worth Rupees 50,000/- for mental tension, harassment, hardship which the complainantsuffereddue to delayednon-paymentofamount."

¶12A mere readingof the payerwould show that this submissionis factually incorrect as the relief sought was payment of Rs.5,39,573 along with compound interest @15% and damages. The same prayer was pressed before the National Commission and also before the Apex Court. First para of the judgment rendered by the National Consumer Dispute Redressal Commission on 18.9.2009 reads as under: "Order of the Delhi State Consumer Disputes Redressal Commission(in short 'the State Commission)dated 14.2.06passed in the complaint case No.252/98 as amended/correctedby order dated 2.06.06 is in question before us in this appeal. By the impugned order, the State Commission has partly allowed the complaint filed by the appellant herein with a direction to the respondent to pay the principal amount of Rs.1,83,243/- with compensation Rs.50,000/-, in lieu of interest and sum of Rs.10,000/- as cost of proceedings by observing "if we award interest compensationshall be much higher but in view of the financial condition of the OP we only award reasonable lump sum CS(OS)262/2010 Page 7 of10 V compensation,h is this observationand dispensationthat has led the appellantto approach this Commission.It is not disputedthat after passing the impugned order the respondent company has accepted the order and compliedwith the directionsgiven in the order."

¶13Since the National Commissiondid not award 15% compoundinterestthe plaintifffiled a SpecialLeave Petitionwhich was dismissedby the Apex Court. In the case of Consolidated Ennineenns Enterprises (supra) the Apex Court has laid down five broad conditions,which must be satisfied before Section 14 can be pressed into service. The short question,thus, comes for consideration before this Court is whether the plaintiff was pursuingaremedyin a iorum wherehe couldnot succeeddue to defectof jurisdiction.

¶14A careful perusal of the order of the State Commission, National Commissionand the SupremeCourt, counsel for the plaintiffis satisfied that he could not succeed before the State Commission, National Commissionand the Apex Court on the ground of lack ofjurisdiction.In fact in the State Commission,the complaintwas allowedand the plaintiff also succeeded before the National Commission. There is no observation by the State Commissionor by the National Commissionas compound interestcould not be grantedon accountof lack ofjurisdiction.In fact the National Commission has awarded 15% interest but not compound interest.Once the plaintiffhas exhaustedthe remediesavailableto him the plaintiffis not entitled to have a second round of litigationby taking recourse to Section 14 of the Limitation Act. The aim and object of Section 14 is to afford protection to a litigant when he institutes a proceedingand does not succeedby'reasonsofsometechnicaldefector in case the matter cannot be decided on merits and is dismissed.

¶15In the case of Deena (dead) through LRs. Vs. Bharat Singh (dead) CS(05)262/2010 8 Of 10 through L.Rs. and Ors., reportedat AIR 2002 SC 2768, it was held that Scction 14 of Limitation Act would have no application where the matter has been adjudicatedon merits and not becausethe Court was unable to entertain it. Paragraph 16 reads as under: "16. The other expressionsrelevantto be construedin this regard are 'defectof jurisdiction'and "or other cause of a like nature'.The expression "defect of jurisdiction'on a plain reading means the Courtmust lack jurisdictionto entertainthe suit or proceeding.The circumstanccs in which or the grounds on which, lack of jurisdictionof the Court may be found are not enumeratedin the ' Section. It is to be kept in mind that there is a distinctionbetween grantingpermissionto the plaintiffto withdrawthe suit with leave to file a fresh suit for the same relief under Order XXIII Rule 1 and exclusionof the period of pendencyof that suit for the purpose of computationof limitationin the subsequentsuitunderSection14 of the limitation Act. The words "or other cause of a like nature" are to be construed ejusdem generis with the words 'defect of jurisdiction',that is to say, the defectmustbe of such a characteras to make it impossible for the court to entertain the suit or applicationand to decide it on merits. ObviouslyScction 14 will have no application in a case where the suit is dismissed after adjudicationon its merits and not becausethe Court was unable to entertain it."

¶16In this case, the matter before the State Commission and National Commission has been decided on merits and not on account of lack of jurisdiction.It is not a ease where the complaint of the plaintiffwas not entertained by the State Commissionor the National Commissionor by the Apex Courton accountofwantofjurisdiction.Thus, the provisionsof Section 14 of the Limitation Act cannot be attracted. The present suit is patently barred beyond the period of limitation and the same is accordingly dismissed. CS(OS) 262/2010 & LA. 1862/2010

¶17In view of the fact that the application for condonation of delay already CS(OS)262/2010 S-V MAY ssn fA.No.l 860/20101stands dismissed, the present suit |CS(OS) 262/20101 and the applieation|I.A. 1862/2010]stand dismissed,leavingthe parties to bear their own costs. G.S.SISTANI, J-28, 2012 C5(OS) 262/2010 Page 10 of iO

$'• IN Tim men court of delhi at new delhj f CS(OS) 262/2010 % Judgmemt dated 28.05.2012 PRAKASn C1 lAND SINGI lAJ, Plaintiff 'iVfough; Mr.Atul Bandhu, Advocatc versus M/S)).C.M LTD Defendant Through; Mr.Kirat Nagra, Advocatc CORAM: MR. JUSTICE G.S.SISTAM •vx.S.SISTANl, J (ORAL) 1A;Nos. 1860/2010 1. I^lainiiff has filed the present suit for recovery of Rs.30.0 lacs with pcndente lite and fuLure interest against the defendant. Along with the f)rcscnt suit, the plaintiff has filed the present application ujider Section 14 of the Limitation Act. As per the plaint in the year 1997 aJter retirement the plaintiff entered into a agreement thereby subscribing to a scheme (Scheme-B) of the defendant which carried cumulative interest @ 15% compounding monthly. In addition the defendant also used to give incentive @ 5% per annum in cash/ cheque while accepting fresh/renewal of deposits. Since defendant did not return the amounts deposited, nor paid the interest as per the scheme, the plaintiff was forced to approach the State Consumer forum and the piaintiff filed a complaint on 04.09. i998. 'fhis complaint was allowed by an order dated 14.02.2006 and UiC plaindff was awarded the principal amount plus lump-sum cs(os) :/6?./2070 ' I'agc 10 f 1G compensationamounting to Rs.50,000/- and Rs.10,000/- was awarded towards costs. The plaintiff being aggrieved by the order of the State Commission, as according to the plaintiff, the State Commission did not award interest as per the schcme and agreement entered into between,the parties approachedthe National Commission. The National Consumer forum allowed the appeal of the plaintiff and held that the State Commission could not have awarded lump sum amount of Rs.50,000/- as interest when parties had agreed that interest would be paid by the defendant @ 15%. The National commission awarded 15% simple interestto the plaintiff The plaintiffwas still unhappywiththe findingof the National Commission, as according to him he was entitled to 15% compound interest and not simple interest. The plaintiff thereafter approachedthe Apex Court by filing Special Leave Petition, which was dismissed on 18.03.2009. Tn the meanwhile plaintiff also filed an applicationseekingmodificationof the order of the NationalCommission, which was dismissed on 17.04.2009. It is only thereafter the plaintiff has filed the present suit in the High Court with an applicationunder Section 14 of the Limitation Act. The prayer in the present suit is as under: "A. Decree of recovery of Rs.30,00,000/- only (Rs. Thirty Lacs in favour of the plaintiff and against the defendant under the agreement of FDs thereby directing the defendant to pay the money in terms of the agreement as per the contracted rate of interest with incentive i.e. cumulative interest @ 15.5%) compoundable monthly and incentive @5% p.a. in cash/ cheque for the entire period i.e. from the due date to the date of actual payment. B. Lurther a decree for intermediary profits (mesne profits) @ 15%) as the defendants has used the money of the plaintiff for all this period; C. lairther decrcc of recovery of pendente lite interest @15%) p.a. on the total amounL recoverable; and also future interest @ CS(OS)262/2010 ] 5% p.a. and costs of petition." 2. Mr.lBandliu, counsel for the plaintiff submits that firstly the plaintiff fded a complaint before the State Commission, as the remedy available to him under the Consumer Protection Act, 1986 is not an alternate remedy and it is a remedy provided in addition to a remedy not in derogation to any of the other laws in force. Counsel has drawn attention of the Court to Section 3 of the Consumer Protection Act, which reads as under: "3. Act not in derogation of any other law.- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force." 3. Counsel for the plaintiff also submits that in any case neither the State Commission nor the National Commission could have a