State Consumer Disputes Redressal Commission
Ajay K Khanderia vs Hdfc Bank Ltd on 18 May, 2023
Details DD MM YY
Date of Judgment 18 05 2023
Date of filing 23 06 2022
Duration 25 10 -
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD.
Court No. 1
Appeal No.418/2022
1. Ajay Kanubhai Khanderia
Residing at P-, Divya Apartments,
Pratapkunj Society, Vasna,
Ahmedabad-380007. ...Appellant
Vs
1. HDFC Bank Ltd.
Abhishilp Complex,
Near Keshav Baug Party Plot,
Satellite, Ahmedabad - 15.
2. HDFC Bank- Card Division,
PO Box No. 8654,
Thiruvanmiyur, PO Chennai-600041. ...Respondents
Coram : Hon'ble Mr. Justice V. P. Patel, President
Hon'ble Ms.A.C.Raval, Member
APPERANCE : Mr. Ajay Khanderia Party in person as an Appellant Mr. V. M. Pancholi Advocate for the Respondent Order by Hon'ble Ms. A.C.Raval, Memeber
1. The Appellant has filed this appeal under section 15 of the consumer protection Act 1986, being aggrieved by and dissatisfied with the order dated 23.05.2022 passed by the Learned District Commission Ahmedabad (Additional) in consumer complaint No.680/2017.
2. Heard the Appellant, party in person and Ld. Advocate Mr. V. M. Pancholi for the Respondents.
3. Order under challenge:
"૧. ૧૧૧૧૧૧૧૧૧ ૧૧૧૧૧૧ ૧૧૧ ૧૧૧૧૧૧૧ ૧૧૧૧૧૧૧ ૧૧૧ ૧૧.D.I.Dabhi A-418-2022 Page 1 of 11
૧. ૧૧૧૧૧ ૧૧૧૧૧ ૧૧૧ ૧૧૧૧૧૧ ૧૧૧૧ ૧૧૧૧ ૧૧૧૧ ૧૧૧ ૧૧૧ ૧૧૧૧૧૧૧ ૧૧૧૧ ૧૧૧. ૧. ૧૧૧૧૧૧૧૧૧ ૧૧૧૧૧ ૧૧૧૧ ૧૧૧૧ ૧૧૧૧ ૧૧૧૧૧૧૧૧ ૧૧૧૧૧.
4. Facts of the case: It is a case of the complainant that HDFC credit card division, had Charged Usurious finance charges, + GST on short payment, though minimum amount due was paid in time. The usurious finance charges are interest in other words. The complainant had approached Reserve Bank of India (banking ombudsman) in August 2017, but nothing happened and the issue remained unresolved. The complainant filed Consumer Case no. 680/2017 before the Ld. District Commission. The complainant had quoted one- way business attitude by giving one example that refund from Snapdeal of the Lenova laptop for Rs. 36,490 was received by the complainant on 10th June 2015, duly processed by the Snapdeal in HDFC bank account. The complainant followed up with the bank several times on phone, but did not got the credit of the said amount in the bill statement of the Bank dtd. 25/6/2015. The Bank denied any refund of the same, though the Snapdeal reference UTR number was given. The refund appeared with the back date of 17/6/2015 in the statement of 25/7/2015. There was a delay of 39 days in crediting the refund to the account of the complainant. Those 39 days delay was not compensated with interest, though there was a RBI circular, in regard to uniformity in penal interest payable by bank. The opposing party appeared before the Ld. District Commission and raised its objections. The opponents raised preliminary objection regarding delay in filing the consumer complaint. By considering the preliminary objection of the opponents the Ld. District Commission observed that the complainant has claimed 40 days interest from the date 10/6/2015. Hence the consumer complaint is required to be filed on or before 10/6/17. The complaint was filed on 16/8/17. Therefore, there is a delay of about two months in filing the complaint. The complainant gave an application for condonation of delay in pending consumer complaint before the Ld. District Commission. The application was kept for hearing, along with the main complaint. The Ld. District Commission finally decided the complaint on the ground of delay in filing the complaint without appreciating the pending application for condonation of delay vide its order dated 23/5/2022. Being aggrieved by and dissatisfied with the D.I.Dabhi A-418-2022 Page 2 of 11 order passed by the Ld. District Commission, the complainant has preferred the present appeal.
5. Argument of the Appellant: The appellant appeared party in person and argued out his case and submitted that the Ld. District Commission has misread and misconstrued the averments in the complaint. The Ld. District Commission has failed to appreciate that the main grievance of the complainant was for the exorbitant charges levied by HDFC bank credit card division and unnecessarily made Snapdeal refund the main subject, though it was just for an example. The Ld. District Commission has considered the delay, only on the part of the complainant and did not take cognizance of section 13 of the CP Act 2019 and delay in filing the written statement by the opponents. The complaint was filed on 16th of August 2017 and reply filed by the opponents on 3rd of March 2018, i.e. after delay of almost 195 days, which is against the provisions of law that reply should be filed within 45 days from the receipt of the notice. As the opponents heavily relied upon the filing of the complaint late by one month, the complainant filed application for condonation of delay in pending complaint, which was kept for hearing with main matter and the main matter was rejected on the ground of delay in filing the complaint. The Consumer Protection Act is a benevolent statute. At the time of deciding the matter, the consumers' rights should be protected. Instead of dismissing the matter on technical grounds, the commission should have taken the pragmatic view and had to decide the complaint on merits. Even otherwise the order passed by the Ld. District Commission is perverse, illegal, against the principles of natural Justice, against the facts and low, hence is required to be quashed and set aside and this appeal may be allowed.
6. Argument of the Respondent: The Ld. Advocate appearing for the respondents argued that as per section 24 A of the C P Act, the complaint should be filed within 2 years from date, the cause of action arises. The complaint is barred by limitation, the same is filed without delay condonation application. The complainant got refund on 10/6/2015 in his HDFC bank credit card account. The complainant D.I.Dabhi A-418-2022 Page 3 of 11 had to file a complaint on or before 10/6/2017. However, complaint was preferred on 16/8/2017 i.e. after two months from the date of cause of action. It is obligated on the part of the complainant to file a complaint with delay condonation application. The opponent relied upon the judgment reported in II (2009) CPJ 29 (SC), in the matter of state bank of India vs B.S. AgriculturIe Industries. That the order passed by the Ld. District Commission is just, proper and valid and does not require any interference. Hence be confirmed and this appeal may be dismissed.
Merit of the case:
7. For deciding the present appeal, certain facts are required to be taken into consideration that the complainant has not only sought an interest on delayed credit of refund in his HDFC credit card account by 40 days, but the complaint has been filed against the one-way business attitude of the opponent Bank and the exorbitant charges collected for delay and short payment. The Snapdeal refund was quoted to bring to the notice of the Ld. District Commission the one-way business attitude of the opponent Bank. For deciding the present appeal, certain dates are important to be noted. That on 10/6/2015 Snapdeal, refunded the amount in bank account of the complainant. It was not reflected in the reinstatement of 25/6/2015. The complainant approached the Bank. Finally the refund was reflected in bill statement dated 25/7/2015 with the back date effect of 17/6/2015. The complainant preferred consumer complaint before the Ld. District Commission on 16/8/2017. The opponents appeared before the Ld. District Commission and raised the preliminary objection that the complaint is not filed within the limitation of two years from when the cause of action arose. In pending complaint, the complainant filed application on 16/08/2017, which was kept for hearing with main matter. The complaint was dismissed on the ground of delay in preferring the complaint and the complaint was not accompanied with delay condonation application at the time of filing of the complaint.
8. The opponent heavily relied upon the judgment reported in II (2009) CPJ 29 (SC), in the matter of state bank of India vs B.S. D.I.Dabhi A-418-2022 Page 4 of 11 Agricultural Industries. The reliance is made on paragraph number 8 and 11 of the judgment. Both the paragraphs are reproduced as below:
"8. 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 there under. 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."
"11. The section debars any fora set up under the Act, admitting a complaint unless the complaint is filed within two years from the date of which the cause of action has arisen. Neither the National Commission nor the State Commission had considered the preliminary objections raised by the appellant that the claim of the respondent was barred by time. According to the complaint filed by the respondent, the cause of action arose when, according to the respondent, possession was received of the booth site and it was allegedly found that an area less than the area advertised had been given. This happened in January 1987.
Furthermore, the bhatties which were alleged to have caused loss and damage to the respondent, as stated in the complaint, had been installed before 1989 and removed in 1994. The complaint before the State Commission was filed by the respondent in 1997, ten years after the taking of possession, eight years after the cause of alleged damage commenced and three years after that cause ceased. There was not even any prayer by the respondent in his complaint for condoning the delay.
12. Therefore, the claim of the respondent on the basis of the allegations contained in the complaint was clearly barred by limitation as the two- year period prescribed by Section 24-A of the Act had expired much before the complaint was admitted by the State Commission. This finding is sufficient for allowing the appeal."
this Court highlighted with reference to Section 3 of the Limitation Act that it is for the court to determine the question as to whether the suit is barred by limitation or not irrespective of the fact that as to whether such a plea has been raised by the parties; such a jurisdictional fact need not be even pleaded.
D.I.Dabhi A-418-2022 Page 5 of 1112. In so far as the present case is concerned, at the first available opportunity in the written statement itself the Bank raised the plea that the complaint was barred by limitation. However, the objection with regard to limitation went unnoticed by all the three fora, namely, District Forum, State Commission and National Commission. Since the question relating to limitation goes to the root of the matter and may render the order illegal, we would now see whether the complaint was filed within time i.e., within two years of accrual of cause of action."
9. Looking to the aforementioned observation by the Hon'ble Apex Court, it is clearly stated in para 11that there was not even any prayer by the respondent in his complaint for condonation of delay. The complainant had not filed any application for condonation of delay and further the preliminary objection raised by the original opponent regarding limitation was not considered by all 3 forums below i.e. the National Commission, the State Commission or the District Commission. The fact of these judgments is different than the facts of the case on hand. Therefore this judgment is not helpful to the case of the opponent bank. Here pending the complaint, complainant filed an application for condonation of delay which was kept for hearing with the main matter and the complaint is finally decided on the ground of delay for filling the complaint.
10. Section 24 A of the CP Act, 1986 deals with the period of limitation for filling the compliant section 24 A reads 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."
11. As per the provisions of section 24 A the complaint should be filed within 2 months from the date on which the cause of action has arisen sub-section 2 deals with the condonation of delay in filing the complaint. If the complainant satisfies the commission that the he had sufficient cause for not filing the complaint within the prescribed period under sub-section 1, the complaint can be entertained beyond the D.I.Dabhi A-418-2022 Page 6 of 11 limitation of 2 years. In the present case the refund by the snapdeal is reflected in the bill statement generated on 25/07/2015 with the back date of 17/06/2015, therefore the complainant has claimed the interest for 39 days delay in crediting the refund in his account as the cause of action has arisen for claiming the interest for 39 days on 25/07/2015. Therefore in our view the period of limitation starts from the date 25/07/2015. In that case the complaint filed on 16/08/2017 is well within the limitation.
12. If we consider the delay as alleged by the opponent bank and consider the observation by the Ld. District Commission i.e. of 2 months let us examine provisions of section 12 of the CP Act, 1986. Section 12 Manner in which complaint shall be made:
"A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided, may be filed with a District Forum, by-
(a) the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided;
(b) any recognised consumers association whether the consumer to whom the goods sold or delivered or service provided or agreed to be provided is a member of such association or not; or
(c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or
(d) the Central or the State Government."
(3) on receipt of complaint made on the sub-section (1) the District Forum may be ordered allow the complaint to be proceeded with or rejected.
13. From the reading of aforementioned provision it transpires that on receipt of complaint, the District Forum by admission hearing should decide the admissibility of the complaint and either proceed with the complaint or reject the same at the admission stage. It is further provided that admissibility of the complaint shall be ordinary decided within 21 days from the date on which the complaint was received. There is a clear provision in the CP Act, 2019 under section 36 that if the question of admissibility of the complaint is not decided within the 21 days of its presentation it should be considered has admitted. Here in the act of 1986 it is mentioned that admissibility of the complaint shall ordinarily be decided within 21 days from the date on which the complaint was received. When within 21 days the Ld. District D.I.Dabhi A-418-2022 Page 7 of 11 Commission does not decide whenever the complaint is admissible or not on the ground of delay in filing the complaint and the complaint is admitted, in that case if the complainant files the application for condonation for delay it should be considered on merits for the satisfaction of the commission.
14. The appellant relied upon the judgment in 2022 LiveLaw (SC) 550 in the matter between Manager, Indusind Bank Limited & Anr. Versus Sanjay Ghosh, and argued that the question of limitation is not to be examined with a view to decline the condonation, but to sustain justice. Here the alleged delay is of about 2 months. It is not a huge delay that should be considered sympathetically for redressing the main grievance of the complainant. The further reliance is made by the complainant on the judgment rendered by the Hon'ble Apex Court in Civil Appeal No.3883 of 2007 in the matter between National Insurance Co. Ltd. Vs. Hindustan Safety Glass works ltd. Para 18 of the said judgment reads as under:
"18. In our opinion, in a dispute concerning a consumer, it is necessary for the courts to take a pragmatic view of the rights of the consumer principally since it is the consumer who is placed at a disadvantage vis- à- vis the supplier of services or goods. It is to overcome this disadvantage that a beneficent legislation in the form of the Consumer Protection Act, 1986 was enacted by Parliament. The provision of limitation in the Act cannot be strictly construed to disadvantage a consumer in a case where a supplier of goods or services itself is instrumental in causing a delay in the settlement of the consumer's claim. That being so, we have no hesitation in coming to the conclusion that the National Commission was quite right in rejecting the contention of National Insurance in this regard."
We are of the opinion that the commission should take the pragmatic view for the rights of the consumer and when the delay is not huge, and is of about 2 months it should be condoned and the matter should be decided on merits.
15. While deciding the application for condonation for delay in filing the complaint the object and preamble of the CP Act must be kept in mind. The preamble of the act reads as;
"An act to provide for better directions of the interests of consumers and for that purpose to make the provision for the establishment consumer councils and other authorities for the settlement of consumer disputes."D.I.Dabhi A-418-2022 Page 8 of 11
Therefore while deciding the admissibility with the other provisions of the Act, the preamble should also to be kept in mind.
16. The main issue to be decided is that whether the application made pending the complaint can be entertained or not and the delay can be condoned after the admission of complainant. When the consumer is appearing party in person before the Commission, he is not supposed to follow minutely the provisions of the Act in its literal sense. When the opponent raised the preliminary objection, to show his bonafide the complainant filed the application for condonation for delay in pending complaint. The application is not decided by the Ld. District Commission individually but it was kept for hearing with the main matter and the main matter after admission dismissed on the ground of delay in filing the complaint. If reliance is made on the observations made in the case of B.S. Agricultural (supra) it is the duty of the commission before which the complaint is filed to decide the admissibility on the ground of delay at the time of admission independently though there may not be the application for condonation of delay. We have come across the judgment rendered by the Hon'ble Gujarat High Court in SCA 1418/2022 in the case of Vaghri Dhirubhai Kantibhai Vs Charity Commissioner Gujarat and alive matter in group decided on April 19, 2023. In the aforementioned judgment the provision of sub-section (1) of section 3 of the limitation act which discussed "3. Bar of limitation- (1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence." In para 10 its observed as under:
"In view of the legal position as explained by the Apex Court and in view of the fact that when the appellant had C/SCA/1418/2022 JUDGMENT DATED: 19/04/2023 filed the appeal beyond limitation and it did not accompany any application for condonation of delay supported by any affidavit, the appeal was not entertainable. We have therefore, no hesitation in holding that a time barred appeal filed without delay condonation application supported by an affidavit is not maintainable. The appeal deserves to be dismissed as time barred."
17. Thereafter in para 15 the provision of order 41 rule 3 (A) of the CPC is dismissed. Para 15 reads as under:
"It is very clear from the above where the Division Bench of this Court has held that from the bare reading of the provisions of Order XXXXI D.I.Dabhi A-418-2022 Page 9 of 11 Rule 3A of CPC, it is clear that if the appeal is filed beyond period of limitation then it has to be accompanied by an application supported by affidavit for condonation of delay in filing appeal and in absence of any application supported by affidavit for condonation of delay, the appeal is rendered time barred and is liable to be dismissed even in absence of plea of limitation having been set up as defence. If the appeal was time barred when it was filed, the defect could be cured by filing delay condonation application subsequently."
18. The case of the complainant is squarely coverd under the observation made by the Hon'ble Gujarat High Court in the case of Vaghri Dhirubhai Kantibhai Vs Charity Commissioner Gujarat and alive matter in group. We are of the view that if the delay condonation application is filed subsequently it should be dealt with in accordance with law and on merits and the Ld. Commission before which the complaint has been filed and application made subsequently should be decided on merits and to the satisfaction of the Commission. Therefore in the reasons stated above the appeal is partly allowed and the delay in filing the complaint is to be condoned in the matter to be remanded back to the Ld. District Commission for the decision on merits. We have considered the grounds stated in memo of appeal, reasons stated in impugned judgment and order, documentary evidence produced on record, argument advanced by the Ld. Advocate for both the parties, ratio laid down in the above referred citations and facts and circumstances of the case. Hence in the interest of justice following order is passed.
ORDER A. The Appeal No.418/2022 is partly allowed.
B. The delay in filing the complaint is hereby condoned. C. The order dated 23.05.2022 passed by the Consumer Disputed Redressal Commission; Ahmedabad (Additional) in Consumer Complaint No. 680/2017 is hereby quashed and set aside. D. The matter is remanded back for taking fresh decision. The Ld. District Commission is directed and ordered to re-admit the Consumer Complaint No. 680/2017 under its original number and status in the register of Consumer Complaint.
D.I.Dabhi A-418-2022 Page 10 of 11E. Thereafter, the consumer complaint no. 680/2017 is transferred to the Ld. Consumer Dispute Redressal Commission Ahmedabad (Additional). The Ld. Consumer Dispute Redressal Commission Ahmedabad (Additional) is directed and ordered to proceed to determine the complaint; and the evidence (if any) recorded during the original trial shall, subject to all just expectations, be evidence during the trial of Consumer Complaint after remand.
F. It is made clear that we have not expressed any opinion on merits of the case, the CDRC Ahmedabad (Additional) shall decide the complaint according to law.
G. No order as to cost.
H. Registry is directed to send certified copy of this judgment to the parties free of cost. Registry is further directed to send copy of this judgment to the District Commission Ahmedabad (Additional) through E-mail in PDF format for taking necessary action.
Pronounce in open court today on 18/05/2023.
[Ms. A. C. Raval] [Hon'ble Justice V.P. Patel]
Member President
D.I.Dabhi A-418-2022 Page 11 of 11