National Consumer Disputes Redressal
Himkasth Sales Depot, Nurpur vs State Bank Of Patiala, Nurpur on 10 October, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO.54 of 2007 (From the Order dated 20.10.2006 in Complaint Case No.04/03 of the State Consumer Disputes Redressal Commission, Himachal Pradesh) 1. Himkasth Sales Depot, Nurpur, District Kangra, Himachal Pradesh Through its Divisional Manager, 2. H.P. State Forest Corporation, Van Nigam Bhawan, S.D.A. Complex, Kasumpti, Shimla-171009 .. Appellants Vs. 1. Branch Manager, State Bank of Patiala, Nurpur, District, Kangra Himachal Pradesh 2. State Bank of Patiala, Through its Branch Manager, The Mall, Shimla ..Respondents BEFORE: - HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For the Appellant s : Mr. Sanjay Sarin and Ms. Gagan Deep Kaur, Advocates For the Respondents : Mr. Bharat Arora, Advocate For Mr. Sanjiv Kakra, Advocate PRONOUNCED ON: 10.10.2012 O R D E R
ASHOK BHAN, J., PRESIDENT Complainants/Appellants have filed this Appeal against the judgment and order dated 20.10.06 passed by the State Consumer Disputes Redressal Commission, Himachal Pradesh (in short, the State Commission) in complaint No. 4/03 wherein the State Commission dismissed the complaint filed by them.
FACTS:-
Briefly stated the facts of the case are that the Appellant No.1, Himkasth Sales Depot, Nurpur owned by the Appellant No.2, H.P. Forest Corporation Ltd., opened two collection accounts bearing No.2233 and 5776 with the Respondent No.1, State Bank of Patiala, Nurpur. Respondent No.1 entered into an agreement with Appellant No.2 on 12.4.99 agreeing that the amount deposited by way of drafts or otherwise by the Appellants was to be transferred to its Bank Branch, Respondent No.2 at Shimla within two days of the collection of drafts and in case there was any delay upto seven days in crediting the amount, it would be liable to pay interest @ 12% p.a. and if the delay was more than seven days then the interest @ 24% p.a. to the Appellants. Appellant No.1 deposited different bank drafts with the Respondent No.1 but the same were not transferred to the Respondent No.2 Bank within the stipulated time as agreed to in the agreement. Appellant No.1 requested the Respondent No.1 to pay the interest in terms of the agreement but the Respondent No.1 did not heed.
Complainant No.1, being aggrieved, filed the complaint No. 4/2003 before the State Commission seeking a direction to the Respondent No.1 to pay interest and damages.
Respondents, on being served, entered appearance and filed their written statement on 20.10.03 taking the preliminary objection that the Appellant No.1 had no locus-standi to file the complaint as there was no privity of contract between the Appellant No.1 and the Bank; that the agreement dated 12.04.99 was entered into between the Appellant No.2 and the Bank; that the complaint was hopelessly time-barred.
Despite the preliminary objection taken by the Respondents regarding non-maintainability of the complaint, Appellant No.1 slept over the matter and after an inordinate delay of more than two years, Appellant No.2 filed M.A. No.722/05 under Order 1 Rule 10 CPC on 6.11.05 for its impleadment as a complainant party. State Commission by its order dated 3.01.06 allowed the application reserving liberty with the Respondents to file additional reply resisting the complaint on all/any ground including that it was barred by limitation. Thereafter, on 22.08.06, Appellant No.2 filed M.A. No.769/06 u/s 24 A of the Consumer Protection Act, 1986 (for short, the Act) seeking condonation of delay in filing the complaint on its behalf against the Respondents. Respondents contested the application for condonation of delay on the ground that the same was filed beyond the period of limitation and as such the complaint was not maintainable. On merits, it was pleaded that the agreement dated 12.04.99 was entered into between the Respondent No.1 and the Appellant No.2 and as such there was no privity of contract between the Appellant No.1 and the Respondent No.1. That the complaint filed by the Appellant No.1 was not maintainable and liable to be dismissed.
State Commission, after taking into consideration the averments made in the pleadings and the application for condonation of delay, came to the conclusion that the complaint on behalf of the Appellant No.2 would be deemed to be filed on the date it was added as a party. That no plausible reason had been put forth by the Appellant No.2 for condoning the delay in filing the complaint on its behalf and/or its not joining the complaint when it was originally filed. That the application for impleadment of Appellant No.2 was filed after a lapse of two years of the Respondents filing the written statement to the original complaint taking the objection that the Respondent No.1 did not have any privity of contract with the Appellant No.1 (original complainant). Consequently, application for condonation of delay was dismissed. Complaint filed by the Appellant No.2 was held to be barred by time. Complaint filed by the Appellant No.1 was dismissed on the ground that it had no privity of contract with the Respondent.
State Commission dismissed the complaint by observing thus:-
In the order dated 3.1.06, it was clarified that the respondents can file additional reply to the complaint after impleadment of complainant No.2 resisting the claim on all grounds under law including newly added complainants (i.e. No.2) complaint being barred by limitation. That being the position, there is no reason, much less cause for condoning the delay. As such so far as the complainant No.2 is concerned, complaint is barred by time and accordingly, this application is liable to be rejected. Ordered accordingly. .
When we go into the depth of the complaint and the documents attached with it, what emerges is that agreement was entered into between the complainant No.2 and respondent No.1 Bank and not between complainant No.1 and the Bank. A perusal of the complaint and documents attached by the parties with their respective pleadings it is clearly made out that complainant No.1 had only acted on behalf of complainant No.2. That being the position, there was no personal right/liability in his favour to file the same. In these circumstances, there is no properly constituted complaint which required consideration by us.
In view of the circumstances and the facts, this complaint is held to be not maintainable and on merits also dismissed as such.
Appellants, being aggrieved, have filed the present appeal.
We have heard the Ld. Counsel for the parties at length.
Learned Counsel appearing for the Appellants contends that the State Commission has committed material irregularity in exercise of its jurisdiction by dismissing the complaint filed by the Appellant No.2 as barred by limitation. That having allowed the application under Order 1 Rule 10 of CPC impleading the Himachal Pradesh State Forest Corporation as Appellant No. 2, State Commission could not dismiss the application filed by the Appellant No.1 u/s 24 A of the Act for condoning the delay in filing the complaint. That the State Commission has wrongly observed that the agreement was entered into between the Appellant No.2 and Respondent No.1 and not between Appellant No.1 and the Bank. That the Appellant No.1 had only acted on behalf of the Appellant No.2 and that being the position, the complaint filed by the Appellant No.1 was maintainable. That as per Rule 10 of Order 1 of CPC, the court may at any stage of the suit, if satisfied that the suit has been instituted through a bonafide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. As against this, Ld. Counsel for the Respondents supports the order passed by the State Commission.
After hearing the counsel for the parties at length, we do not find any substance in the submissions made by the Ld. Counsel for the Appellants. The complaint was originally filed by the Appellant No.1 in the year 2003. Respondents in their written statement filed in October, 2003 had taken a specific objection that the Appellant No.1 did not have locus-standi to file the complaint as there was no privity of contract between the Appellant No.1 and the Respondent No.1. That the agreement dated 12.04.99 had been executed between the Appellant No.2 and the Respondent No.1. No application was filed by the Appellants seeking impleadment of the Appellant No.2 for a period of more than two years. It was only in the year 2006 that the Appellant No.2 filed an application seeking its impleadment.
The said application was allowed by the State Commission reserving liberty with the Respondents to file the additional written statement contesting the complaint on all grounds including limitation. Appellants thereafter filed the application u/s 24 A of the Act seeking condonation of delay. The said application suffers from latches as the Appellants in spite of knowing that the complaint originally filed by the Appellant No.1 was not maintainable, did not take any step to file an application for impleadment of the Appellant No.2 for a period of more than two years. No cogent reasons were given in the application seeking condonation of delay in filing the complaint on behalf of the Appellant No.2 and/or its not joining the complaint when it was originally filed. A perusal of the agreement dated 12.04.99 reveals that it had been executed between the Appellant No.2 and the Respondent No.1. For all purposes, complaint filed on behalf of the Appellant No.2 would be deemed to have been filed on 3.1.2006 when it was impleaded as Appellant No.2.
Under the Act, complaint can be filed within two years from arising of cause of action. As on 03.01.06, complaint filed by the Appellant No.2 was clearly beyond the period of limitation as prescribed under the Act. We endorse the finding recorded by the State Commission that the complaint filed on behalf of the Appellant No.2 was barred by limitation. We also endorse the finding recorded by the State Commission that the complaint filed by the Appellant No.1 was not maintainable as it did not have any privity of contract with the Respondent No.1.
Appellant No.1 did not have locus-standi to file the complaint as there was no privity of contract between the parties.
For the reasons stated above, we do not find any merit in the appeal and dismiss the same with no orders as to costs.
.. . . . . .
(ASHOK BHAN J.) PRESIDENT . . . . . . . . . . . . . . . .
(VINEETA RAI) MEMBER Yd