National Consumer Disputes Redressal
Sahil Garg vs Chief Manager/Manager, Bank Of Baroda & ... on 2 April, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2870 OF 2018 (Against the Order dated 02/07/2018 in Appeal No. 43/2018 of the State Commission Haryana) 1. SAHIL GARG S/O. R.K. GAR, R/O. H.NO. 873, SECTOR 10, PANCHKULA HARYANA ...........Petitioner(s) Versus 1. CHIEF MANAGER/MANAGER, BANK OF BARODA & 2 ORS. SECTOR 8, PANCHKULA HARYANA 2. REGIONAL MANAGER, BANK OF BARODA REGIONAL OFFICE OPPOSITE DEVENTURE HOTEL, NAMASTE CHOWK KARNAL HARYANA 3. MANAGING DIRECTOR/AUTHORIZED SIGNATORY BANK OF BARODA, BARODA CORPORATE CENTRE C-26, G. BLOCK KURLA COMPLEX, BANDRA EAST MUMBAI-400051 MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Petitioner : Mr. Anish Garg, Advocate For the Respondent :
Dated : 02 Apr 2019 ORDER
This revision petition has been filed by the petitioner Sahil Garg against the order dated 02.07.2018 of the State Consumer Disputes Redressal Commission, Haryana, (in short 'the State Commission') passed in First Appeal No.43/2018.
2. Brief facts relevant for disposal of the present revision petition are that the case was fixed for consideration on admissibility of the complaint. Sahil Garg, petitioner/complainant had filed this complaint against the OPs with the averments that the complainant was having a saving bank account No.27210100005981 with OPs and the same was in operation since 2009. An amount of Rs.46,00,00,000/- was credited/transferred in the saving account of complainant and the OPs paid the interest of Rs.4,42,694/- for the period from 1.11.2011 to 29.1.2012. In the month of March, 2013, without intimation to the complainant, OPs deducted an amount of Rs.3,49,889/- from the account. On 13.12.2012, the OPs also recovered the amount of Rs.93,051/- without any instructions or intimation to the complainant.
3. Aggrieved, the complainant filed a consumer complaint bearing No.274 of 2017 before the District Consumer Disputes Redressal Forum, Panchkula, (in short 'the District Forum'). The District Forum vide its order dated 07.12.2017 dismissed the complaint as time barred.
4. The complainant preferred appeal bearing No.43 of 2018 before the State Commission and the State Commission dismissed the appeal confirming the order of the District Forum.
5. Hence, the present revision petition.
6. Heard the learned counsel for the petitioner at the admission stage. Learned counsel mentioned that in the present case the legal notice was served on opposite party bank on 03.09.2017. Both the fora below have never given any finding on issue that petitioner in his complaint as well as in his appeal specifically stated that the respondent have first time rejected the claim of the petitioner on 10.10.2017 when they gave the reply dated 10.10.2017 to the legal notice dated 03.09.2017 issued by the petitioner's advocate.
Prior to that neither it was rejected nor it was settled by the respondents. Hence, the complaint filed by the petitioner is well within limitation as the cause of action was in continuance. Hence, complaint of the petitioner is liable to be heard on merits.
7. In support of his arguments, learned counsel for the petitioner referred to the judgment of this Commission in Premier Homes Vs. Oliver Archibald Aranha and Anr., 2010 (1) CPJ (NC) 16, wherein the gist of the order of this Commission is as under:-
"B. Limitation- Time-barred- Advance was paid by complainant in 1995- Construction not completed by O.P. in time- Notice issued by complainant replied in 2003- Cause of action was continuing, last arose from the date of refusal of notice- complaint held within time, hence maintainable- Revision dismissed."
8. On the basis of the view taken by this Commission in Premier Homes Vs. Oliver Archibald Aranha and Anr. (supra), it was requested by the learned counsel that the delay should be counted from the date of reply of the notice given by the opposite party, i.e. from 10.10.2017.
9. I have carefully considered the arguments advanced by the learned counsel for the petitioner and examined the record. It is seen that opposite parties in the month of March 2013 deducted an amount of Rs.3,49,889/- from the account of the complainant and on 13.12.2012, the amount of Rs.93,051/- was also recovered by the opposite parties. These deductions must have come to the notice of the complainant or his father in the year 2013 itself. Thus, the cause of action arose only when the amount was deducted or when it came to the knowledge of the complainant. Learned counsel stated that they were in constant correspondence with the opposite party bank. However, finally the bank has given their version in the reply dated 10.10.2017 sent in response to the legal notice given by the complainant on 03.09.2017. In the judgment relied upon by the learned counsel for the petitioner in Premier Homes Vs. Oliver Archibald Aranha and Anr. (supra), it is seen that the cited case relates to some advance given by the complainant for construction purpose and the construction was not completed in time. In that case, this Commission has allowed the limitation to be considered from the date of reply of the legal notice. In that case, the cause of action has continued because neither the construction was completed nor the advance amount was returned to the complainant. In the present case, the cause of action cannot be considered to be continuing as the action on behalf of the opposite parties was completely done when they deducted amounts from the account of the complainant and cause of action arose at the time when these amounts were deducted by the bank. The cause of action cannot be stated to have been continued in the present case because it was not certain whether the amounts deducted by the bank were required to be refunded to the complainant. Thus, the case of Premier Homes Vs. Oliver Archibald Aranha and Anr. (supra) is not applicable in the facts and circumstances of the case in hand.
10. Clearly the trial forum i.e. the District Forum has to examine the complaint from the point of view of limitation as held by the Hon'ble Supreme Court in the matter of State Bank of India Vs. M/s. B.S. Agricultural Industries (I) AIR 2009 SC 2210 wherein the following has been held:
"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 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".
11. Accordingly, the District Forum examined the whole issue and found that the complaint has been filed with a delay of about four years and no application for condonation of delay was also submitted, therefore, complaint was dismissed as time barred. Moreover, the Hon'ble Supreme Court in State of Tripura & Ors. Vs. Arabinda Chakraborty & Ors., decided on 21.04.2014 (SC), has held the following:-
"10. In our opinion, the suit was hopelessly barred by law of limitation. Simply by making a representation, when there is no statutory provision or there is no statutory appeal provided, the period of limitation would not get extended. The law does not permit extension of period of limitation by mere filing of a representation. A person may go on making representations for years and in such an event the period of limitation would not commence from the date on which the last representation is decided. ........"
12. This Commission in Panipat Thermal Power Station HPGCL, Panipat through its Executive Engineer/LRE-7 Vs. New India Assurance Co. Ltd., (2013) 1 CPJ 114 (NC) has held that:-
"6. ............It is well settled principle of law that after repudiating the claim or making some payment under claim as final payment subsequent correspondence between the parties does not extend period of limitation and complaint has to be filed within the prescribed statutory period of two years. ......................................................................."
13. The same view has been taken by this Commission in Mahesh Nensi Shah Vs. Oriental Insurance Co. Ltd., III (2006) CPJ 414 NC. It has been observed that:-
"3. ........ The cause of action for filing the complaint arose in 1992 itself because it is by now settled law that repudiation itself is the 'Cause of Action'. No amount of correspondence between the parties can extend the period of limitation, whereas in the present case the complaint was filed after almost 5 years of the 'Cause of Action'. No sufficient ground, except exchange of correspondence between the parties, has been shown to us to satisfy us that there were sufficient grounds for filing the complaint with such great delay. The State commission has rightly dismissed the complaint as barred by limitation for the simple reason that any amount of correspondence does not extend the period of limitation as per settled law. ..................................."
14. The above referred authoritative judgments clearly establish that no amount of exchange of communications can extend the period of limitation and that the trial forum was duty bound to consider the question of limitation while deciding the complaint.
15. Special limitation periods have been prescribed under Consumer Protection Act, 1986, its Rules 1987 and its Regulations 2005 for speedy disposal of consumer disputes. Hon'ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has laid down that;
"It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the consumer Foras."
16. Decision of Anshul Aggarwal (Supra) has been reiterated in CicilyKallarackal Vs. Vehicle Factory, IV (2012) CPJ 1(SC) 1, wherein Hon'ble Supreme Court observed:-
"4. This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC) has explained the scope of condonation of delay in a matter where the special Courts/ Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute (s).
5. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay.
6. Hence, in the facts and circumstance of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay".
17. In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, Supreme Court observed:-
"We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition".
18. The above authoritative judgments of the Hon'ble Supreme Court are equally applicable in the present case and particularly from the above observations of the Hon'ble Supreme Court in R.B. Ramlingam Vs. R.B. Bhavaneshwari,(supra), it is to be examined whether the petitioner has acted with reasonable diligence in prosecution of his case. Clearly in the present case, the petitioner has taken no legal action from March, 2013 till the date of giving legal notice in the year 2017. Thus, I am convinced that the petitioner has not acted with reasonable diligence in prosecution of his case and that has resulted in filing the complaint beyond the period of two years as prescribed in the Consumer Protection Act, 1986. It is cleaner that the negligence, deliberate inaction and lack of bonafides are imputable to the complainant and therefore, the complainant is not entitled for any condonation of delay as well. Moreover, as no application for condonation of delay has been filed, there is no question of condoning the delay in the matter.
19. I have also gone through the reply of the bank dated 10.10.2017 to the legal notice given by the complainant. It is brought out that the amount of Rs.46,00,00,000/- was deposited in the saving bank account, whereas this was a business transaction as alleged by the bank and the same could not have been deposited in the saving account rather it was required to be deposited in the current account. Thus, the interest of Rs.4,42,694/-, which was credited to the account of the complainant was actually not due and the same has been recovered by deducting these amounts. It is further seen that the complainant has closed his account on 08.08.2017 and after that only this complaint has been filed before the District Forum. From this aspect also, I do not find any reason to interfere with the impugned order.
20. Based on the above discussion, I do not find any illegality, material irregularity or jurisdictional error in the order dated 02.07.2018 of the State Commission which calls for any interference from this Commission. Consequently, the revision petition No.2870 of 2018 is dismissed at the admission stage.
...................... PREM NARAIN PRESIDING MEMBER