State Consumer Disputes Redressal Commission
Sh. Suresh Kumar. vs Sh. Raj Kumar. on 5 January, 2021
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
Misc. Application No. : 256/2019
First Appeal : 174/2019
Date of Presentation : 07.05.2019
Order reserved on M.A. : 14.12.2020
Date of Order on M.A : 05 .01.2021
---------------------------------------------------------------------------------------
Suresh Kumar son of Sh. Banwari Lal R/o Village & Post Office
Bhota, Tehsil Barsar, District Hamirpur, Himachal Pradesh.
...... Applicant/complainant/Appellant
Versus
Raj Kumar, Manager, Kangra Central Cooperative Bank Ltd.,
Branch Office Bhota, District Hamirpur, Himachal Pradesh.
......Non-applicant/opposite party/Respondent
Coram
Hon'ble Ms. Sunita Sharma, Presiding Member
Hon'ble Mr. R.K. Verma, Judicial Member
Whether approved for reporting?1
For Applicant : Mr. Tarun K. Sharma, Advocate.
For Non-applicant : Mr. Rakesh Kumar Thakur,
Advocate.
MS.SUNITA SHARMA, PRESIDING MEMBER:
O R D E R :-
1. Present order shall dispose of application filed for condonation of delay of 332 days in filing appeal. Brief facts of matter :-
2. Complainant on the strength of complaint has claimed that opposite party be directed to show the Cash Credit Limit Accounts of Rupees 8 Lac each separately in the 1 Whether reporters of the local papers may be allowed to see the order?
Suresh Kumar Versus Raj Kumar M.A. No.256/2019 in F.A. No.174/2019 name of complainant and also to pay compensation of Rs.50,000/- for causing mental tension, harassment and monetary loss along with litigation expenses on the grounds that complainant is running business in Village and Post Office Bhota and he had secured Cash Credit Limit in sum of Rupees 8 Lac only in the name and style of M/s Soni Trading Company, Village and Post Office Bhota as well as Cash Credit Limit facility in the sum of Rupees 8 Lac in the name and style of M/s Suresh K. Oil & Timber Department, Village and Post office Bhota on 26-12-2011. It is submitted that opposite party with ulterior motive in order to cause loss to the complainant wrongly and illegally without the consent of the complainant got converted the amount of Rs.5,12,864/- of M/s Soni Trading Company and Rs.4,70,176/- of M/s Suresh K. Oil and Timber Depot Bhota in arbitrary manner and no such amount was ever withdrawn or paid to the complainant as per the procedure for reasons known to the opposite party.
3. It is further pleaded that complainant issued legal notice dated 01-05-2013 to opposite party through registered post on 02-05-2013 through which opposite party was requested to show the Cash Credit Limit Accounts of rupees 8 Lac each in the name of complainant separately and not to show the same in other account of the complainant, but no action was taken by the opposite party. Such act and conduct 2 Suresh Kumar Versus Raj Kumar M.A. No.256/2019 in F.A. No.174/2019 of opposite party amount to unfair trade practice and deficiency in service.
4. The complaint has been resisted and contested by opposite party by filing reply, wherein preliminary objections of maintainability, estoppal and that present complaint is abuse of process of law, have been taken. On merits, it has been alleged that opposite party at the relevant time was working as Manager of the bank and has not performed any act in the individual capacity. Both the firms of the complainant have defaulted in making the repayment of loans and as such civil suits for recovery have been filed in the competent court of law. Similar complaints were filed by the complainant before Registrar, Cooperative Societies, Shimla as well as before Lokayukta Himachal Pradesh and all were considered on merits but later on, all were dismissed being merit less. Initially, the complainant was having some loan account with the bank, in which he had already defaulted in re-payments. Consequently with some understanding, when aforesaid loans were sanctioned, complainant handed over duly signed vouchers by which the amounts were transferred and his previous accounts were adjusted. Such transfer vouchers of the bank were duly signed and confirmed by the complainant and were also duly stamped by the complainant. Correct statements of accounts were issued to the 3 Suresh Kumar Versus Raj Kumar M.A. No.256/2019 in F.A. No.174/2019 complainant as and when same were required by him. There is nothing on the part of opposite party which amount to unfair trade practice and deficiency in service.
5. Learned District Consumer Commission dismissed the consumer complaint filed by complainant.
6. Feeling aggrieved against the order passed by learned District Commission, complainant filed appeal and also filed application for condonation of delay of three hundred thirty two days. It is pleaded in the application that applicant is a layman and does not understand the intricacies of law. It is pleaded that applicant received certified copy of order in the second week of May, 2018 but being layman he was not able to understand the same. It is further pleaded that applicant met with his counsel in the second week of August, 2018 and only then he came to know that his complaint has been dismissed by learned District Consumer Commission on dated 11.04.2018. It is pleaded that due to certain unavoidable circumstances the applicant could not able to collect the entire file from his counsel, who is practicing at Hamirpur, as he has sent the entire office record of the case to his record room and as such, it took some time to find out the same. It is further pleaded that in the last week of April, 2019 the applicant brought entire record and thereafter appeal was filed without any further delay. Prayer for condonation of delay in filing appeal sought. 4
Suresh Kumar Versus Raj Kumar M.A. No.256/2019 in F.A. No.174/2019
7. No response filed on behalf of non-applicant.
8. We have perused the entire record carefully.
9. Following points arise for determination in present application.
1. Whether there are sufficient causes for condonation of delay of 332 (Three hundred thirty two) days in filing appeal as mentioned in memorandum of ground of condonation application?
2. Final order.
Findings upon point No.1 with reasons:
10. Applicant filed affidavit Ext.A.I in evidence. There is recital in affidavit that deponent is a layman and does not understand the intricacies of law. Further, applicant reiterated the facts as mentioned in the condonation application and same are not repeated for the sake of brevity.
11. Non-applicant filed affidavit Ext.NA-I in evidence.
There is recital in affidavit that applicant has not explained each day delay in filing appeal. There is recital in affidavit that affidavit of learned counsel below has not been filed by applicant to substantiate that the file sent to his record room.
12. In our opinion, cause shown by applicant for not filing appeal within prescribed period of limitation is wholly unsatisfactory, because the applicant has not mentioned the alleged unavoidable circumstance due to which he could not file the appeal within limitation. Moreover, the applicant has 5 Suresh Kumar Versus Raj Kumar M.A. No.256/2019 in F.A. No.174/2019 not filed the affidavit of learned counsel engaged by him before District Commission below to substantiate his plea that the file was sent to his record room. Section-15 of Consumer Protection Act (old) and Section 41 of Consumer Protection Act (new) prescribes special period of limitation to file appeal within 30 days in old Act and within 45 days in new Act. Moreover, object of expeditious adjudication of consumer dispute will get defeated if this Commission entertains highly belated appeals or revisions against the order of Learned District Commission. In the instant case, grounds mentioned in the condonation application are not sufficient to justify delay of 332 days in filing appeal.
13. It is not in dispute that complainant had secured Cash Credit Limit of Rupees 8 Lac each in the name of M/s Soni Trading Company and in the name of M/s Suresh K. Oil & Timber Department. The complainant in his complaint is seeking directions that opposite party be directed to show the Cash Credit Limit Accounts of Rupees 8 Lac each separately in the name of complainant and also to pay compensation of Rs.50,000/- for causing mental tension, harassment and monetary loss along with litigation expenses. It is settled that a person availing Cash Credit Limit facility cannot be considered a consumer under the Consumer Protection Act because Cash Credit Facility is availed by the complainant for 6 Suresh Kumar Versus Raj Kumar M.A. No.256/2019 in F.A. No.174/2019 commercial purposes. Therefore, on merits also, appeal of the complainant will not survive.
14. We are relying upon ruling of Hon'ble National Consumer Commission i.e. 2019(1) CPR 378 (NC) titled M/s. Kolkata Edu & Business Gurukul Versus Sahabuddin Naskar and Ors., 2011(IV) CPJ 63 (SC) titled Anshul Aggarwal and 2019(1) CPR 451 (NC) titled Onkar Singh Sandhu Versus B.S. Prasad and Ors. The Hon'ble Supreme Court and Hon'ble National Commission deprecated the practice of condoning long delay which is not sufficiently explained and these authorities are fully applicable in the present facts of the case.
15. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Commission in place of period prescribed by the legislature for filing appeal. Therefore, we do not find any cogent reason to condone the delay. Hence, in the facts and circumstances of the case as explained hereinabove, point No.1 is decided accordingly. Point No.2: Final Order
16. In view of findings upon point No.1 above application for condonation of delay of 332 days in filing appeal is dismissed. Consequently F.A. No.174/2019 is also 7 Suresh Kumar Versus Raj Kumar M.A. No.256/2019 in F.A. No.174/2019 dismissed as barred by limitation. Parties are left to bear their own litigation costs before State Commission.
17. Certified copy of order be sent to learned District Forum/Commission forthwith for information. Certified copy of order be sent to parties forthwith as per rules. File of State Commission be consigned to record room after due completion forthwith. M.A. No.256/2019 & F.A. No.174/2019 are disposed of. Pending application(s) if any also disposed of.
Sunita Sharma Presiding Member R.K. Verma Judicial Member 05.01.2021 Manoj 8