State Consumer Disputes Redressal Commission
The General Manager, Secunderabad And ... vs The Branch Manager, Sbi, Gudur And ... on 16 May, 2012
BEFORE THE A
BEFORE THE
A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
FA.No.361/2010
against C C.No.140/2006 District Forum, NELLORE.
Between
1.The General Manager, South Central Railway, Secunderabad.
2. The Senior Divisional Commercial Manager, South Central Railway, Vijayawada.
3. The Station Manager South Central Railway Nellore District. ..Appellants/ Complainants And
1. The Branch Manager, State Bank of India, Gudur.
2. The Deputy General Manager, State Bank of India, Region-II, (G.B.)Zonal Office, Tirupati, Chittoor District.
3. The Chief General Manager, State Bank of India, (Local Head Office) Bank street, Hyderabad.
4. The Inspector of Police, Gudur-I Town Police Station, Gudur, Nellore District. ..Respondents/ O.Ps.
Counsel for the Appellants : Mr.R.Dilip Kumar.
Counsel for the Respondents : M/s.Vamaraju Srikrishnudu-R1 R2 & R3 served.
(G.P. for State)-R4.
QUORUM:
THE HONBLE SRI JUSTICE D.APPA RAO, PRESIDENT, AND SMT.M.SHREESHA, HONBLE MEMBER, WEDNESDAY, THE SIXTEENTH DAY OF MAY, TWO THOUSAND TWELVE Order (Per Smt.M.Shreesha, Honble Member) *** Aggrieved by the orders in C.C.No.140/2006 on the file of District Forum, Nellore, the complainants preferred this appeal.
The brief facts as set out in the complaint are that the complainant i.e. South Central Railway is account holder-cum-customer of first opposite party i.e. State Bank of India, Gudur mainly for remittance of its collections pertaining to Gudur Railway Station. The complainant submitted that Head Booking clerk of third complainant namely, M.Mallikarjunam carried the day collection amount of Gudur Railway station dated 16-10-2002 amounting to Rs.3,14,736. in a cash bag for deposit of the same with first opposite party bank by 11-20 a.m. on 17-10-2002. Sk.Brahmaiah R.P.F. constable also accompanied as security on that day and they both the reached the Bank by auto and kept the cash bag inside the cash counter cabin of head cashier of 1st opposite party for depositing the same in the account of South Central Railway as per the usual practice and waiting for his turn outside the cabin. The complainant submitted that Mr.Mallikarjunam, HBC of 3rd complainant kept the cash bag inside the counter of head cashier beside the cash bag of APSRTC, Gudur depot and four cashiers of bank were available in the cash remittance room i.e. Sangeetham Narasinga Rao, Arumalla Anjunaiah, 3. Vanteru Polaiah and Yavuru Masthyanaiah were appointed by that time for counting the cash in heavy remittance table and two more persons i.e. Chenji Subrahmanyam and Palukuru Hanumantha Rao were also assisting the above said persons and there is no possibility for outsiders to enter into the heavy cash counting room except the bank staff. After completion of counting of cash of APSRTC, Gudur Depot, K.Jayarami Reddy (RTC earning clerk) took his empty trunk and went to withdrawal counter and withdrew Rs.30,176/- who also observed that railway cash bag was kept by the side of his cash bag while his cash counting was going on. The complainant submitted that Mr.Mallikarjunam, at about 11.40 a.m. noticed that the cash bag of Railways kept inside the cash remittance room was found missing and immediately brought the said fact to the notice of head cashier, his Station Supeintendent, other bank staff including Bank Branch Manager and R.P.F. and also lodged a report to the said incident on 17-10-2002 at 16.00 hours and 4th opposite party registered a case in Crime No.166/2002.
The complainant submitted that the bank authorities did not respond immediately and did not take any preventive action like raising alarm, making search of bank premises for tracing the missed cash bag with in the bank premises. They did not inform the incident of theft to police on time. The Gudur, I town police also did not make fair investigation and did not trace the stolen cash bag and apprehended the culprits.
The sub division police office, Gudur also submitted his grave crime report dated 28-11-2002 wherein he found that the alleged theft of railway cash bag occurred in the heavy cash remittance room of opposite party No.1 bank and also disclosed that except the bank officials there was no possibility or access to outsiders to enter into the cubicle counter of the bank but opposite party No.4 failed to fix the liability on the bank authorities. The railway administration conducted departmental enquiry against M.Mallikarjunam and dropped the charges made against him in view of the report of enquiry officer as he found no fault on the part of Mr.M.Mallikarjunam. During the departmental enquiry, the employees of APSRTC by name K.Jayarami Reddy and Chenji Subrahmanyam deposed before the enquiry officer that Mr.M.Mallikarjunam kept the railway cash bag by the side of APSRTC Gudur depot cash bag inside the cash room of the bank. The Chief Commercial Manager, South Central Railway, Secunderabad issued a demand letter dated 18-5-2004 to opposite party No.3 requesting him to deposit Rs.3,14,736/- into the account of South Central Railway Secunderabad but opposite party No.3 refused to deposit the amount and gave vague reply. The Chief Commercial Manager, South Central Railway, Secunderabad issued a demand letter on 23-9-2004 requesting to give suitable instructions to the police for conducting proper investigation for which opposite party No.2 gave irrelevant reply on 25-11-2004. The complainant No.1 brought the matter to the notice of Director General of Police, Government of A.P. and the Addl.Director General of Police, Railways issued a letter dated 28-1-2008 to complainant No.1 enclosing final report of Superintendent of Police dated 5-1-2008 along with final report of opposite party No.4 dated 30-4-2005. The said report disclosed that Mr.Mallikarjunam kept the cash bag on the table of Head cashier of the bank at 11-20 a.m. and it was found missing at 11-40 a.m and no action was taken against the bank staff for their negligence.
Hence the complaint for a direction to the opposite parties to payRs.6,85,409 along with subsequent interest from the date of complaint till realization together with costs.
Opposite party No.1 filed counter resisting the complaint.
It contended that there is no consumer dispute between State Bank of India and South Central railway. It submitted that it is not aware of Mallikarjuna carrying day collection amount of Gudur Railway station on 17-10-2002 and depositing the same in opposite party No.3 bank. The cashier of the bank and bank staff did not see Mallikarjunam keeping the cash bag on the table inside cash counter. The alleged incident took place on 17-10-2002 and is therefore barred by limitation and in view of complex questions on facts and law, evidence has to be recorded and therefore the Consumer Forum has no jurisdiction. It denied the allegation with regard to keeping the cash bag inside the cash counter cabin and missing of cash bag while it was in remittance room. It also denied the allegation that it did not take immediate action and cooperate with the police during the investigation and submitted that it made all efforts in searching the alleged cash bag but it was not found. It submitted that the Police came to the bank within 30 minutes and that the said Mallikarjunam did not tender any amount for remittance and the bank staff has not given any counter foil to him. Till the cash is handed over to the bank staff by taking voucher, there is no responsibility on the bank with regard to the amount of the customers. The cash bag was missed while it was in the possession of Mr.Mallikarjunam and hence the question of conducting departmental enquiry by the bank officials does not arise. It submitted that they co-operated with the police during investigation and that the complainants are not consumers as defined under Consumer Protection Act, 1986.
It submitted that as per Negotiable Instruments Act, the bank is liable for the amount which is received by the bank employee in the ordinary course of business within banking hours and that there is no evidence that the alleged cash was accounted for by the bank staff and therefore it is not liable for refund of such amount and as long as the cash bag is in the custody and care of employee of complainants, they cannot claim the amount from the bank and submitted that there is no deficiency in service and prayed for dismissal of the complaint.
Opposite parties 2 and 3 adopted the counter of opposite party No.1.
Opposite party no.4 did not file any counter.
Based on the evidence adduced i.e. Exs.A1 to A11 and the pleadings put forward, the District Forum dismissed the complaint.
Aggrieved by the said order, the complainants preferred this appeal.
Written arguments of appellants as well as respondents 1 to 3 filed.
The facts not in dispute are that the collection amount of Gudur Railway station dated 16-10-2002 amounting to Rs.3,14,736. was taken in a cash bag for depositing the same in the account of South Central Railway and kept inside the cash remittance room and this cash bag was found missing and immediately the said fact was brought to the notice of head cashier of the bank and Station Superintendent of Gudur Railway Station and other bank staff including Bank Branch Manager and R.P.F. and also lodged a report to the said incident on 17-10-2002 at 16.00 hours and registered a case in Crime No.166/2002. It is the complainants case that the bank authorities did not respond immediately and did not take any preventive action like raising alarm, searching the bank premises for tracing the missed cash bag with in the premises.
They did not inform the incident of theft to police on time. The Chief Commercial Manager, South Central Railway, Secunderabad issued a demand letter dated 18-5-2004 to opposite party No.3 requesting him to deposit Rs.3,14,736/- into the account of South Central Railway Secunderabad but opposite party No.3 refused to deposit the amount and gave a vague reply. Complainant No.1 brought the matter to the notice of Director General of Police, Government of A.P. and the Addl.Director General of Police, Railways issued a letter dated 28-1-2008 to complainant No.1 enclosing final report of Superintendent of Police dated 5-1-2008 along with final report of opposite party No.4 dated 30-4-2005 and the said report disclosed that Mr.Mallikarjunam kept the cash bag on the table of Head cashier of the bank at 11-20 a.m. and it was found missing at 11-40 a.m and no action was taken against the bank staff for their negligence.
The learned counsel for the appellant/complainant contended that the District Forum has dismissed the complaint on the ground of limitation ignoring the law laid down by the Apex court in State of M.P. v.Pradeep Kumar 2000 (7) SCC 372 wherein it was held that application for condonation of delay in filing appeal not accompanying the delayed application is not fatal. In 2011 (2) SCJ 238 in Dr.V.N.Srikhande v. Mrs. Anitasena Fernadenz in which the apex court held as follows:
A reading of the above noted provisions makes it clear that the District Forum, the State Commission and the National Commission are not bound to admit each and every complaint. Under Section 12(3), the District Forum is empowered to decide the issue of admissibility of the complaint. The District Forum can either allow the complaint to be proceeded with, which implies that the complaint is admitted or reject the same. Similar power is vested with the State Commission under Section 18 and the 12 National Commission under Section 22. If the concerned forum is prima facie satisfied that the complainant is a `consumer' as defined in Section 2(d) and there is a `defect', as defined in Section 2(f) in relation to any goods or there is `deficiency in service' as defined in Section 2(g) read with Section 2(o) and the complaint has been filed within the prescribed period of limitation then it can direct that the complaint may be proceeded with. On the other hand, if the concerned forum is satisfied that the complaint does not disclose any grievance which can be redressed under the Act then it can reject the complaint at the threshold after recording reasons for doing so. Section 24A(1) contains a negative legislative mandate against admission of a complaint which has been filed after 2 years from the date of accrual of cause of action. In other words, the consumer forums do not have the jurisdiction to entertain a complaint if the same is not filed within 2 years from the date on which the cause of action has arisen. This power is required to be exercised after giving opportunity of hearing to the complainant, who can seek condonation of delay under Section 24A(2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under Section 24A(1). If the complaint is per se barred by time and the complainant does not seek condonation of delay under Section 24A(2), the consumer forums will have no option but to dismiss the same.
Therefore, it is the discretion of the consumer fora whether to condone the delay or not based on the grounds mentioned in the condone delay application. In the instant case, it is an admitted fact that no petition was filed by the appellants/complainants seeking condonation of delay of 592 days and the date of theft was 17-10-2002 and the complaint was filed 3 years 7 months thereafter on 20-5-2006. This is an inordinate delay. At the earliest the National Commission in Vice Chairman, Delhi Development Authority Vs. O.P. Gauba reported in III (1995) CPJ 18 (NC) opined:
The grounds for delay are given because the order had to be examined from all aspects and at various levels before a decision to file this appeal could be given. In our view this does not constitute a valid and sufficient cause for the exercise of our discretion to condone the delay. Proof of sufficient cause is a condition precedent for the exercise of discretion. Inter office consultation for prolonged periods cannot constitute sufficient cause for condonation of delay. The delay cannot be condoned as a matter of generosity because the process of working in D.D.A. has resulted in the delay. The application for condonation of delay is dismissed and consequently the appeal is dismissed as barred by time.
Equally so in New India Assurance Company Vs. Satish Khanna reported in 2003 (1) CPR 52 the National Commission opined that Sufficient cause for condonation of delay has to be shown. Grounds of delay in the present case is as usual that file moved from one place to another in the office of the petitioner and then to the advocate and on that amount delay occurred. There is nothing new in these grounds and is being used in all cases whatever is the amount of delay. State Commission observed that the application of condonation of delay is drafted in a casual manner and there was no ground to justify the delay.
The Honble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay their Lordships observed in Oriental Aroma Chemical Industries Ltd.
Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459.
We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.
The expression "sufficient cause"
employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987) 2 SCC 107, N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 and 10 Vedabai v. Shantaram Baburao Patil (2001) 9 SCC 106.
In dealing with the applications for condonation of delay filed on behalf of the State and its agencies/instrumentalities this Court has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay Their Lordships dismissed the delay holding that the functionaries of Industrial Development Corporation shall not be absolved from the responsibility of the delay.
In a latest decision the Honble Supreme Court in Blawant Singh Vs. Jagdish Singh reported in (2010) 8 SCC 685 held:
Liberal construction of the expression `sufficient cause' is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances where the Court should condone the delay; equally there would be cases where the Court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect `sufficient cause' as understood in law. [Advanced Law Lexicon, P. Ramanatha Aiyar, 2nd Edition, 1997] The expression `sufficient cause' implies the presence of legal and adequate reasons. The word `sufficient' means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the Courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated.
We find it unnecessary to discuss the instances which would fall under either of these classes of cases. The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention.
In the light of latest view of the Honble Supreme Court this Commission has to consider whether the facts and circumstances of this case meets the sufficient cause or not.
The delay can only be condoned to advance substantial justice, and when the delay is not on account of dilatory tactics, want of bonafides, deliberate inaction or negligence on the part of appellant, it is liable to be dismissed.
The parties seeking relief has to satisfy the court that he/she has sufficient cause for not preferring the appeal within the time prescribed and the explanation has to cover the entire period of delay. A litigant cannot be permitted to take away a right which has accrued to his adversary by lapse of time. Proof of sufficient cause is a condition precedent for the exercise of discretion of jurisdiction vested in this Court under Section 15(a) of the Consumer Protection Act. The discretion conferred on this court is a judicial discretion and is exercised to advance justice and even if there is a strong cause for acceptance of the appeal that would not be a ground for condoning the delay. Consumer Protection Act provides for speedy redressal to consumer disputes. It follows that the delay cannot be allowed to occur in a routine way and sufficient cause should be made out with specific reasons given supported by material; and that the discretion for entertaining the appeals filed beyond the period allowed will not be exercised in a light and routine manner.
Therefore, we are of the considered view that there are no substantial reasons to interfere with the order of the District Forum based on limitation. Even on merits, we are of the considered view that the matter pertains to lost cash and there is no service rendered for consideration and this does not fall within the ambit of Consumer Protection Act, 1986, when fraud, cheating and theft are alleged, this Fora has no jurisdiction and when such issues are involved, they can be adjudicated only in a civil court.
With the aforementioned observations, this appeal is dismissed.
There shall be no order as to costs.
Sd/-PRESIDENT.
Sd/-MEMBER.
JM 16-5-2012