National Consumer Disputes Redressal
Sudha Katyal vs State Bank Of Patiala & 2 Ors. on 8 May, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2598 OF 2013 (Against the Order dated 15/04/2013 in Appeal No. 132/2013 of the State Commission Chandigarh) 1. SUDHA KATYAL W/O SH.SATISH KATYAL, R/O H.NO -3142,SECTOR-22-B CHANDIGARH ...........Petitioner(s) Versus 1. STATE BANK OF PATIALA & 2 ORS. THROUGH ITS REGIONAL MANAGER, SECTOR-7 BRANCH CHANDIGARH 2. STATE BANK OF PATIALA, THROUGH ITS AGM, STATE BANK OF PATIALA, SCO NO-99-107,SECTOR-8 CHANDIGARH 3. FIIT JEE CENTRE, THROUGH ITS MANAGER, CENTRE HEAD, SCO NO- 321-22, 1ST & 2NDFLOOR, SECTOR- 35-B CHANDIGARH ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Petitioner : Mr. Abhishek Kumar, Advocate For the Respondent : For the Respondent No.1 & 2: Mr. J.S.Lamba, Advocate
For the Respondent No.3: Ex-parte (vide order dated 21.02.2017)
Ms. Pooja, proxy counsel
Dated : 08 May 2018 ORDER
This revision petition has been filed by the petitioner Sudha Katyal against the order dated 15.4.2013 of the State Consumer Disputes Redressal Commission, UT Chandigarh (in short 'the State Commission') passed in FA No.132 of 2013.
2. Brief facts relevant for the decision of the present revision petition are that the petitioner's son took admission under coaching class run by respondent No.3 herein. The candidate left the session mid-stream and the petitioner/complainant requested the respondent No.3 to refund the two post-dated cheques of Rs.12,000/- and Rs.28,933/- totaling to approximately Rs.41,000/-. The instructions were also sent to the bank/respondent No.1 and respondent No.2 for not encasing these cheques. However, the respondent No.3 presented the cheques to the bank and got the payment as is evident from the account statement of the petitioner where clear entry of debit has been made on 03.02.2009. When the petitioner/complainant got the passbook entry completed on 01.03.2009, she got to know that the cheques have been paid by the bank to respondent No.3. The first complaint was filed on 03.02.2011 before the District Consumer Disputes Redressal Forum, (in short 'the District Forum'). The matter was progressing, however, the complainant filed an application for withdrawal of the present complaint for technical reasons with liberty to file the same again. The District Forum vide its order dated 26.04.2012 allowed the application as under:-
"In view of the statement made by the learned counsel for the complainant, this complaint is dismissed as withdrawn with liberty to file fresh complaint on the same cause of action before the appropriate Court/Forum/Authority/Commission."
3. Then the complainant filed fresh complaint on 31.5.2012. This complaint was dismissed by the District Forum on the ground of limitation vide its order dated 27.02.2013. The complainant preferred an appeal before the State Commission bearing No.132 of 2013 and the State Commission vide impugned order dated 15.04.2013 dismissed the appeal.
4. Hence the present revision petition.
5. Heard the learned counsel for the petitioner as well as the learned counsel for the respondent Nos.1 & 2. Respondent No.3 was proceeded ex-parte vide order dated 21.02.2017 of this Commission.
6. The learned counsel for the petitioner/complainant stated that cause of action has arisen when the complainant noted that the cheques for which request was made to respondent No.3 to return and respondent Nos.1 & 2 for stopping the payment, were actually paid. This happens when the passbook was got updated on 01.03.2009 and this revealed that the amounts were debited on 03.02.2009. Thus, the cause of action has arisen on 01.03.2009 and the first complaint was filed on 03.02.2011. Clearly the first complaint was filed within the permissible period of two years. The fora below are taking the cause of action as the date of letters written to respondents which cannot be taken as the date of cause of action, because, had the respondents complied with the request of the complainant, there would have been no complaint.
7. Learned counsel for the petitioner further argued that respondent Nos.1 & 2 in their reply had admitted that the cheques have been paid due to negligence of the bank and they have asked respondent No.3 to return the paid amount. This only shows that the case of the petitioner had merits and the complaint must have been decided on merits rather than on technical ground.
8. It was further argued by the learned counsel for the petitioner that the first compliant was withdrawn due to some technical reasons with liberty to file fresh complaint and the District Forum had permitted the same. Accordingly, fresh complaint was filed on 31.05.2012 on same cause of action. The District Forum calculated the delay period of 111 days taking the date of cause of action after 15 days from the date of letter/notice. The fact is that the delay should have been calculated only from 01.03.2009 when the payment of cheques came to the notice of the complainant or at the most it would be calculated from 03.02.2009, the date of payment of these cheques. When the permission was granted by the District Forum to file the fresh complaint and the fresh complaint was filed within the reasonable period then the delay would have been only considered from the date of order of the District Forum i.e. 26.04.2012 till 31.05.2012. The delay was clearly unintentional and therefore, the District Forum should have allowed the application for condonation of delay and should have decided the case on merits. The State Commission has also committed the same mistake. The State Commission should have allowed the appeal and should have remanded the matter for deciding the complaint on merits. The learned counsel further argued that when the first complaint was within the limitation, the delay for the second complaint should be counted from the date of order of the District Forum when the District Forum had given liberty to file the fresh complaint. Thus, the issue of limitation should not have been raised and the complaint should have been allowed to proceed to its logical conclusion.
9. On the other hand learned counsel for the respondent No.1 & 2 stated that no proper cause of action has been given in the application for condonation of delay filed before the District Forum. In fact, as it was a fresh complaint, the District Forum was duly entitled to examine the issue of limitation afresh and it was found that the delay was there and no proper justification was given for such delay and therefore, the District Forum has rightly dismissed the complaint on the ground of limitation. The State Commission has clearly observed that even the first complaint was filed after the expiry of limitation. The State Commission has also observed that though the first complaint was withdrawn on the basis of some technical defects, however, no technical defects have been revealed by the complainant. The learned counsel further stated that fact of the matter is that the complainant has sought many dates for filing her evidence but did not file the same and she feared that her evidence might be closed, therefore, she moved application for withdrawal of the complaint. The learned counsel further pointed out that there is no difference in the two complaints. If certain technical defects were to be removed, second complaint should have been substantially different from the first one.
10. The learned counsel for the respondent Nos.1 & 2 further stated that even if sufficient cause has been shown for delay, the consumer fora has the discretions to condone the delay or not and in the present case the District Forum and the State Commission have not found it expedient to condone the delay in the facts and circumstances of the case. To support his argument, the learned counsel relied upon the following judgment of the Hon'ble Supreme court in Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, wherein it has been observed;
"It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant."
11. I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the material on record. A perusal of the complaint shows that the following prayer was made in the complaint:-
"(i) OP No.2 may kindly be directed to refund the amount encashed i.e. Rs. ..............inspite of intimation on account of withdrawal of Master Nikhil Katyal from the Pinnical Programme from their institution.
AND/OR
(ii) Direction may kindly be given to respondent no.1 & 3 to restore the amount debited from the account of the complainant inspite of instructions given by the complainant not to honour the cheques.
(iii) Directions may kindly be given for the refund/restoration of amount with 18% interest from the date of debit/payment till its realization.
(iv) Rs.25,000/- may kindly be granted as litigation expenses.
(v) Any other relief, which this Hon'ble Forum may kindly be granted in favour of the complainant and against the OPs."
12. Cause of action has to be seen in relation to the prayer made in the complaint. The prayer was for remitting back the amount of the cheques into the account of the complainant. Thus, I find force in the arguments of the learned counsel for the complainant/petitioner that the cause of action would only arise when the complainant came to know that the amount has been debited from the bank account. The amount has been debited from her bank account on 03.02.2009 and the complainant came to know of this debit on 01.03.2009 when she got her passbook updated. Therefore, the complaint could have been filed upto 01.03.2011 and the same was filed on 03.02.2011. Thus, first complaint was filed in time and the finding of the State Commission in this regard cannot be sustained. I agree with the contention of the learned counsel for respondents No.1 & 2 that in the second complaint the District Forum is fully entitled to examine the issue of limitation afresh. Thus, the limitation would be counted from 01.03.2009 as observed above. Delay would run from 01.03.2011, however, the period from 01.03.2011 till 26.04.2012 shall stand condoned as for this period the complaint was pending before the District Forum and District Forum allowed the withdrawal of the complaint with liberty to file the fresh complaint. The period of delay from 26.04.2012 till 31.05.2012 is only of 35 days and the same should have been considered by the District Forum for condonation. As the delay has not been condoned in filing the second complaint and complainant has not got any opportunity to put forward her case before the District Forum or the State Commission in my view, the total delay of 35 days after exclusion of period of pendency of the first complaint deserves to be condoned, in the facts and circumstances of the case. Accordingly, the period of delay from 26.4.2012 till 31.05.2012 stands condoned at a cost of Rs.7,500/-to be deposited by the complainant with the Consumer Legal Aid Account of this Commission within a period of four weeks. This cost is being imposed on the complainant because she has unnecessarily created circumstances where the opposite parties had to resist the complaint twice. I also feel that once the written statement was filed by the opposite parties in the first complaint, the District Forum should not have allowed the withdrawal of the complaint without any cogent reasons, as basically there is no difference in both the complaints and the original complaint might have been decided on merits.
13. Based on the above discussion, the order dated 15.04.2013 of the State Commission as well as order dated 27.02.2013 of the District Forum are set aside and the matter is remanded to the District Forum for considering the complaint No.333 of 2012 on merits and decide the same within a period of six months after giving an opportunity of being heard to all the parties. Parties are directed to appear before the District Forum on 17.07.2018. The District Forum to proceed with the case only after the amount of Rs.7,500/- has been deposited with the Consumer Legal Aid Account of this Commission.
...................... PREM NARAIN PRESIDING MEMBER