National Consumer Disputes Redressal
Hema Hitesh Shah & Anr. vs Hdfc Bank Limited on 13 April, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1016 OF 2019 (Against the Order dated 13/02/2019 in Complaint No. 1070/2016 of the State Commission Maharashtra) 1. HEMA HITESH SHAH & ANR. R/O. 4/64, ZALAWAD NAGAR JUHU LANE ANDHERI (WEST) MUMBAI 400 058 2. HITESH R. SHAH R/O. 4/64, ZALAWAD NAGAR JUHU LANE ANDHERI (WEST) MUMBAI 400 058 ...........Appellant(s) Versus 1. HDFC BANK LIMITED THROUGH ITS CHAIRMAN & MANAGER, LOAN AGAINST SHARES DEPARTMENT KAMLA MILLS COMPOUND TRADE WORLD BUILDING C-WING, 12 FLOOR SENAPATI BAPAT RAOD LOWER PAREL MUMBAI ...........Respondent(s)
BEFORE: HON'BLE MRS. JUSTICE DEEPA SHARMA,PRESIDING MEMBER HON'BLE MR. SUBHASH CHANDRA,MEMBER
For the Appellant : Mr. Devender Singh, Advocate For the Respondent : Ms. Romila Joshi, Advocate
Dated : 13 Apr 2022 ORDER
ORDER (ORAL)
1. The present appeal has been filed against the Order dated 13.02.2019 by which the application of the complainants / appellants herein, for condoning the delay in filing the complaint, was dismissed.
2. The admitted facts of the case are that the appellants had a joint account with the respondent bank from the year 1999 to 2000. Against that account the appellants had taken a loan and pledged their shares with the respondent bank. The pledged shares were sold by the respondent bank in December, 2008 and the same was intimated to the complainants / appellants vide letter dated 31.12.2008.
3. Those shares were sold by the respondent bank in December, 2008 and after adjustment of the loan amount, balance was credited in the joint account of the complainants. The complainants were also duly informed of the same in the year 2008. A complaint before the banking Ombudsman was also filed by the complainants / appellants in the year 2009 and vide communication dated 04.09.2009 the Ombudsman refused to interfere in the matter. The first complaint was filed by the complainants / appellants in the year 2015 before the State Commission. Along with that complaint no application seeking condonation of delay in filing the complaint was filed. The said complaint was however withdrawn by the complainants which was allowed by the State Commission vide its Order dated 03.05.2016 and on the request of the complainants liberty was given to them to file fresh one. Fresh Complaint No. 1070 of 2016 was filed by the complainants along with application for condonation of delay in filing the said complaint.
4. The State Commission, after hearing the parties at length and also considering the case-laws relied upon by both the parties, passed the impugned order wherein it had clearly been stated that the complaint was hopelessly barred by limitation and no reasonable grounds for condonation of delay of more than seven years exists and while dismissing the application, also dismissed the complaint.
5. This order is impugned before us alleging that the said order is perverse, illegal and liable to be set aside on the ground that the complainants had been in continuous communication with the opposite party / respondent bank and therefore the period of limitation continued to run and it was also continuing till the year 2014 when the opposite party finally refused to redress their grievance and it was then when the complainants had decided to file a complaint and it is therefore continuing till the year 2014 and the cause of action arose when the respondent finally refused to redress their grievances. The complaint was therefore much within time.
6. It is argued on behalf of the opposite party / respondent bank that the period of limitation for the cause of action arose in the year 2008, in which year the complainants were duly informed of the sale of the shares, which they have challenged under this complaint and therefore the complaint filed in 2015 and subsequently in 2016 were both barred by limitation.
7. We have given thoughtful consideration to the rival contentions and the arguments.
8. Cause of action means the bundle of facts which give rise to an issue between the parties. In this case the factum of sale of the shares pledged by the complainants with the respondent bank was an issue since this act of the bank is challenged by the complainant as deficiency in service. This act was since allegedly committed by the respondent bank in 2008, the cause of action clearly arose in the year 2008. Now the question is whether subsequent communications between the parties gave rise to fresh cause of action with each communication. The answer is 'No'. The Hon'ble Supreme Court in the case of Inder Singh Rekhi Vs. DDA (1988) 2 SCC 338 has expressly observed that 'a party cannot postpone the accrual of cause of action by writing reminders or sending reminders." and also in the case of Geo Miller & Co. (P) Ltd. Vs. Rajasthan Vidyut Uptadan Nigam Ltd. (2020) 14 SCC 643 has made an observation that, "Mere correspondence of the appellant by way of writing letters/reminders to the respondent subsequent to this date would not extend the time of limitation'. The act of communication between the parties after the cause of action has arisen does not amount to continuous cause of action. Whenever a cause of action starts running, it continues and the remedy is to be sought within the prescribed period of limitation. It is not the cause of action which was continuous one. The wrong was done by the respondent bank in the year 2008 for which the remedy had been sought by the complainants by filing the complaint initially in the year 2015. It is not such type of cause of action which is of continuous nature in the sense which the opposite party / respondent bank was required to continue to do. Certain causes of actions are continuous one and these are of the type which put other parties to continue abide by commitment. For example, we can say where a builder is required to complete the construction of the property and hand it over to the allottee within the stipulated period of time and once that period of limitation expires and the cause of action arose, that cause of action is continuous one and it continues till the possession is handed over to the allottee in terms of builder-buyer agreement. In this case an act of deficiency was already committed by the opposite party / respondent bank in the year 2008. The act of alleged deficiency was completed in 2008 only. It is not a continuous cause of action, it cannot be said that it continued after 2008. No communication can give rise to fresh cause of action The State Commission has rightly referred to the judgment supplied to them. We found no illegality or infirmity in the impugned order. The present appeal has no merit and the same is dismissed with no order as to costs.
......................J DEEPA SHARMA PRESIDING MEMBER ...................... SUBHASH CHANDRA MEMBER