State Consumer Disputes Redressal Commission
Mr. Shridhar Narsayya Samala vs Allahabad Bank on 6 September, 2019
A/16/897 1/6
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
APPEAL NO. A/16/897
(Arisen Out of order dated 10/06/2016 in Complaint No.39/2015 of District Forum
Central Mumbai)
MR.SHRIDHAR NARSAYYA SAMALA,
Residing at:
Gandhi Nagar, D.S. Road,
Room No.C/21, Worli,
Mumbai 400 013. ........Appellant(s)
Versus
1. ALLAHABAD BANK,
Shri Krupa Building,
15, Taikal Wadi,
Near Dadar Vidya Mandir School,
Matunga (West),Mumbai 400 006.
2. THE ZONAL OFFICER,
Manish Commercial Centre,
216-A, Annie Besant Road,
Worli, Mumbai 400 025.
3. THE BRANCH MANAGER,
Allahabad Bank, Shri Krupa Building,
15, Taikal Wadi,
Near Dadar Vidya Mandir School,
Matunga (West), Mumbai 400 006.
4. THE CHAIRMAN AND MANAGING
DIRECTOR, (Allahabad Bank),
Head Office, 2, Netaji Subhash Road,
Kolkatta - 700 001, West Bengal.
5. MAHADEV NIMBALKAR,
Worli B.D.D. Chawl No.104/16,
Worli, Mumbai 400 018.
6. SMT.RAJASHRI K. VALAVI,
Building No.117/1, B.D.D. Chawl,
Worli, Mumbai 400 018. ......Respondent(s)
A/16/897 2/6
BEFORE:
Mr.Justice A.P. Bhangale - President
Mr.D.R. Shirasao - Judicial Member
For the Advocate Mr.R.R. Ved.
Appellant(s):
For the Advocate Mr.V.N. Ajikumar for
Respondent(s): respondent nos.1 to 4.
Advocate Mr.M.D. Tiwari for
respondent no.4.
ORAL ORDER
Per Hon'ble Mr.Justice A.P. Bhangale, President:
(1) Advocate Mr.R.R. Ved is present for appellant. Advocate Mr.V.N. Ajikumar is present for respondent nos.1 to 4. Heard submissions.
(2) This appeal is against dismissal of the complaint in Consumer Case No.39/2015 by Ld.District Consumer Disputes Redressal Forum, Central Mumbai on 10/06/2016 on the ground that the reason for condonation of delay was not satisfactory or sufficient.
(3) Brief facts of the case are that the complainant who was independent who purchased a flat had filed complaint on the ground that he was approached by one Shri Mahadev Nimbalkar (Opponent No.5) with the proposal that complainant will get flat in the auction of Allahabad Bank dated 15th October, 2011 at low price. Complainant had informed about his financial capacity that he can purchase the flat upto Rs.42,00,000/-. He had executed authority in favour of Smt.Rajashri K. Valavi (Opponent no.6) and also handed over demand draft in the sum of Rs.3,50,000/- and documents. Smt.Rajashri K. Valavi had made offer of Rs.55,00,000/- on behalf of complainant who told complainant that he could purchase for Rs.55,00,000/-. On 20th October, 2011 complainant was advised by A/16/897 3/6 the Bank Manager and Smt.Rajashri K. Valavi to submit letter for extension of time for payment of the bid amount. Complainant felt that he had cheated and he had issued legal notice dated 29th December, 2014 which was replied on 5th January, 2015, 7th January, 2018 and 8th January, 2015. Complainant felt that there was deficiency in service and unfair trade practice and had applied for refund of amount in the sum of Rs.3,50,000/- with interest and provisional fees in the sum of Rs.45,000/- and compensation for mental agony and litigation costs.
(4) It is the case of the complainant that he had filed Criminal Writ Petition No.3861 of 2013 before the Hon'ble High Court which was disposed of by passing following order:
"Heard.
2. Perused the complaint, report of the Investigating Officer. Considered the documents placed on record. We have considered the submissions of the learned counsel for the petitioner and learned counsel for respondent no.4.
3. Without expressing any opinion on merits of the allegations, we are of the view that the petitioner may adopt alternative remedy in respect of the grievance that the complaint was not registered by the police. At this stage, we are not inclined to exercise our extraordinary writ jurisdiction.
4. Petition is disposed of."
This order was passed on 20th February, 2014. By this order it is submitted that the complainant was entitled to avail of alternative remedy in respect of grievances stated as above. However, A/16/897 4/6 Ld.District Forum below making reference to few rulings concluded that delay was not properly explained by the complainant and held that complaint was barred by limitation.
(5) Ld.Avocate for the complainant has made reference to decision of the Hon'ble National Commission in case of Uma Shankar Bhatt V/s. Punjab & Sind Bank & Ors., reported in I(2008) CPJ 31(NC), which is decided by the Hon'ble National Commission under the provisions of the Consumer Protection Act, 1986. In that case criminal case was pending against Branch Manager of the Bank and Complainant had requested the Bank to refund the amount fraudulently transferred from his account and delay in filing the complaint in that case was condoned and Hon'ble National Commission has held that pending complaint is required to be heard and decided on merits.
(6) While according to Ld.Advocate for the respondent in view of the Provisions of Section 8, 34 and 35 of The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('SARFAESI Act' in short), Consumer Forum would have no jurisdiction to entertain the complaint and decide it on merits.
(7) The submission is attractive in nature but it is not acceptable on the ground that object of the SARFAESI Act is for recovery of debts due to banks and financial institutions and matters connected therein. While object of the Consumer Protection Act, 1986 is to better protect the interest of Consumers and to settle the consumer dispute and decide matters connected therein. In the present case it appears that complainant had made grievance regarding deficiency in service and unfair trade practice and that the complainant had A/16/897 5/6 approached Hon'ble Bombay High Court that Criminal Writ Petition No.3861 of 2013 decided on 20th February, 2014. The Hon'ble Bombay High Court expressed view that Petitioner may adopt alternative remedy in respect of the grievance that the complaint was not registered by the police. The Hon'ble High Court at that stage were inclined not to exercise extra ordinary writ jurisdiction. In view of this order it appears that the complaint was filed before the Ld.District Forum below, calling upon the consumer Forum to decide the same on merits after hearing the delay condonation application. In fact, looking into the date of order of the Hon'ble High Court passed in Writ Petition No.3861/2013 on 20th February, 2014 and the fact that consumer complaint was lodged on 18/02/2015 the Bar of limitation u/sec 24A of the Consumer Protection Act, 1986 was not attracted. But, on account of abundant precaution complainant may have filed an application for condonation of delay, seeking condonation of delay of 489 days. Be that as it may. The time spent in litigation, particularly when Writ Petition was pending before the Hon'ble Bombay High Court is excusable as a ground for condonation of delay which appears to have been overlooked by the Ld.District Forum below.
(8) Looking to Section 3 of the Consumer Protection Act, 1986, when a complaint is lodged either regarding any deceptive or unfair trade practice or deficiency in service, such a complaint needs to be heard on merits according to law by the Consumer Forum concerned. Section 3 provides that the remedy before Consumer Forum is an additional remedy and not in derogation of the provisions of any other law for the time being in force. Thus, intention of the legislature does allow the complainant under the Consumer Protection Act to raise a consumer dispute if such a dispute is raised A/16/897 6/6 within two years from the date of accrual of cause of action, it must be entertained. In the present case, bearing in mind the fact that the Hon'ble Bombay High Court granted liberty to the petitioner to adopt alternative remedy in respect of his grievances which police had not entertained the complainant was not precluded from appearing before the Consumer Forum to get the decision on merits in respect of consumer dispute raised by him. That being so, in the facts of the case, considering that time has been spent in litigation before Hon'ble Bombay High Court would be a valid excuse for not coming before the consumer forum earlier than the date of decision by the Hon'ble Bombay High Court, i.e. on 20th February, 2014. We must direct that the delay ought to have been condoned in this case and hence, we allow the appeal by condoning the delay and setting aside the impugned order. We direct Ld.District Forum to decide the complaint on merits in accordance with law. Parties to appear before the Ld.District Forum on 11/10/2019 at 10.30 a.m. No further notice will be given to the parties.
Pronounced on 6th September, 2019 [Justice A.P. Bhangale] President [D.R. Shirasao] Judicial Member emp