National Consumer Disputes Redressal
Shantilata Das vs Icici Bank Ltd. on 29 October, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION No. 3544 of 2013 (From the order dated 16.01.2012 of the Odisha State Consumer Disputes Redressal Commission, Cuttack in First Appeal no. 590 of 2009) Shantilata Das CL 23, V S S Nagar Bhubneshwar 7 District Khurda Lawful attorney of Petitioner Shri Sangram Keshari Das Versus ICICI Bank Ltd 184, 3rd Floor, Kedarson Building Janpath Kharvela Nagar Respondent Unit -3, Bhubneshwar 1 BEFORE: HONBLE MR JUSTICE V B GUPTA PRESIDING MEMBER HONBLE MRS REKHA GUPTA MEMBER For the Petitioner Mr Biraja Mahapatra, Advocate Pronounced on 29th October 2013 ORDER
REKHA GUPTA Revision petition no. 3544 of 2013 has been filed under section 21 (b) of the Consumer Protection Act, 1986 against the order dated 16.01.2012 of the Odisha State Consumer Disputes Redressal Commission, Cuttack (the State Commission) in First Appeal no. 590 of 2009.
The facts asgleaned from the order of the District Consumer Disputes Redressal Forum, Khurda, Bhubneshwar (the District Forum), are that the petitioner was the legal attorney of Shri Sangram Keshari Das. Shri Das had purchased a car (Travera) bearing registration no. OR 02 AD1710 to maintain his livelihood for a sum of Rs.6,80,850/- availing finance of Rs.5,47,000/- from the respondent the Bank. The same had to be repaid in 60 EMIs at the rate of Rs.10,725/-.
The loan amount was being repaid regularly and the loanee could not pay the three EMIs from 01.12.2006 to 01.02.2007. The loan was to be liquidated by 01.10.2009. On 07.02.2007. A demand was made by the Bank that a sum of Rs.33,525/- was due to be paid towards the loan amount. The petitioner wanted to deposit this amount but it was not accepted by the Bank. In the meantime, the vehicle was repossessed by the Bank on account of outstanding dues payable by the petitioner and the hypothecation agreement was also terminated. The repossession of the vehicle was made unlawfully by the help of muscle men without prior notice, hence, the petitioner was entitled to get compensation. It was further stated in the complaint that the loanee had made the down payment of Rs.1,20,000/- at the time of taking the loan and paid 14 EMIs from 01.11.2004 to 01.12.2005 at the rate of Rs.10,725/-. Then the Bank voluntarily granted top up loan of Rs.60,000/- and the entire loan was fixed to be paid in 10 EMIs at Rs.11,175/- each. Thus after repayment of the loan, the seizure of the vehicle having been made and the case has been filed.
The case of the Bank according to their written version is that the Bank released the loan amount of Rs.5,13,500/- with the agreement to repay the same at the rate of Rs.11,175/- in 60 EMIs. The petitioner was defaulter of Rs.44,700/- till 01.02.2007 i.e., four instalments. Hence, the vehicle was repossessed rightly and subsequently it was sold by the Bank to realise the loan dues.
The District Forum while allowing the complaint gave the following order:
The complaint is hereby allowed ex parte against the Bank and dismissed ex parte against OP no. 2. The Bank is directed to refund the balance sale proceeds to the petitioner in respect of the vehicle which was sold after taking repossession having adjusted the sum of Rs.44,700/- towards the loan amount which was said to be due from the petitioner. The Bank is further directed to pay compensation of Rs.5,000/- to the petitioner for having repossessed the vehicle with the help of muscle men without any prior notice to the petitioner and detained the sale proceeds in respect of the vehicle after selling the same for a long time. Litigation cost is assessed at Rs.1,000/-. The entire sum be paid by the Bank within one month from the date of communication of this order, failing which they shall pay interest at the rate of 9% per annum over the entire amount till the date of payment.
Aggrieved by the order of the District Forum, the respondent Bank filed an appeal before the State Commission. The State Commission in their order observed that, when the appeal was taken up for hearing nobody appeared on behalf of the petitioner/ complainant. Learned counsel appearing on behalf of the Bank submitted that the petitioner is in no way connected with the hirer of the vehicle Sangram Keshari Das. She is the wife of one Sisir Kumar Das. The relationship of Sangram Keshari Das, who had availed the loan with the present petitioner Shanti Lata Das is not known, nor has it been disclosed. He submitted that when admittedly there was default in payment of the EMI as per the agreement entered into between the loanee and the Bank, the Bank was empowered to repossess the vehicle, and for realisation of the outstanding loan amount, the Bank being the owner of the vehicle and the person to whom the finance was made being the hirer, had every right to sell the vehicle. That is what has happened in the present case.
We entirely agree with Mr Das and in our considered opinion, no deficiency has been committed by the Bank in the matter of repossession and sale of the hypothecated vehicle, and the impugned order passed by the District Forum cannot be sustained.
In the result, therefore, we allow the appeal, set aside the impugned judgment and order dated 19.11.2008 passed by the District Forum, Khurda at Bhubaneswar in CD case no. 124 of 2007 and direct dismissal of the said CD case.
LCR be sent back forthwith.
Hence, the present revision petition.
The impugned order was passed on 16.01.2012 and the revision petition was filed on 03.10.2012. As per the office report, there is a delay of 536 days. However, no application for condonation of delay has been filed.
We have heard the learned counsel for the petitioner and have also gone through the records of the case carefully. Counsel for the petitioner still argues that there is no delay in filing the revision petition and has drawn our attention to paragraph 9 of the revision petition wherein it has been stated that the petitioners counsel on 13.08.2013 wanted to ascertain the position of the case as he had never received any notice from the State Commission. On inquiry if transpired only on that day that the matter was decided on 16.01.2012 by the State Commission headed by Justice A K Samantray.
However, there is an office report on the record. This is based on the report received from the State Commission, Odisha. Secretary, Odisha State Commission in his letter dated 09.10.2003 has intimated that the free copy of the impugned order dated 16.01.2012 passed in appeal no. 590 of 2009 was collected by the appellants advocate on 20.01.2012 and sent to the Shantilata Das the petitioner immediately on 01.03.2012. If the limitation is to be calculated from 01.03.2012, the date on which the certified copy of the order was sent by post by the State Commission, then also there is a delay of 491 days. Counsel for the petitioner has failed to explain the delay.
The petitioner has failed to give reasons for the day-to-day delay. The petitioner has failed to provide sufficient cause to condone the delay of 491 days. This view is further supported by the following authorities:
The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held that:
It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras.
In Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held:
The party should show that besides acting bonafide, 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. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005].
In Ram Lal and Ors.
Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, 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.
Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that;
There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.
In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been observed:
We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.
Accordingly, we find that there is no sufficient cause to condone the long delay of 491 days in filing the present revision petition. Consequently, the present revision petition being time barred by limitation and is dismissed with a cost of Rs.10,000/- (rupees ten thousand only).
Petitioner is directed to deposit the cost of Rs.10,000/- by way of demand draft in the name of Consumer Legal Aid Account of this Commission within four weeks from today. In case the petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.
List on 6th December, 2013 for compliance.
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[ V B Gupta, J.] Sd/-
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[Rekha Gupta] Satish