ASSTT. GENERAL MANAGER, STATE BANK OF INDIA vs P.Ravindran

THE opposite parties in O.P. No. 299/98 on the file of the Consumer Disputes Redressal Forum, Thiruvananthapuram is the appellant. THE complainant alleged deficiency of service against the opposite parties as according to the complainant towards the cheque for Rs. 20,000/- the opposite parties disbursed only an amount less by Rs. 1,000/-. THE opposite parties sought to maintain that the complaint is not maintainable because of the earlier complaint filed by the complainant as O.P. 325/95 as well as the decision in the said O.P. and appeal. THE opposite party wanted the question of maintainability to be heard and the District Forum heard the matter and held that the complaint is maintainable as it is not barred by limitation.

IT is urged by the learned Counsel for the revision petitioner that the maintainability of the complaint was challenged on two grounds, one is that the complainant has no cause of action to bring the present complaint and the cause of action alleged in the present complaint as on 1.8.1997 is not true or acceptable. IT was also maintained by the learned Counsel that the complaint is barred by limitation. What is urged by the learned Counsel is, the prior complaint O.P. 325/95 alleging the same deficiency of service, was dismissed for default on 20.5.1996; complainant preferred an appeal as Appeal No. 1008/96. By the order in the said appeal the order of the District Forum was set aside on condition of payment of costs Rs. 1,000/- by the appellant/complainant. On payment of the said costs the case was restored to file by the District Forum, again the complaint came to be dismissed for default on 1.8.1997. From the said dismissal the complainant preferred an appeal for the second time as Appeal No. 80/98 that too was dismissed on 2.3.1998. Now the present complaint is based on the allegation that the complainant has got a cause of action on 1.8.1997, the date of dismissal of the previous complaint after remand. What is urged by the learned Counsel for the revision petitioner is, by alleging a new cause of action in the present complaint he cannot escape from the bar of limitation, and it is also maintained that the complainant even on the basis of the facts alleged by the complainant, cannot get a fresh cause of action on 1.8.1997. On the other hand the learned Counsel for the respondent sought to support the decision of the District Forum relying on the decision of the State Consumer Disputes Redressal Commission, Gujarat reported in 1992 (2) CPR 685, wherein it is held there is no limitation for deficiency of service; and it is also urged by the learned Counsel, it is open to the complainant to allege a particular cause of action and the maintainability of the complaint has to be adjudicated on the basis of the said allegation as to cause of action.

The fact that the earlier complaint O.P. 325/95 came to be dismissed, against the said dismissal the complainant preferred Appeal 1008/96, the appeal was allowed on condition of payment of Rs. 1,000/- as costs which was remitted and the District Forum on payment of cost the complaint was restored, and that again the complaint was dismissed on 1.8.1997 for default and the complainant again preferred an appeal as Appeal 80/98 which too was dismissed are admitted. It is the same set of act as is alleged in the earlier complaint to constitute deficiency as the basic case of complainant in this complaint also except that the complainant has alleged a fresh cause of action on 1.8.1997. The allegation of the complainant as to the failure to disburse it Rs. 1,000/- towards the cheque amount is the basis for the contention that there is deficiency of service, the cause of action is the failure of the opposite parties to pay Rs. 1,000/- also towards the cheque amount. Here also the deficiency is not the dismissal of the complaint but the failure of the opposite party to disburse the said amount. The mere dismissal of a proceeding whether for default or on merit cannot confer a fresh cause of action except, perhaps on the allegation of fraud or such other vitiated circumstance against the said dismissal. As per the present allegations the cause of action which the complainant cannot survive the disposal made by the Consumer Forum as well as Appellate Court. If the argument of the complainant is to be accepted there can be recurring complaint even after the appeals are dismissed. Multiplicity of proceedings has to be discouraged as the policy of law. Therefore, the very case of the complainant that he would get a fresh cause of action on 1.8.1997 cannot be accepted. On that ground itself it has to be held that the complaint is not maintainable.

AS regards the question of limitation, the original cause of action is barred by limitation according to the revision petitioner and if the complainant could not get a fresh cause of action on the dismissal of the earlier complaint, according to the learned Counsel for the revision petitioner, since the present complaint is filed two years the cause of action as per Section 24-A of the Consumer Protection Act of 1986, the complaint is barred by limitation. The decision relied on by the learned Counsel for the appellant the one reported in 1992 II CPR 685 since was rendered before the amendment to the Consumer Protection Act in 1993 by which Section 24-A was enacted and incorporated in the Consumer Protection Act, the said decision cannot be understood to mean that it has considered the effect of Section 24-A of the Consumer Protection Act. For a complaint on the basis of deficiency of service also it should have a cause of action. It is on the basis of the said cause of action that the complainant could maintain the complaint on the ground that there is deficiency of service. We are of the view that as per the Section 24-A of the Consumer Protection Act since the complaint has to be filed within two years of the cause of action and the complaint admittedly having been filed after the said period from the original cause of action, the complaint is barred by limitation also. In that view the revision is to be allowed. In the result, the revision is allowed, there will be no order as to costs in this revision. Revision allowed.