BANK OF BARODA vs VIVEK MITTAL

THE present appeal, filed by the appellant, under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act'') is directed against order dated 1.5.2003 passed by District Forum (Central) Maharana Pratap Bus Terminal I.S.B.T., Kashmere Gate, Delhi, in Complaint Case No. 83/2003 entitled Shri Vivek Mittal v. Bank of Baroda.

THE facts, relevant for the disposal of the present appeal, briefly stated, are that the respondent Shri Vivek Mittal, in his capacity as Proprietor of M/s. Jaypee Corporation, R-15, Reeta Block, Hemraj Shopping Centre, Shakarpur, Delhi had filed a complaint under Section 12 of the Act before the District Forum averring therein that the respondent was having a Current Account, bearing No. 1833 in the appellant Bank (erstwhile the Banaras State Bank Limited). It was stated that the respondent had deposited a cheque, bearing No. 0118645 dated 31.7.2000 for Rs. 70,564/-, drawn on State Bank of India, Jhansi Branch in favour of the respondent on 1.8.2000 for being credited in its above mentioned Current Account, being maintained by the Banaras State Bank Limited, which subsequently merged with the appellant Bank. It was stated that in the ordinary course of business the amount of the above said cheque should have been credited in his above account within four or five days, but the amount of that cheque was not credited in the account of the complainant till the filing of the complaint which was filed on 27.7.2002. It was stated that the respondent had sent a number of reminders, had also personally visited the office of the appellant Bank and sent notices but all the efforts of the respondent failed to elicit any response from the appellant Bank. Alleging deficiency in service on the part of the appellant Bank it was prayed by the respondent in the complaint, filed by him, that the appellant be directed to pay the amount of the cheque to the respondent together with compensation of Rs. 20,000/- for harassment. THE respondent had also claimed litigation expenses, amounting to Rs. 10,000/-. The claim of the respondent in the District Forum was resisted by the appellant Bank and in the reply/written version, filed on behalf of the appellant Bank, while admitting the deposit of the cheque in question on 1.8.2000, it was stated that the cheque in question was cleared by the State Bank of India, Jhansi Branch and a draft dated 10.8.2000 for a sum of Rs. 70,224/- was issued on account of the proceeds of the said cheque which was lost in transit as a result of which the proceeds of that draft could not be credited in the account of the respondent. It was further stated that in the meantime the Banaras State Bank Limited was placed under moratorium for a period of 9 months and thereafter was merged with the appellant Bank. It was stated that on receipt of notice from the District Forum the matter was taken up with the State Bank of India, Jhansi Branch and a request was made for the issue of a duplicate draft which was received on 5.10.2002 and thereafter the amount was credited in the account of the respondent on 9.10.2002. It was stated in the reply/written version that there was no deficiency in service on the part of the appellant Bank and that the complaint, filed by the respondent, deserved to be dismissed.

The learned District Forum vide impugned order has held that there was gross negligence on the part of the Banaras State Bank Limited of which the appellant is a successor body and on the basis of the above finding the learned District Forum has directed the appellant to pay interest @ 12% p.a. on the amount of Rs. 74,564/- from 15.8.2000 to 8.10.2002. The learned District Forum has also awarded a compensation of Rs. 10,000/- together with cost of litigation amounting to Rs. 1,000/-. Feeling aggrieved, the appellant has preferred the present appeal under Section 15 of the Act.

WE have heard the learned Counsel for the appellant at length on the question of admission of the present appeal and have also carefully gone through the documents/material on record. In terms of the provisions contained in Section 15 of the Act, a person, aggrieved by an order, made by the District Forum, can prefer an appeal against such order to the State Commission within a period of 30 days from the date of the order. However, proviso to Section 15 of the Act provides that the State Commission may entertain an appeal even after the expiry of the above said period of 30 days, if it is satisfied that there was ''sufficient cause'' for not filing the same within the above said period. The words ''sufficient cause'', occurring in proviso to Section 15 of the Act, are of utmost significance. As per settled law, culled out from various judicial decisions, the above expression ''sufficient cause'', though deserves to receive a liberal interpretation, yet, a just and equitable balance has to be maintained between the right secured by the respondent as a result of expiry of the prescribed period of limitation and the injustice of depriving the appellant of adjudication of his grievances on the merits of his appeal for causes beyond his reasonable control, which means the cause is bona fide and beyond the control of the appellant. Though, no hard and fast line can be drawn as to what affords ''sufficient cause'' in a given case, yet, again, as per settled law, any cause which prevents a person from approaching the Court within time is ''sufficient cause''. In doing so, it is the test of a reasonable man in normal circumstances which has to be applied. Admittedly, the present appeal has not been filed by the appellant within the prescribed period of 30 days because the order being impugned in the present proceedings was passed by the learned District Forum on 1.5.2003 and the present appeal has been filed by the appellant on 29.7.2003. Therefore, the question requiring consideration at the very threshold is as to whether the appellant has shown ''sufficient cause'' for not filing the appeal in time within the meaning of proviso to Section 15 of the Act.

THE appellant along with the appeal has also filed an application seeking condonation of delay in filing the present appeal. THE operative portion of the above said application, filed by the appellant, for condoning the delay in filing the present appeal reads as under: "For the reasons disclose in the accompanying affidavit it would be expedient and also in the interest of justice to condone the delay occurred in filing the above appeal against the impugned order dated 1.5.2003 passed in Case No. 83 of 2003 Vivek Mittal v. Bank of Baroda, issued the same on 19.5.2003 and the same was received on 5.6.2003 by the appellant because there is no deliberate mistake on the part of the appellant the delay if any is occurred in due course of business in obtaining approval from the higher authorities in submitting the above appeal, otherwise the appellant has to suffer an irreparable loss." On a perusal of the contents of the above para it is apparent that certified true copy of the order, being impugned in the present proceedings, was received by the appellant on 5.6.2003 and if the period of limitation for filing the appeal is to be computed, as commencing from the date of communication of the order, as has been held by the Hon''ble Supreme Court in case Housing Board, Haryana v. Housing Board Colony Welfare Association and Others, reported as III (1995) CPJ 28 (SC), the present appeal should have been filed by 7.7.2003 as 6.7.2003 was a general holiday due to being Sunday. The same as already stated, has been filed much beyond the prescribed period of limitation on 29.7.2003. The reasons assigned for not filing the appeal as stated in the supporting affidavit of Shri B.L. Gogia, Manager of the appellant Bank virtually are no reasons in the eyes of law because no satisfactory explanation in the above said affidavit has been given for the delay occurred after 13.6.2003 except saying that the appellant Bank was under the impression that the time for filing the appeal was 60 days. It has been stated in the above said affidavit that due to lack of legal knowledge the required proper steps for filing the appeal could not be taken.

DELAY in filing the appeal cannot be condoned as a matter of generosity. Proof of ''sufficient cause'' is a condition precedent for the exercise of such discretion by the appellate authority. In our above views we stand fortified by a decision of the Hon''ble National Commission in case Vice-Chairman, Delhi Development Authority v. O.P. Gauba, reported as III (1995) CPJ 18 (NC)=1986-96 CONSUMER 2731 (NS).

IN the presence of the above facts and the position explained above in our opinion, whatever liberal interpretation might be put on the words ''sufficient cause'', it would be impossible for us to hold that there was no negligence on the part appellant. IN our opinion, as a matter of fact, the appellant has miserably failed to show ''sufficient cause'' for condoning the delay in filing the present appeal and, therefore, the application, filed on behalf of the appellant, for condoning the delay in filing the present appeal is hereby rejected. The present appeal, filed by the appellant, besides being barred by limitation is also devoid of substance on merits because it is not in dispute that the respondent Shri Vivek Mittal, Proprietor of M/s. Jaypee Corporation had deposited a cheque for Rs. 70,564/-, drawn on State Bank of India, Jhansi Branch in favour with the Banaras State Bank Limited on 1.8.2000. The Banaras State Bank Limited subsequently was merged with the appellant Bank in the month of July, 2002. The amount of the cheque in question, which in the ordinary course should have been credited in the current account of the respondent within a week, was not credited and the reminders, requests, personal visits and even the notices given by the respondent failed to yield any result. It was only after the respondent had filed a complaint that the amount in question after a lapse of more than two years was credited in the current account of the respondent. In all fairness, the correctness of the above facts is not being disputed even before us by the learned Counsel for the appellant. Due to gross negligence/deficiency in service on the part of the appellant Bank the respondent was deprived of the use of the amount of which the respondent was legitimately entitled. The amount of the cheque was made available to the respondent only on 9.10.2002. The appellant Bank is a Nationalised Bank and is thus not an ''individual'' but a ''State'' within the meaning of Article 12 of the Constitution. The concept of ''the State'' is that of a ''Welfare State'', the primary concern of which is the well-being of the persons and not to harass them. As a matter of fact, the appellant Bank should have honoured the decision of the learned District Forum with grace but instead of adopting that course of action has chosen to file this frivolous appeal which deserves to be discouraged with a heavy hand.

In view of the above discussion, the above mentioned appeal, filed by the appellant, is dismissed with costs. Costs quantified at Rs. 2,000/- to be paid by the appellant Bank to the State Legal Services Authority, New Delhi. Within 30 days from the date of receipt of this order. The appellant Bank is further directed to pay to the respondent the amount in terms of the order of the District Forum within 30 days from the date of this order, failing which the respondent would be at liberty to file an application under Sections 25/27 of the Act for the implementation of these orders before the concerned District Forum, as the respondent may be advised. The present appeal, filed by the appellant, stands disposed of in above terms. Appeal disposed of.