CENTRAL BANK OF INDIA vs Gauda Devi

REVISION Petition no. 2017 of 2008 has been filed under section 21 (B) of the Consumer Protection Act, 1986 against the order dated 27.03.2008 passed by the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow ( ''the State Commission '') in appeal no. 610 of 2008.

THE brief facts of the case as per the respondent/ complainant are that the respondent is a resident of Mauza Gopala, Post Gopala, Tappa Matkopa, Pargana Haveli, Teshil Sadar, District Maharajganj. The respondent has savings bank account no. 18329 with the petitioner/ opposite party - Bank which was operated by the respondent. On 31.10.2006, the respondent has deposited in her savings bank account no. 18329, a cheque for Rs.70,060/ - while the Branch Manager of the petitioner Bank had assured that payment thereof shall be disbursed in about one week but owing to negligence and total indifference of the Bank, payment of the said cheque was never disbursed although the respondent was to perform her daughter ''s marriage which the respondent had to perform by taking loan etc., and owing to non -encashment of cheque by the petitioner, the respondent had to undergo serious physical and mental agony apart from facing serious social insult also.

RESPONDENT was constrained to serve a legal notice dated 20.03.2007 through her counsel on the Branch Manager of the petitioner Bank. In reply, the petitioner Bank admitted the loss of the said cheque in transit but inspite of this and owing to negligence and indifference of the petitioner Bank, the said cheque amount has not been paid to the respondent till date.

RESPONDENT has prayed that an order be passed in favour of the respondent, directing the bank to pay the cheque amount of Rs.70,060/ - along with simple interest @ 8% per annum from the date of deposit of the said cheque and Rs.20,000/ - being the compensation and Rs.10,000/ - as damages for the physical and mental agony undergone by her and Rs.5,000/ - being the costs of such proceedings, i.e., a total sum of Rs.1,10,060/ - with future interest and to pay the same immediately, and to grant such other or further relief which the District Forum deems fit and proper in the circumstances. Petitioner/ opposite party before the District Forum admitted that on 31.10.2006 the respondent/ complainant had deposited the cheque no. 606027 for a sum of Rs.70,060/ - and for its collection, the petitioner had entrusted the same to the United Air Express, Bom -Ind Courier Pvt., Ltd., Gorakhpur Branch Office, Siswa Bazar vide receipt no. 2611 dated 10.11.2006 for being sent to Central Bank of India, NBO Lucknow. The said cheque was to be encashed through Bank of India branch Lucknow.

AFTER sending the said cheque for collection, it was lost in transit and on learning about this, the petitioner Bank had written two letters dated 28.04.2007 to Bank of India intimating that the said cheque had been lost in transit somewhere and that they should beware of its misuse in a fraudulent manner and also to intimate the source from where the said cheque had been issued and copy of the aforesaid letter dated 28.04.2007 was sent to the Commercial Office, Lucknow and Regional Office, Gorakhpur and on 28.04.2007 itself, information was sought from the Courier Company about delivery status of the said cheque through courier.

VIDE letter dated 22.03.2007, the Branch Manager, Al -Rajahi Banking and Investment Corporation, Hafar Waran District, Riyadh Saudi Arabia was intimated about the loss of the said cheque while requesting them for issuing a duplicate thereof but no response to such letter was received from the Bank, again a letter dated 28.04.2007 was sent to the Bank but there was no response to this also. On 09.04.2007, the Branch Office had communicated through phone with Saudi Arabia in this behalf but in vain. On 12.06.2007 again, letters were sent to MBO, Lucknow, Courier Company and the Al -Rajahi Bank in Saudi Arabia and the said bank was intimated that a case had already been filed before the District Forum and requesting them to issue a duplicate cheque so that the amount could be disbursed to the respondent but the said bank has not issued the duplicate cheque nor has made it available to the respondent till date.

VIDE order dated 29.10.2007, the District Consumer Disputes Redressal Forum, Maharajganj ( ''the District Forum '') after hearing the counsel for the parties and going through the records of the case allowed the complaint by observing as under: ''''Complainant ''s case against the respondent Central Bank of India, Branch Jogian, District Maharajganj is partly granted to the effect that the complainant is entitled to recover the amount of aforesaid cheque being Rs.70,060/ - (Rupees seventy thousand and sixty only) from the respondent Bank and also to recover simple interest at the rate of 6% per cent annum on the cheque amount with effect from the date of cheque till the final realisation and also recover the sum of Rs.1,000/ - being costs of proceedings from the respondent Bank. The respondent Bank will pay the aforesaid amounts within 50 days to the complainant ''''.

AGGRIEVED by the order of the District Forum, petitioner filed an appeal before the State Commission. Before the State Commission, the petitioner had submitted an application under section 5 of the Limitation Act for condonation of delay. In the application, no period of delay has been mentioned. However, as per counsel for the petitioner, it is around four months. The reasons given for the delay are as follows: The complaint case no. 52 of 2007, Gauda Devi vs Branch Manager, Central Bank of India was decided on 29.10.2007 by District Forum Maharajganj, the copy of which was issued on 03.11.2007 which was sent to Bank by Shri Virendra Kumar Pandey, Counsel of the Bank in the same week of November, 2007 to Shri J C Das, the then Branch Manager. Shri J C Das was transferred from the Branch in or about second week of November 2007 to Audit Department. It is pertinent to mention here that the appellant Bank was served with the Show Cause Notice dated Nil on 12.03.2008 by District Forum, Maharajganj, in Execution Case no. 1 E/ 2008 for the date 28.03.2008 then the deponent enquired on telephone from Shri J C Das about the fate of the case aforesaid who told that the file of the case is kept in almirah of the bank and also informed that he could not contact the advocate as he was transferred from the Branch.

He also informed that on account of Deepawali Festival and his transfer too he could not inform to deponent about the aforesaid case. The deponent on 13.03.2008 got the file of the aforesaid case from the almirah and on 14.03.2008 wrote to the Regional Manager Office for sanction for filing the appeal which was informed to deponent on 20.03.2008 and the deponent was further informed to contact Shri B L Jaiswal, Advocate at Lucknow for filing the appeal. 21st and 22nd March 2008 was a holiday on account of Holi Festival as such the deponents contacted to Shri Jaiswal on 23.03.2008 and delivered the papers for filing the appeal. Shri Jaiswal, Advocate asked the deponent to come on 25.03.2008 for signatures on the appeal/ affidavits. The appeal was filed on 25.03.2008. The State Commission vide their order dated 27.03.2008 had dismissed the appeal filed by the petitioner by observing as under: ''''In the present case, the District Forum had passed its order on 29.10.2007 and its certified copy had been obtained on 03.11.2007 meaning about three/four days after passing of the said order but this appeal has been filed only on 25.03.208. In paragraph 3 of the affidavit sworn by Shri R K Acharya, mention has been made of ''''about the second week of November 2007 '''' but no specific date about the alleged transfer of Branch Manager J C Das had been mentioned but no plausible explanation has been given for the period between November 2007 to 20.03.2008. If any Government employees are transferred, they hand over the complete charge to such incumbent and only then they are deemed to have been relieved. It is argued on behalf of the appellant that Shri J C Das had kept the related case file in the almirah which was found only on 14.03.2008 but it was the duty of the respondent Bank to look into the pending cases and as to what action had to be taken in that behalf and in this manner, there has been a delay of nearly five months in filing this appeal and even if one month ''s time available for filing of such appeals is taken out, even then there is a delay of nearly four months which has not been explained anywhere. This makes it clear that the Bank had intentionally failed to file the appeal.

In view of the above discussions and keeping in view the arguments made by the learned counsel for parties and also in view of the evidence available on record relating to facts and circumstances of the case, the appeal is liable to be dismissed on the ground of having been filed late and on the basis of facts on record. The appeal filed by applicants/ appellants having been filed late is hereby dismissed. The order dated 29.10.2007 passed by the District Forum is upheld ''''.

DISSATISFIED by the order of the State Commission, petitioner has filed this present revision petition before us.

THE main grounds of the revision petition are that: The State Commission failed to appreciate the settled law regarding limitation that one Member has given a finding which was not considered by the other two Members and without hearing the matter in detail the appeal was dismissed. The State Commission did not consider the reasons explained for the delay in filing the appeal.

The State Commission failed to appreciate the reasons explained for delay in filing the appeal and the orders passed by the two Members of the Hon ''ble Forum is without any reasons nor any ground have been mentioned for dismissal of the appeal. There had been contradictions in the orders passed by the different Members of the State Commission. The two Members without hearing the appeal in detail on merits, whereas the other Member was inclined to hear the same on 30.04.2008 but the other Members in haste passed an order dismissing the appeal.

We have heard the learned counsel for the petitioner and the authorised representative of the respondent in person and have also gone through the records of the case carefully.

LEARNED counsel for the petitioner has admitted that there was a delay of about four months in filing the appeal and has urged that the Bank is a Government organisation and this delay is inherent in their working. No further justification was given for the delay.

AT the same time, it is also well settled that ''''sufficient cause '''' with regard to condonation of delay in each case, is a question of fact. The Apex Court In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), has laid down: ''''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 ''''.

FURTHER , Hon ''ble Supreme Court in Post Master General and others vs. Living Media India Ltd. and another (2012) 3 Supreme Court Cases 563 has held; ''''24. After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under;

''''29. It needs no restatement at our hands that the object for fixing time -limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.

Public interest undoubtedly is a paramount consideration in exercising the courts'' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the land losers facilitating their rehabilitation /resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the land losers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the land losers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest. '''' The Court further observed; ''''27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government. 29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red -tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.

Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay ''''.

THUS , in view of the facts stated above no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. Since, the State Commission has given a detailed and well -reasoned order which does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, present revision petition is hereby, dismissed with cost of Rs.10,000/ - (Rupees ten Thousand only). Petitioner is directed to pay Rs.5,000/ - directly to the respondent by way of demand draft within four weeks and the balance amount of Rs.5,000/ - be deposited 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 pay and deposit the said cost within the prescribed period, then it shall also be liable to pay interest @ 9% per annum till realization.

LIST on 11th April 2014 for compliance.