Cuttack Gramya Bank And Anr. vs Benguli Sasmal

REVISION Petition No. 588 of 2011 has been filed under Section 21(b) of the Consumer Protection Act 1986 (short, ''Act'') against the impugned order dated 13.11.2009, passed by Orissa State Consumer Disputes Redressal Commission, Cuttack (short, "State Commission") in CD. First Appeal No. 750/2007. Brief facts of the case as per respondent/complainant are that the respondent/complainant for the safe custody of her surplus income opened a Savings Bank Account No. 3854 on 7.9.1999 in the Sankhatras Branch of Cuttack Gramya Bank, on depositing a sum of Rs. 500 for the first instance and went on operating the account till 15.11.1999 on which date the respondent deposited a sum of Rs. 25,000 and she was granted a valid and proper receipt by the petitioners/opposite parties in token of her such deposit.

AS on 15.11.1999, a sum of Rs. 26,617 was shown outstanding in the respondent''s savings account and the same was also duly recorded by the petitioners in the Savings Bank Pass Book, granted to the respondent. While the matter so stood some times during March, 2000, the petitioners took away from the respondent the Savings Bank Pass Book and the counterfoil receipt granted to her on 15.11.1999 for the purpose of verification and investigation on the allegations of fraud practised by its employees i.e. the Field Officer, the Cashier and the Peon of the Bank for which investigation was going on by the local police on the FIR lodged to that effect. The respondent handed over the Pass Book and counterfoil in receipt to the petitioners without any objections.

THEREAFTER , the respondent could not operate the Bank Account for years together for want of Pass Book. Despite repeated approaches of the respondent, the petitioners did not return back the Pass Book and the counterfoil receipt on the pleas that investigation is still going on. Only sometime during the year 2005, the petitioners finally returned back the counterfoil receipt and the Pass Book but surprisingly the petitioners did not allow the respondent to operate the account and to withdraw any amount from the account As the respondent was refused to withdraw any money from her Savings Bank Account, the respondent was forced to incur loans from local persons on payment of high interest to meet her bare necessaries and, therefore, suffered material loss, mental agony and harassments of irreparable nature.

BESIDES the savings amounts which the respondent deposited in her Savings Bank Account, the respondent also had kept a sum of Rs. 20,658 as fixed deposit and she was also given a fixed deposit certificate by the petitioners. The petitioner No. 2 in consideration of the urgent need of the respondent allowed her on 5.9.2006 to operate the Saving Bank Account No. 3854 by depositing the encashed Fixed Depositing amount of Rs. 20,658 in the aforementioned Account No. 3854, whereafter the respondent had withdrawn a sum of Rs. 20,000. In spite of the demands of the respondent to show the balance in her Pass Book including Rs. 25,000 which the respondent deposited validly and properly on 15.11.1999, the petitioner No. 2 expressed his helplessness and inabilities on the grounds of pendency of litigation in the Court for the fraud committed by its employee.

ON 11.9.2006, though the respondent again approached the petitioner No. 2 to allow to withdraw Rs. 10,000 from her savings money, the petitioner No. 2 refused the same, on the ground that the deposit of Rs. 25,000 made on 15.11.1999 has not yet been taken into the account and to the ledger for which no withdrawal is to be allowed.

PETITIONER S /opposite parties in their written statement before the District Consumer Disputes Redressal Forum, Cuttack (short, ''District Forum'') denied all/oil the facts mentioned in the complaint and stated as follows: The submissions made in different paragraphs of the aforesaid consumer dispute cases are false and fabricated. With regard to the submissions made in different paragraphs of the aforesaid Consumer Disputes cases, it is humbly submitted that the respondent has opened a Saving Bank Account bearing No. 3854 in petitioner No. 2''s Branch on 5.9.1998 (not on 7.9.1999 as stated by the respondent).

AFTER opening the said account in the petitioner No. 2''s Branch, the respondent has also made transactions in the said account. A sum of Rs. 3,117.00 only was available in her Savings Bank Account as on 11.9.1999. Thereafter, since the said respondent has "withdrawn a sum of the Rs. 1,500 from the said account on 15.10.1999, leaving behind a sum of Rs. 1,167 in the said account as on that date. District Forum passed the following order:

Having come to a conclusion that there was deficiency in service on the part of the O.Ps., we direct that the OP -2 should correct the Pass Book of the complainant showing balance of Rs. 26,617 as on 9.5.2006 with 6% interest and accordingly, regularize the other entries and allow the complainant to withdraw the amount as and when desired by her. Further, the O.Ps. are to pay a sum of Rs. 2,000 to the complainant towards compensation and Rs. 500 towards litigation expenses within one month from the date of this order.

AGGRIEVED by order of the District Forum, the petitioners filed an appeal before the State Commission. State Commission concluded as follows: We have carefully considered the rival contentions. It occurs to us that the foremost question that arises for consideration is whether on 15.11.1999, the respondent had deposited a sum of Rs. 25,000 in her Saving Bank Account No. 3854. In support of the case of the respondent, learned Counsel appearing for her produced the original Saving Bank Pass Book bearing the same account number. There is a clear entry in the Pass Book on 15.11.1999 showing deposit of Rs. 25,000. The original counterfoil of pay -in -slip was also produced before us by the learned Counsel for the respondent and we have perused the same. It shows that a sum of Rs. 25,000 deposited by the complainant -respondent was received. It is the responsibility of the Bank to credit the said amount and make necessary entry in the ledge maintained by them. For failure on the part of the appellants, the respondent -depositor cannot be made to suffer. On due consideration of these facts, we have no hesitation to hold that on 15.11.1999, the respondent had deposited a sum of Rs. 25,000 in her Saving Bank Account No. 3854, and this amount should have been credited in her favour by making necessary entry in the ledger. In this connection, the decision of the Hon''ble National Commission in Union of India v. Anil Kumar Garg,, 2002 (2) CPR 76 (NC), may be profitably referred to. The facts of that case are similar to the case at hand.

For the reasons stated above, the findings recorded by the learned District Forum cannot be faulted. We find absolutely no merit in the appeal and accordingly, we dismiss the same by confirming the judgment and order of the learned District Forum.

Hence, the revision petition.

We have heard the learned Counsel for the petitioner and gone through the record carefully. The main grounds have given in the revision petition are that - -

(a) Because the impugned order/judgment dated 13.11.2009 is against the facts established before the High Court of Orissa that the alleged deposit made by the respondent like other depositors was not in the office of petitioner No. 2, Branch of the Bank but with the cashier at his house, therefore, the said alleged deposit of Rs. 25,000 on 15.11.1999 was purely a private transaction between the respondent and the said cashier without the knowledge, permission and consent of the petitioners for which the petitioners cannot be held responsible and accordingly, the impugned order deserves to be set aside/quashed.

(b) Because, it was always the case of the petitioners that the respondent had failed to produce even the receipt/counterfoil of the alleged deposit of Rs. 25,000 dated 15.11.1999, signed by the Manager and the Cashier and the same was never signed by the Branch Manager of the petitioner No. 2, therefore, a wrong and erroneous finding of fact has been made in the impugned order hence, the same deserves to be set aside/quashed.

(c) Because, the alleged deposit of Rs. 25,000 dated 15.11.1999 was entered by the said cashier in the Pass Book of the respondent in his own handwriting which transaction had not taken place in the premises of the petitioner No. 2, Branch during banking hours and no entry was recorded/registered for the said sum of Rs. 25,000, therefore, there was no question to direct the Bank to refund Rs. 25,000 to the respondent in the impugned judgment, hence, the same deserves to be set aside/quashed.

(d) Because, the criminal trial is pending against the said cashier namely Sarat Chandra Mishra, who has already been dismissed in service from the petitioner Bank, therefore, the alleged transaction of Rs. 25,000 requires trial and to be proved during the course of prosecution evidence before the Trial Court at Cuttack, therefore, in view of this admitted position, the Commission committed a grave error of law in holding that the respondent had deposited Rs. 25,000 with the petitioner No. 2, Branch of the Bank on 15.11.1999 and directed the petitioners to refund the same by alleging deficiency in service, therefore, the Commission went beyond its jurisdiction and assumed the role of the Trial Court Judge by passing a judgment that said transaction allegedly was made in the Bank, therefore, passed the impugned judgment on the basis of facts which are still disputed, needs to be probed by the prosecution during trial, hence, the same deserves to be set aside.

ALONG with present revision petition, the petitioners have filed an application for condonation of delay of 65 days in filing the revision petition. 65 days have been concluded on the basis of impugned order which was received on 18.9.2010. However, as per the record received from the State Commission, the order was ready and free copy of the order was obtained by the respondent on 23.11.2009. In spite of various opportunities given to the Counsel for the petitioner, he was unable to answer as to whether the petitioners have received the free copy of the order or not and when. We have ascertained the position from the State Commission Advocate for the Counsel Mr. S.L. Patnaik went to collect the free copy on 18.9.2010. The explanation given for the delay in the application is as follows: That the certified copy of the impugned order/judgment dated 13.11.2009 was received by the petitioners on 18.9.2010 as the Counsel for the petitioners at Cuttack received the same from the Registry of the State Commission, Orissa. The time of 90 days for filing the present petition started from 19.9.2010 to 18.12.2010 and as such, there is delay of 65 days in filing the accompanying revision petition.

That the petitioners after obtaining the certified copy of the impugned judgment had sent the papers to the Counsel for the petitioners at New Delhi vide their letter dated 27.9.2010 by speed post but the parcel was received by the Counsel in the second week of Oct. 2010.

That the Counsel for the petitioners at New Delhi made certain queries with the petitioner over phone in order to know the complete facts of the case and sought details of more documents in connection with the case which took some time.

That the Counsel for the petitioners at New Delhi was carrying out white wash in his chamber at X -Block, 52 -A, Civil Side, Tis Hazari Courts, Delhi before last Diwali in the month of November, 2010 and for this purpose all the books, files, papers and other office equipment were removed from the chamber and taken out by the labour involved and after doing the white wash the papers relating to the present case lying in an envelope got mixed up with decided case file papers and got misplaced and the Counsel for the petitioners could not trace the papers relating to the present case despite his best efforts.

That the staff of the Counsel and the Counsel for the petitioners did try to locate the envelope but could not find the same and it was only on 16.2.2011 when all the papers were again taken out and searched then, it was found that the envelope containing the papers relating to the present case were lying in a decided case file of another case and upon finding and locating the papers, the Counsel has immediately prepared the present appeal and has got the annexures typed. Thus, delay has taken place in filing the present petition and the same is due to the aforesaid reason as stated hereinabove, hence, the present application seeking condonation of delay in filing the accompanying revision petition is being moved by the petitioners.

THE application for condonation of delay has nowhere given reasons as to why the petitioners failed to collect the copy of the impugned order dated 13.11.2009, before 18.9.2010, they collected the order after almost 10 months. It has also been stated in the application that whereas the papers have been sent to the Counsel for the petitioner at New Delhi vide their letter dated 27.9.2010 by speed post but the parcel was received by the Counsel for the petitioner in the second week of October, 2010. Here, it is necessary to mention that no specific date has been given and no proof has also been made available regarding the date of receipt. Further, there is no day -to -day explanation for the delay for the period when the papers were received in the second week of Oct., 2010 and 16.2.2011.

THE Counsel for the petitioner is responsible for the delay which occurred between the second week of October and 16.2.2011. It is claimed that the papers were misplaced during white washing of the Advocate''s office. The petitioners have nowhere stated as to what action was taken by them against the Counsel for such careless and negligent handling of their documents and case by the Counsel.

IT is well settled that "sufficient cause" for condoning the delay in each case is a question of fact. Counsel for petitioner has cited S. Ganesharaju (D) Thr. L.Rs. and Anr. v. Narasamma (D) Thr. L.Rs. and Ors., : 2012 (4) SCALE. We have gone through the facts of the case. It cannot be said in this case that the parties have acted with reasonable diligence and have not been negligent and callous in the prospectus of the matter.

IN Ram Lal and Ors. v. 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 Section 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 inquiry 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. v. 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 v. R.B. Bhavaneshwari, I : (2009) CLT 188 (SC) : I (2009) SLT 701 : 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.

FURTHER , Hon''ble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay observed in Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation, reported in I : (2010) CLT 333 (SC) : II : (2010) SLT 205 : : (2010) 5 SCC (sic), as under: We have considered the respective submissions. The law of limitation is founded on public policy. The Legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the Legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the Courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.

The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate, Collector, Land Acquisition, Anantnag v. Mst. Katiji, : (1987)2 SCC 107; N. Balakrishnan v. M. Krishnamurthy, : (1998) 7 SCC 123 and Vedabai v. Shantaram Baburao Patil, : (2001) 9 SCC 106.

Apex Court in Anshul Aggarwal v. New Okhla Industrial Development Authority, IV, (2011) CPJ 63 (SC) has observed: 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.

RECENTLY , Hon''ble Supreme Court in Post Master General and Others v. Living Media India Ltd. and Another, I : (2012) CLT 338 (SC) : II : (2012) SLT 312 : : (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:

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:

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 bona fide, 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.

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 bona fide 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.

In view of our conclusion on Issue (a), there is no need to go into the merits of Issues (b) and (c). The question of law raised is left open to be decided in an appropriate case.

In the light of the above discussion, the appeals fail and are dismissed on the ground of delay. No order as to costs.

OBSERVATIO NS made by Apex Court in the authoritative pronouncements discussed above are fully attracted to the facts and circumstances of the case. Accordingly, the present revision petition is hereby dismissed on the ground of limitation with cost of Rs. 20,000 (Rupees twenty thousand only). Petitioners are directed to pay the said cost by way of demand draft, in the name of respondent, within eight weeks from today.

IN case, petitioners fail to deposit the said cost within the prescribed period, then they shall also be liable to pay interest @ 9% p.a., till realization. List on 23.8.2013 for compliance.

Of late, it has come to notice of the Bench that in many cases, Fora below do not clearly indicate the date on which the orders/judgments were got ready and issued/delivered to the parties concerned. This is important as the period of limitation starts from the date when the impugned order was received by the parties. In the circumstances, necessary instructions may be issued by the Registry to the Fora below for strict compliance regarding mention of the following dates in the order.

Date when free copy was prepared.

Date on which free copy was despatched or date on which free copy was collected by the parties.