HDFC BANK LTD vs Surender Kumar Singhal

PRESENT revision petition has been filed under Section 21(b) of Consumer Protection Act, 1986 (for short, ''Act '') challenging impugned order dated 5.2.2013, passed by State Consumer Disputes Redressal Commission, UT Chandigarh (for short, ''State Commission '').

RESPONDENT /complainant filed a consumer complaint under Section 12 of the Act, before District Consumer Disputes Redressal Forum, Chandigarh (for short, ''District Forum '') on the allegations that he had availed a loan against his house from petitioner/opposite party. Out of total loan amount of Rs.99,00,000/- (Rupees Ninty Nine lacs only) petitioner deducted an amount of Rs.96,709/- on account of processing fee and insurance charges. Respondent made request to the petitioner several time to send him the copy of insurance policy for which he has been charged Rs.13,281/- but petitioner failed to submit the same. Thereafter, respondent arbitrarily and without assigning any reason increased the rate of interest. Due to restrictive and monopolistic trade practices committed by the petitioner, respondent was constrained to transfer the loan to other Bank. In that process, petitioner charged total pre-payment charges to the tune of Rs.3,67,965.75. Since, petitioner failed to refund the legal charges, respondent filed complaint before the District Forum. The complaint was contested by the petitioner.

DISTRICT Forum, vide order dated 18.1.2012, allowed the complaint and directed the opposite party; "(a) Refund amount of Rs.3,67,965.75P and also pay an interest at the rate of 6% p.a. from the date of its receipt, till it is actually paid. (b) Opposite Parties are also directed to refund Rs.13,281/- and also pay an interest at the rate of 6% p.a. from the date of its receipt, till it is actually paid. (c) Opposite Parties are further burdened with Rs.15,000/- towards cost of litigation. "

BEING aggrieved, petitioner filed an appeal before the State Commission. Alongwith the appeal, an application for condonation of delay of 276 days (232 days as per Office report of the State Commission) was filed. State Commission, vide impugned order dismissed the application for condonation of delay. Consequently, the appeal of the petitioner was dismissed being time barred. Hence, this revision petition.

WE have heard the learned counsel for the petitioner and gone through the record.

MAIN grounds on which condonation of delay was sought before the State Commission read as under; "2. That the impugned order has been passed on 18.1.2002. That immediately on receipt of the certified copy of the order, the appellant bank had instructed the dealing advocate within the limitation available for filing an appeal. 3. That counsel for the bank was also given the demand draft for a sum of Rs.25,000.00 to be deposited before the Hon''ble State Commission alongwith the appeal. True copy of the demand draft of Rs.25,000/- dated 28th of March, 2012 is attached as Annexure A/5. The grounds of appeal, were got signed by the advocate from the authorized officer of the bank. However, the appeal was never filed. 4. That the concerned advocate confirmed having filed the appeal and started reporting further dates in the matter. The status in respect of various cases, including the present case submitted by e-mail showed that in the case of Surinder Singal the next date was fixed on 27th of July, 2012. True copy of the said e-mails printout is submitted as Annexure A/6. 5. That the bank came to know only on 18th of October, 2012 that the appeal has not been filed. The Counsel had been informed even the dates of the appeal to the bank officials. Immediately when the bank officials came to know that the appeal has not been filed, they went the concerned advocate to get back the file. At that stage, he agreed that he has not filed the appeal. Thus, there is delay in filing of appeal due to the miscommunication and inaction on the part of bank ''s advocate. 6. That the bank should not be made to suffer on account of negligence on the part of its counsel. The delay in filing the appeal is un-intentional and is attributed to the circumstances mentioned above. 7. That it is in the interest of justice that delay of 276 days in filing the present appeal be condoned. "

It has been contended by learned counsel for the petitioner that delay has occurred on account of wrong information provided by the earlier counsel who was conducting the case before the State Commission. The said counsel always informed the petitioner that appeal has been filed and it is subjudice before the State Commission. It further contended that petitioner had engaged that Advocate and has paid his fees and was confident that its lawyer will look after the interest of the petitioner. Hence, petitioner should not be made to suffer for inaction, deliberate omission or misdemeanor of its previous counsel.

STATE Commission, while dismissing the application for condonation of delay in its impugned order observed; "As such, the applicant/appellant, acted in a highly irresponsible and negligent manner, and woke up from their deep slumber, after 232 days. The applicant/appellant did not act, with due diligence, resulting into delay of 232 days, in filing the appeal. It appears that the applicant/appellant has coined a false excuse to cover up its lapse of not filing the appeal in time. The applicant/appellant was required to explain each day ''s delay. It, however, miserably failed to explain the delay of 232 days, which is more than nine times, beyond the normal period of filing an appeal, under Section 15 of the Act. Complete in-action and lack of bonafides, of the applicant/appellant is writ large, on the face of record, and attributable to it, in filing the appeal, after a delay of 232 days. The delay, in filing the appeal was, thus, intentional, willful and deliberate. Since, no sufficient cause is constituted from the averments, contained in the application, the delay of 232 days cannot be condoned. The principle of law, laid down in the aforesaid cases, is fully applicable to the facts of the instant case. The application, is, thus, liable to be dismissed. "

PETITIONER has taken the usual plea that of to shift entire burden on its previous counsel. We can not overlook this fact that petitioner being a multi-crore Bank is having full-fledged legal offices comprising of battery of lawyers and legal assistants and other staff. It was duty of the petitioner being a litigant to have pursued the appeal which was to be filed before the State Commission, in a diligent and careful manner. This clearly shows that there is something wrong in the legal department of the petitioner ''s bank that they were so careless and negligent that they could not keep track of the appeal. Even if we believe that averments as made in the application for condonation of delay are correct, then why petitioner did not take any action against its previous counsel by not filing any complaint the before Bar Council of India for professional misconduct. Nor did petitioner file any complaint under the Act, against the previous counsel for deficiency in service. It appears that after the order of the District Forum, petitioner bank went into the deep slumber and all of a sudden woke up after 7 months. Moreover, a valuable right has occurred in favour of the respondent. It is well settled that "sufficient cause " for condoning the delay in each case is a question of fact.

UNDER the Act, a special period of limitation has been provided to ensure expeditious disposal of cases. Complaint has to be disposed of within 90 days from the date of filing where no expert evidence is required to be taken and within 150 days where expert evidence is required to be taken.

HON ''ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority -IV (2011) CPJ 63 (SC) has held that while deciding the application filed for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Act for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if the appeals and revisions which are highly belated are entertained. Relevant observations made by Apex Court read as under: "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 fora ". Hon''ble Apex Court also observed in case "State of Nagaland Vs. Lipokao and others reported in 2005(2) RCR (Criminal) 414 that; "Proof of sufficient cause is a condition precedent for exercise of discretion by the court in condonation of delay ".

APEX Court also in "D. Gopinathan Pillai Vs. State of Kerala and another, reported in (2007) 2 SCC, 322, held; "When mandatory provision is not complied and the delay is not properly, satisfactorily and convincingly explained, the court cannot condone the delay on sympathetic ground only. "

IT may also be pointed out that petitioners have also filed an application for permission to place on record the additional grounds. Additional grounds which are sought to be introduced at this belated stage cannot be taken into consideration since they relate to the merits of the case and since the appeal is barred by limitation, there is no question to entertain these additional grounds at this late stage. As apparent from the record, the District Forum has passed the final order as far as in the year 2008 and now more than five years have passed and the only intention of the petitioners is to deprive the fruits of the decree in favour of the respondent and to a large extent the petitioners have succeeded in depriving the benefit to the respondent for a period of five years. 17. Therefore, the grounds stated in the application cannot constitute sufficient cause so as to condone the long delay of 128 days in filing the appeal. Thus, we do not find any infirmity or illegality in the impugned order passed by the State Commission. Accordingly, we dismiss the revision petition with cost of Rs.25,000/- (Rupees Twenty Five Thousand only). 18. Petitioners are directed to deposit the cost by way of demand draft in the name of "Consumer Welfare Fund " as per Rule 10A of the Consumer Protection Rules, 1987, within eight weeks from today. In case, petitioners fail to deposit the cost within the prescribed period, then they shall be liable to pay interest @ 9% p.a. till realization.

LIST for compliance on 26.7.2013.