Kaulgud Constructions Pvt Ltd Malekar Wada vs STATE BANK OF INDIA

IN this revision petition, there is challenge to order dated 21.6.2011, passed by Maharashtra State Consumer Disputes Redressal Commission, Mumbai (for short ''State Commission '').

PETITIONER being the complainant before Consumer Forum, filed a complaint against respondents alleging that he is having an account with respondent no.2. Having received a cheque of Rs.73,93,922/- from the Irrigation department of the Government of Maharashtra, he deposited the same with respondent no.2, on 12.5.2006. Respondent no.2 paid the cheque amount to the petitioner. However, respondent no.2 had received the payment of the aforesaid cheque from respondent no.1, after 55 days of the payment made by respondent no.2. Hence, respondent no.2 had charged interest of Rs.1,67,524/- to the petitioner. Respondent no.1, in its written statement has taken the plea that petitioner has no privity of contract with the answering respondent. The main fault lies with respondent no.2 and not with the answering respondent.

ON the other hand, it is the plea of respondent no.2 that negligence if any, is on the part of respondent no.1 and not on the part of answering respondent. The answering respondent purchased the cheque from petitioner at his request and has deposited/credited amount of the cheque to petitioner ''s account immediately even before encashment of cheque by respondent no.1. It is further stated that when respondent no.2 forwarded the cheque to respondent no.1, it (respondent no.1) released the amount after a period of 55 days.

CONSUMER Grievances Redressal Forum, Sangli (for short ''Consumer Forum '') dismissed the complaint on the ground that it is not within the period of limitation. Aggrieved by the order of Consumer Forum, petitioner filed an appeal before the State Commission, which dismissed the same.

THIS is how the matter has reached before this Commission.

AS per office report, impugned order dated 21.6.2011, was received by the petitioner on 11.7.2011, whereas present petition has been filed on 8.12.2011, thus, there is delay of 60 days. As per learned counsel for the petitioner, copy of the impugned order was received on 24.9.2011. Hence, present revision is within the limitation.

AS per certified copy of the impugned order, it was prepared on 11.7.2011. However, there is nothing on record to show as to when the same was received by the petitioner. Be that as it may, if there is any delay in filing of the petition, we condone the same.

IT is contended by learned counsel for the petitioner that petitioner had been corresponding and it was only when respondent no.2, vide its letter dated 16.6.2008, informed him that there was no other alternative than to close the matter, an effective cause of action arose to file the complaint. In support, learned counsel has relied upon a decision of Supreme Court in, Transport Corporation of India Ltd. Vs. Veljan Hydrair Ltd., (2007) 3 SCC 142.

CONSUMER Forum while dismissing the complaint held ; "5. While considering point of limitation and delay, the complainant ''s complaint is mainly concerned with the fact that on dated 7.7.2006, the amount of interest was debited unauthorizedly from the account of the complainant by respondent Bank No.2. Therefore, the reason for the complaint happened on dated 7.7.2006. It was binding on the complainant to file complaint with limitation period of two years after this date. Though the complainant states that he was busy with carrying correspondence with the Bank and because of this the period for filing the complaint was increased, it seems that the Respondent Banks never accepted their responsibility in this issue. Thereafter, merely corresponding with the bank when it never accepted its responsibility and increasing period of limitation by the complainant is not proper in the opinion of this Forum and it is not acceptable. It was necessary to file the complaint within the period of two years from the date on which improper recovery of interest was made by respondent no.2. Also complainant has filed this complaint 50 days later the period of limitation was over. Also complainant has not filed any application with prayer for condoning delay under Consumer Protection Act, this forum has no authority to pardon the delay. "

STATECOMMISSION , while affirming the order of Consumer Forum observed ; "After perusing the record, it is seen that the respondent no.2/original opponent no.2 had recovered the interest from the appellant/original complainant on 7.7.2006. So the cause of action starts from 7.7.2006. Within a period of two years, the complaint should have been filed. The complainant/ appellant has tried to contend that cause of action is continuous. However, the correspondence between the parties cannot extend the cause of action and thereby period of limitation. Further, the complainant/appellant could not prove that there is deficiency on the part of opponents. District Consumer Disputes Redressal Forum has rightly dismissed the complaint and we do not find any merit in the appeal. "

In its entire complaint, petitioner has nowhere stated as to when the cause of action has arisen. Petitioner has also not made any reference of letter dated 16.6.2008 of respondent no.2, in its complaint, on the basis of which alleged cause of action has arose.

THE deficiency in service has been alleged by petitioner in para 4 of its complaint, which read as under ; "4. The said amount of cheques was made available by the Government of Maharashtra and because of this the Respondent No.2 was entitled to get the said amount from Respondent No.1 bank immediately after presenting it for encashment which was easily possible and also necessary for the completion of transaction. But due to careless and negligence of Respondent No.1, Bank the said cheque was not immediately encashed and the recovery of the cheque amount was shown 55 days later in the account of applicant company which had its account with Respondent no.2 bank, thus the amount was shown deposited in the applicant company ''s account in Respondent No.2 bank on dated 7.7.2006 i.e. 55 days later from the date 12.5.2006 on which the said cheque was deposited in Respondent No.2 bank. Thus, the delay of 55 days happened due to negligence and carelessness of Respondent no.1 bank. Thus, the Respondent no.1 bank has shown service to the appellant company by indulging in faulty and defective service. "

AS per above averments made in the complaint, cause of action arose on 7.7.2006, when cheque in question was deposited. Transport Corporation case (supra) is particularly with regard to Section 10 of the Carriers Act, 1865. Hence, the same is not applicable to the facts of the present case. It is well settled principle of law that any relief can be claimed under the Consumer Protection Act, 1986, (for short as ''Act '') within two years from the date on which the cause of action accrues.

SECTION 24-A of the Act, deals with this situation which is reproduced as under :- "24-A. Limitation period ---- (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen accrues. (2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be that he had sufficient cause for not filing the complaint within such period. Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be records its reasons for condoning such delay ".

THE above provision is clearly peremptory in nature requiring the Consumer Fora to see at the time of entertaining the complaint whether it has been filed within the stipulated period of two years from the date of cause of action. Hon ''ble Apex Court in case of Kandimalla Raghavaiah and Co. versus National Insurance Co. Ltd. and another, 2009 CTJ 951 (Supreme Court) (CP) took view of the observations made in case State Bank of India v. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP), as under:- "12. Recently, in State Bank of India Vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, this Court, while dealing with the same provision, has held: "8. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ''shall not admit a complaint '' occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside. "

In para No.13, it has been held by the Hon ''ble Supreme Court "The term "cause of action " is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of wide import. It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described as "bundle of facts "., which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, "cause of action " means the cause of action for which the suit is brought. "Cause of action " is cause of action which gives occasion for and forms the foundation of the suit. In the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out. "

THE observation made by the Hon ''ble Apex Court in the authoritative pronouncements discussed above, are fully attracted to the facts and circumstances of the present case. It is petitioner ''s own case that deficiency in service has occurred on 7.7.2006. It is also not the case of petitioner, that he had moved an application for condonation of delay in filing of the complaint, before the Consumer Forum. Thus, petitioner could have sought any relief under the Act, by filing complaint within two years from 7.7.2006. The subsequent correspondence between the parties is not to be taken as a recurring cause of action to seek remedy under the Act.

ON the point of recurring cause of action reference may be made to the observations made by the Apex Court in, Raja Ram Maize Products etc. Vs. Industrial Court of M.P. and others AIR 2001 Supreme Court 1676, wherein, the Court observed ; "10. The concept of recurring cause of action arising in a matter of this nature is difficult to comprehend. In Balakrishna Savalram Pujari Waghmare Vs. Shree Dhyaneshwar Maharaj Sansthan, AIR 1959 SC 798, it was noticed that a cause of action which is complete cannot be recurring cause of action as in the present case. When the workers demanded that they should be allowed to resume work and they were not allowed to resume work, the cause of action was complete. In such a case the workers going on demanding each day to resume work would not arise at all. The question of demanding to allow to do work even on refusal does not stand to reason ".

In view of the above, it is clearly established that complaint filed by petitioner before the Consumer Forum was barred by limitation. Accordingly, as per law settled by Hon ''ble Apex Court in State Bank of India ''s case (supra) the complaint was not maintainable.

MOREOVER , there are concurrent findings of fact by two fora below. Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of the Act.

SINCE , two fora below have given detailed and reasoned orders which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction, the present petition is hereby, dismissed with costs of Rs.10,000/- (Rupees Ten Thousand only). Petitioner is directed to deposit the costs of Rs.10,000/- by way of demand draft, in the name of "Consumer Legal Aid Account " of this Commission, within four weeks from today. In case, petitioner fails to deposit the said costs within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.

LIST on 27.4.2012 for compliance.