Sanjay Kumar Diwan vs STATE BANK OF INDIA

COUNSEL for the petitioner heard. There is a delay of 57 days in filing the present Revision Petition. Petitioner has moved an application for condonation of delay. Delay is explained in para No. 2, which is reproduced here as under: - "2. That the copy of the order was received by the petitioner on 07 -01 -2013. The appeal is delayed by 40 days as the file of the petitioner was misplaced. After the efforts to file was found and immediately after the Revision Petition was prepared and is being filed. The delay has occurred because of the missing of the file. Therefore, it is requested to the Hon''ble Commission to condone the delay of 40 days in the interest of justice. The complainant is having a good case and is hopeful to succeed in the Revision Petition."

FIRST of all, the petitioner has not mentioned the correct days of delay. The delay is of 57 days. Secondly, such like stories can be created at any time. The file was lost but there is no proof for the same. This was an important matter and the petitioner should have prepared a new file within 2 -3 days. The case is hopelessly barred by time. This view finds support from the Apex Court''s authorities reported in the cases "Anshul Aggarwal v. New Okhla Industrial Development Authority, 2011 4 CPJ 63 , R.B. Ramlingam v. R. B. Bhavaneshwari, 2009 1 CutLT 188 , Ram Lal and Others v. Rewa Coalfields Ltd., 1962 AIR(SC) 361, and Bikram Dass Vs. Financial Commissioner and others, 1977 AIR(SC) 2221.

THE latest view was taken by the Apex Court in the case "Sanjay Sidgonda Patl Vs. National Insurance Co. Ltd. and Ors.", decided by the Apex Court while dismissing the Special Leave to Appeal (Civil) No. 37183 of 2013, decided on 17.12.2013, upholding the order of this Commission wherein delay of 13 days was not condoned. Similar view was taken by the Apex Court while dismissing the Special Leave to Appeal (Civil) No. 33792 of 2013 in Chief Officer, Nagpur Housing and Area Development Board and Anr. V. Gopinath Kawadu Bhagat, decided on 19.11.2013, upholding the order of this Commission where 77 days delay was not condoned and again delay of 78 days was not condoned in the case reported in M/s Ambadi Enterprises Ltd. Vs. Smt. Rajalakshmi Subramanian, in Special Leave to Appeal (Civil) No. 19896 of 2013 decided on 12.07.2013.

LET us turn to the merits of this case. The case of the complainant/petitioner is that the petitioner/complainant had deposited a sum of Rs.1,80,000/ - with the State Bank of India under Multi Option Deposit Scheme and the date of maturity was 14.05.2005. On that date, the account was renewed for a further period of one year. According to the complainant, the account number was allotted for MOD account of the complainant. Later on the maturity amount of Rs.1,88,347/ - was again deposited for a further period of one year till 14.05.2006. The MOD account was renewed every half yearly. When the complainant asked for MOD amount, he was informed that the said amount had already been paid through his savings Bank Account.

ON the other hand the complainant has denied this fact. The complaint was filed before the District Forum. The District Forum vide its order rendered on 16.04.2012, passed the following order: - "1. The OP will pay the amount of Rs.1,98,922/ - within one month to the complainant.

The OP will also pay the interest @5% annually from the maturity date 14 -05 -2006.

The OP will also pay Rs.1000/ - for mental harassment.

The amount of cost of the suit for Rs.1000/ - which will be paid by the OP to the complainant".

HOWEVER , the State Commission accepted the appeal filed by the State Bank of India and dismissed the complaint. It was explained that on 10.12.2005, a cheque in the sum of Rs.1,00,000/ - was issued by the complainant in favour of ICICI Home Finance Company Ltd., which was presented for clearance and to credit that cheque amount was transferred from MOD account to the Savings Bank Account of the complainant. Again, on 18.02.2006 also, a cheque in the sum of Rs.90,000/ - was issued by the complainant in favour of ICICI Home Finance Company Ltd. and was also cleared by the Bank by transferring the amount from the MOD account. The petitioner again issued a cheque in the sum of Rs.50,000/ - dated 17.07.2006 in favour of ICICI Home Finance Co. Ltd. and thereafter, the complainant preferred this appeal.

COUNSEL for the complainant/petitioner does not pick up a conflict with this fact and submits that the Bank has not filed the statement for the year 2006 wherein the complainant had further deposited a sum of Rs.1,80,000/ -. He contends that the onus of proof that the money was deposited by the petitioner is on the Bank. He explains that the Bank should have produced the statement of 2006. In the meantime, we have perused the file of the District Forum, wherein, there is statement of 2006. Counsel for the petitioner was confronted with that statement but he submits that as a matter of fact, no entry is found thereon. No value can be pinned with the arguments urged by the counsel for the complainant. It must be borne in mind that it is the complainant/petitioner and nobody else who is to carry the ball in proving that he had deposited a sum of Rs.1,80,000/ -, particularly, when he submits that the statement filed by the State Bank is incorrect. He should have filed the counter receipt or should have filed the pass -book to prove his case. The oral submissions are evasive, vague and lead us nowhere. It is rudimentary principle of jurisprudence that the documentary evidence will always get preponderance over the oral submissions because it is well known axiom of law that "men may tell lies but the documents cannot".

MOREOVER , it must be borne in mind that the statement of account is certified statement under Banker''s Book of Evidence Act 1891. Presumption of truth is attached with it. Petitioner has filed to rebut this evidence. The Revision Petition is meritless and the same is, therefore, dismissed.