Shib Kumar Mukherjee vs H.D.F.C. Bank

THIS appeal has been filed by the appellant against the order dated 24.04.2013 passed by the West Bengal State Consumer Disputes Redressal Commission, Kolkata (in short, ''the State Commission'') in S.C. Case No. CC/38/2011 -Shib Kumar Mukherjee Vs. HDFC Bank by which, complaint was dismissed. Brief facts of the case are that Complainant/appellant had two fixed deposit account facilities with OP/respondent for Rs. 5,00,000/ - and 3,00,000/ -, respectively and was also having saving account with a balance of Rs. 1,00,000/ -. Complainant was regular investor in shares and in December, 2001, his account was frozen. One criminal case was registered against him and he was under Police custody from 2.6.2003 to 11.6.2003 and in judicial custody upto 25.8.2003. During Police custody, complainant was compelled to write a letter to the bank with a request to pay Rs. 5,00,000/ - in favour of the Mr. Rama Sircar. Alleging deficiency on the part of OP, complainant filed complaint before State Commission. OP resisted complaint and submitted that amount was released as per the request of the complainant and there was no deficiency in service and prayed for dismissal of complaint. Learned State Commission after hearing both the parties observed that complainant''s case does not fall under the purview of C.P. Act and he should approach to other appropriate Forum against which, this appeal has been filed along with application for condonation of delay.

HEARD learned Counsel for the appellant on application for condonation of delay. Learned Counsel for the appellant submitted that as there was delay of 129 days in filing appeal, delay may be condoned.

AS per office report, there was delay of 227 days in filing appeal. In application for condonation of delay, appellant mentioned that there was delay of 129 days as on 30.9.2013 meaning thereby appeal was ready for filing on 30.9.2013, but the same has been filed on 22.1.2014 and no explanation has been given by the appellant in application for condonation of delay from 1.10.2013 to 22.1.2014. Not only this, appellant submitted in the application that on receiving copy of the order, he contacted Advocate and made part payment of fees, but later on Advocate demanded more money for filing appeal. Complainant lodged complaint before Bar Counsel. It was further submitted that bank was willing to solve the dispute but as this was not solved, complainant decided to file appeal.

ADVOCATE who was entrusted with the matter for filing appeal was not under an obligation to file appeal unless payment of requisite fees was made to him by the appellant. Appellant has not mentioned in the application when his Advocate refused to file the appeal and when he contacted another Advocate for filing appeal. Apparently, there is no explanation at all for condoning of inordinate delay of 227 days for filing appeal and application is liable to be dismissed in the light of the following judgment of Hon''ble Apex Court. In R.B. Ramlingam Vs. R.B. Bhavaneshwari 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.

IN Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 SC 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 S. 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 enquiry 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.

HON ''ble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay observed in Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 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.

Hon''ble Apex Court in (2012) 3 SCC 563 -Post Master General and Ors. Vs. Living Media India Ltd. and Anr. has not condoned delay in filing appeal even by Government department and further observed that condonation of delay is an exception and should not be used as an anticipated benefit for the Government departments.

HON ''ble Apex Court in 2012 (2) CPC 3 (SC) -Anshul Aggarwal Vs. New Okhla Industrial Development Authority observed 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 Foras.

THUS , it becomes clear that there is no reasonable explanation at all for condonation of inordinate delay of 227 days. In such circumstances, application for condonation of delay is dismissed. As application for condonation of delay has been dismissed, revision petition being barred by limitation is also liable to be dismissed. Learned State Commission has observed that complainant should seek remedy from any appropriate Forum which makes it clear that complainant is still free to seek redressal of his grievance from appropriate authority. Consequently, appeal filed by the appellant is dismissed as barred by limitation with no order as to costs.