SUKANTA SARKAR vs Canara Bank

-THE complainant deposited on 4.9.1987 the sum of Rs. 5,00,000/- by demand draft with the opposite party.

THE said demand draft bearing No. 120590 was drawn on United Bank of India under the Kamdhenu Deposit Scheme by way of fixed deposit for one year. The opposite party did not issue the fixed deposit receipt to the complainant and on demand, the complainant was told by the opposite party that the fixed deposit receipt would be kept with the Bank''s custody and the complainant on good faith did not urge to have the receipt for the said fixed deposit instantly.

The said fixed deposit receipt on maturity stood to Rs. 5,46,550/- inclusive of interest, but the Bank/O.P. did not pay the proceeds of fixed deposit receipt on maturity and after several reminders partly paid on 28.11.1988 the sum of Rs.3,39,839.25 by pay order out of total amount of Rs. 5,46,550/- leaving a balance thereby Rs. 2,06,711/-.

THE O.P./bank partly liquidated of the total proceeds of Rs. 5,46,550/- against the fixed deposit scheme after about 3 months and thereafter on repeated demands to pay the balance amount against the fixed deposit receipt it did not pay any heed. The O.P./bank issued and handed over certain fictitious cheques and/or pay orders such as pay order dt. 30.12.1988 for Rs. 1,00,000/-, 12.1.1989 for Rs. 40,000/-, 24.1.1989 for Rs. 10,000/-and 8.2.1989 a self-cheque for Rs. 8,000/- aggregating to Rs. 1,50,000/- and the said cheques and /or pay orders were returned to the Bank Manager of O.P. No. 2 as those were drawn by such persons with whom the petitioner has had no relation at all.

LASTLY, self cheque bearing No. 6787 dated 15.12.1988 on Indian Overseas Bank, Golpark Branch for Rs. 2,09,148/- was issued and delivered to the petitioner who handed over the same to the C.B.I, for investigation as the complainant/petitioner smelt some fowl play in the matter because the cheques and/or pay orders drawn from account of Dutta Stationary handed over to the complainant was a matter of suspicion and thereafter the complainant/petitioner informed the said incident to the Chairman and Managing Director of the O.P./bank whereby the O.P./bank by its letter dated 26.6.89 informed the complainant/petitioner that the short payment in respect of the said fixed deposit receipt could not be said until and unless the investigation by the C.B.I, is not completed and also requested the complainant/petitioner to bear with them till the disposal of the investigation and the O.P./bank further by its letter dt.15.6.1989 assured the complainant/petitioner to pay the balance amount of the fixed deposit receipt and requested the complainant/petitioner to bear with them for sometime. However, that inspite of repeated assurance given by the O.P./bank to pay up the balance of Rs. 2,06,711/- the same was not paid upto the-date of filing the complaint by the complainant/ petitioner, as such the complainant/petitioner filed this complaint before the State Commission inter-alia praying for direction upon the O.P./bank to pay the balance amount of Rs. 2,06,711/- under the fixed deposit receipt of Kamdhenu Scheme to the complainant/petitioner and also to pay Rs. 2,64,924/- on account of interest at the rate of 18% p.a. On the said sum of Rs. 2,06,711/- upto the date of filing from the date of maturity on 3.9.1988 of the said fixed deposit amount and further prayed for compensation of Rs. 4,00,000/- for suffering financial injury and damages by the complainant/petitioner. The O.P./bank filed its written objection inter-alia contending that the present petition of complaint is not maintainable either in law or in facts and that the complaint is misleading and beyond the scope of the Consumer Protection Act and that the petition of complainant is not maintainable in view of the fact that the complaint has been filed much after the period of limitation as envisaged in the amended provisions of Section 24A of the Consumer Protection Act and that the alleged complaint relates to criminal proceedings being R.C. Case No. 24 of 1989 initiated at the instance of the O.P./bank by the Central Bureau of Investigation which is still pending before the Special Court, Calcutta wherein the then Branch Manager of the O.P. No. 1 was an accused and that the instant complaint is vexatious, malafide and an abuse of process of law and thereafter the O.P./bank denied in general all material allegations contained in the petition of complainant.

THE O.P./bank further stated that all papers in connection with this case had been seized by the C.B.I. Authority for the purpose of investigation and those documents could not be released until the investigation by the C.B.I. is completed and it further contended that without the production of those documents, the dispute before this Commission could not be adjudicated properly.

IT further contended that no explanation has been given by the complainant/petitioner for filing the complaint at belated stage and for all the aforesaid reason, the O.P./bank prayed for dismissal of complaint petition has not been maintainable in law. DECISION The crux of the objection raised by the O.P./bank is that the complaint petition is not maintainable being barred by law of limitation as per amended provision of Section 24A of the Consumer Protection Act as the complaint petition has been filed on 18.6.93.

It is admitted that the complainant/ petitioner made a fixed deposit of Rs.5,00,000/- on 4.9.1987.

IT is further admitted that it matured on 3.9.1988 after expiry of one year and the proceeds of the said certificate amounted to Rs. 5,46,550/-. It is also admitted position that the O.P./bank paid Rs. 3,39,839.25 being a part payment of the total proceeds of the fixed deposit scheme amounting to Rs. 5,46,550/- leaving a balance thereby a sum of Rs. 2,06,711/- which remains still unpaid.

IT is also the fact that some fictitious Cheques and/or pay orders issued in favour of the complainant/petitioner from account of some other parties completely unknown to the complainant/petitioner were returned to the O.P./ bank and the last self cheque drawn on Indian Overseas Bank drawn by one unknown person/ firm given to the complainant/petitioner has been handed over to the C.B.I, because the action of the then Branch Manager of the O.P. No. 1 / bank was very much dubious and suspicious as such smelting some fowl play by the officials of the O.P./bank, the complainant/petitioner referred the matter to the C.B.I, for investigation and informed to all the higher officials of the O.P. No. 1/bank. The bank authority all through assured the complainant/ petitioner to pay the balance amount against the fixed deposit scheme but they never denied their liability to the complainant/petitioner. As regard contention of the opposite party/bank that the claim of the petitioner/ complainant is barred by limitation, we do not agree with the view on the ground that the claim of the complainant/ petitioner has never been denied by the O.P./bank as yet nor the claim of the complainant/petitioner has been rejected or closed by the O.P./bank. On the other hand the O.P./bank always assured the complainant/ petitioner to repay the balance amount of the fixed deposit scheme subject to result of the C.B.I, investigation into the matter.

THE application of amended provision of Section 24A of the Consumer Protection Act relating to limitation of time for filing this complaint, we are of opinion that prior to amendment of the Consumer Protection Act which was published by extraordinary Gazette by Government of India on 18th June, 1993 giving immediate effect thereby including Section 24A, the limitation of time for filing the complaint before the Consumer Disputes Redressal Forum was followed from the Limitation Act, 1963 and the National Commission by pronouncement of various judgments which have been reported in various journals held that the limitation for filing of complaint before the Consumer Disputes Redressal Forum would be 3 years from the date of cause of action arising thereof but as the Consumer Protection Act is a special act and by way of amendment of the limitation of time for filing the complaint before Consumer Disputes Redressal Forum is made one year as per Sec. 24A of the Act and subsequently by gazette notification it has been enlarged for two years from the date of arising of the cause of action, no doubt the limitation of time for filing the complaint would be two years from the date of arising the cause of action but prior to that the limitation was 3 years as per rulings pronounced by the National Commission following the Law of Limitation Act, 1963.

ACCORDINGLY, we are of opinion that the complainant/petitioner would get the benefit of marginal effect of the changing in law in respect of law of limitation because the complainant/ petitioner filed the complaint on 18th June, 1993 whereby the amended provision of the C.P. Act as the limitation of time for filing the complaint came into force on the same day, the complainant/petitioner must get the benefit of marginal effect of law of limitation i.e. the petitioner/ complainant must enjoy the time of limitation for 3 years for filing the complaint before the Consumer Disputes Redressal Forum as per prevalent law prior to 18th June, 1993. As the cause of action even did not exhaust after writing the letter dated 13.7.1990 by the O.P./bank assuring the complainant/ petitioner to look into the matter for payment of the balance amount of the fixed deposit scheme we are of opinion that the complainant/petitioner is not barred by law of limitation, firstly as because the cause did not exhaust on 13.7.90 as per said letter bearing No. CC: Css: CD-15: 1032: SC dated 13.7.1990. Consequently that the complainant/petitioner is entitled to get the benefit of the marginal effect of law of limitation and also the cause is still continuing.

As regards contention of the O.P./bank that the matter under criminal investigation, we observe that the criminal investigation is launched against the then Branch Manager of the O.P.I/ bank and it is still continued with even after expiry of several years but in the said criminal investigation by the C.B.I., the complainant/ petitioner in no way is involved because he is the creditor to the bank and bank is the debtor to the complainant/petitioner in respect of the unpaid amount of Rs. 2,06,711/- against the matured value of Rs. 5,46,550/- of a fixed deposit scheme.

WE are also of opinion that the complainant/petitioner cannot wait for ever on the plea that the C.B.I, investigation is being carried on. It was the duty of the bank to complete the C.B.I, investigation against the then Manager who was involved in a fraudulent activities but for the negligence and deficiency on the part of the opposite party/bank, the complainant/petitioner cannot face harassment, mental agony and torture in such a fashion that this disputed money under a fixed deposit scheme could not be returned to him even after expiry of 4/5 years. We also do not understand that how the criminal investigation against the fraudulent activities of their Manager can stand on the way to repay the admitted liability by the opposite party/bank to the complainant/petitioner and how the complainant/petitioner is prevented from seeking its relief by additional means of taking shelter under the Provisions of C.P. Act which is not in derogation of the provisions of any other law for the time being in force.

THE complainant/petitioner cited certain decisions in support of their arguments and one such decision in the case of U. Rajendran v. Tamil Nadu Mercantile Bank Ltd. reported in I (1992) CPJ 223 (NC) where the National Commission has observed "we are not satisfied with the conduct of the bank. If they were in doubt whether the deposit could be repaid to the claimant and Sri A. Bhaskaran pending C.B.I, ''enquiry they could have referred the matter to the C.B.I. officers for clarification. THEy should not delayed the matter for such a long time". Relying on the said decision we are of opinion that the opposite party/bank could have referred the matter to the C.B.I, officers for clarification about the payment of the balance amount against the fixed deposit scheme to the complainant. The delay in payment of the balance amount of Rs. 2,06,711/- against the fixed deposit scheme till now is negligence and serious deficiency in service on the part of the opposite party/bank.

FURTHER, relying on a decision in the case of Delkon India Private Limited v. Regional Insurance Company Ltd. reported in 1993 (3) CPR 372 where it has been held that in a claim for loss on account of theft under a policy of insurance, the claimant was not paid on the ground that the final policy report was not forthcoming we are of opinion that the said case fully supports the contention of the complainant/petitioner that on the alleged ground of C.B.I. investigation his genuine claims cannot be withhold for such a long time without any fault on his part.

THE complainant/petitioner further cited a decision reported in I (1992) CPJ 117 in the case of Filmalaya (P) Ltd. v. Corporation Bank & Ors. where we observe that the Maharashtra State Commission held that there cannot be better example of a negligence than one it had come across in the complaint inasmuch as the amount of forged cheque Rs. 30,050/- which is admitted liability by the bank to the complainant/petitioner but the same was not paid for which the complainant/petitioner had to suffer tremendous loss on that account. Similarly in the instant case, the admitted liability to the complainant/petitioner by the bank is balance amount of Rs. 2,06,711 /- against the fixed deposit scheme of Rs, 5,46,550/- and the same is not yet paid causing tremendous financial loss to the petitioner.

The complainant/petitioner had to suffer the said loss on account of loss his business of construction work for which the opposite party/ Bank is liable to compensate.

ANOTHER decision in the case of P. Naga Bhushan Rao v. Union of India and ANOTHER reported in I (1991) CPJ 352 which lays down that inordinate delay in encashment of the certificate caused to the complainant/petitioner, a financial hardship and had suffered mental agony for the said reason, thereby the complainant/ petitioner claimed the damages of Rs. 1,00,000/- out of which the Andhra Pradesh State Commission awarded compensation and damages of Rs. 25,000/- to the complainant/ petitioner for the said delay in payment of the proceeds against the fixed deposit receipt. On the basis of our foregoing discussion, the complaint/ petition succeeds on contest.

WE award directing the opposite party/ Bank to pay the sum of Rs. 2,06,711/- to the complainant/petitioner together with interest at the rate of 18% p.a. effective from September, 1988 until payment of the said balance amount of Rs. 2,06,711/-. We further award Rs. 30,000/- to the complainant/petitioner towards compensation and damages suffered by the petitioner/complainant for such a long period due to non-utilisation of the said amount for his business purpose. We award cost of Rs. 1,000/- to the complainant/petitioner for this proceedings. The aforesaid awarded sums would be paid to the complainant/ petitioner within 30 days from the date of communication of this order. Complaint allowed with costs.