DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)   ISBT KASHMERE GATE DELHI

CC/ 17/2017

No. DF/ Central/

Ms. Inder Pal Kaur

W/o Mr. Balbir Singh,

Resident of H. No. 108,

Friedns Avenue App Power C,

Majitha Road, Amritsar,

Punjab

                                                                                                    .....Complainant            

                                                    VERSUS

Axis Bank, (Loan Centre)

Asaf Ali Road, Chhau Lal Mian,

Katra Chaubey Lal, Delhi – 110002

Through its Branch Manager

                                                                                                                                                   ....Opposite Party

Quorum  : Ms. Rekha Rani, President

                  Mrs. Manju Bala Sharma, Member

                    Shri R.S. Nagar, Member                                           

ORDER

Rekha Rani, President

1.     The instant complaint is filed by Ms. Inder Pal Kaur (in short the complainant) against the Axis Bank  (in short the OP) U/s 12  of the Consumer Protection Act 1986 as amended up to date (in short the Act) pleading therein the following facts :

She applied for allotment of flat with Greater Noida Industrial Development Authority (in short GNIDA) and got financed the registration amount of Rs. 1,99,000/- from Axis Bank (OP).   Complainant was declared allottee of flat in a draw held on 12 / 13 July, 2010 by GNIDA and accordingly an amount of          Rs. 1,99,00/- was deposited with GNIDA. 

     On demand of the OP vide letter bearing reference no. 4090/9429/32425/ETA-II dated 01/07/2010 complainant deposited the finance amount with interest amounting to Rs. 2,04,418/- on 22/10/2010.

     Complainant could not take possession of the flat due to some communication gap between him and GNIDA which resulted into cancellation of the same and refund of money after deduction of 10% of the advance amount.  Complainant was

under bonafide belief that refund upon cancellation would be deposited in her account by GNIDA whereas she was informed by GNIDA that the same was refunded and deposited with OP.

     Later on she came to know that GNIDA had deposited an amount of Rs. 1,79,100/ with OP after deduction of forfeiture amount of Rs. 19,900/-.

     Since complainant had already repaid the loan amount with interest to OP,   OP is liable to pay the refund amount received by it from GNIDA.  When OP did not heed to the request of the complainant she issued legal notice dated 16.08.2016 to OP asking for refund of Rs. 1,79,100/- with interest at the rate of 12% p.a. from the date of receipt of the same from GNIDA till realisation.

      OP did not pay back refund amount.  Hence the instant complaint seeking direction to OP to pay the refund of Rs. 1,79,100/- with interest at the rate of

12%, Rs. 2,00,000/- as compensation for causing mental agony, Rs. 55,000/- towards litigation expenses. 

2.     On receipt of notice OP contested the claim vide its reply.  It is pleaded that complaint is barred by limitation.  It is stated that complainant availed loan from the OP in the year 2010 and he paid back the same in the year 2010.  Further it is stated that there is no communication of the complainant with the OP within the limitation period of 02 years.  On merits it is stated that OP never received the payment qua cancellation of flat and therefore, it is not liable to refund any amount to the complainant.

3.     Parties filed their evidence by way of affidavits.  We have heard Smt. Sushma Sharma counsel for complainant and Shri J.K. Yadav counsel for OP. 

4.      Learned counsel for OP has contended that firstly OP is not liable to pay because it did not receive anything from GNIDC and secondly that complainant is waking up after a slumber of about 07 years.                       

5.   Section 24 (A) of the Act reads as under :

 ‘‘(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.

(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.’’

6.       Instant complaint was filed on 20/01/2017.  Learned counsel for the OP has submitted that OP sanctioned loan to the complainant in 2010 which was paid back

in the same year i.e. 2010.  There is no dispute about it.

7.    Complainant has not explained in the complaint as to how the instant complaint is filed within limitation.  There is not even a word in the complaint as to when cause of action arose for filing this complaint.

         Para 4 of the complaint is silent as to when complainant came to know that he was declared an allottee.

        Para 7 of the complaint is silent as to when complainant came to know about cancellation of allotment and refund of money. 

        Para 9 of the complaint is again silent as to when complainant came to know that GNIDA had deposited refund amount with OP.

8.     We confronted learned counsel for complainant with para 7 of the complaint with the word ‘‘lateron’’ used there.  We asked her to explain this expression.  She

was not able to specify any date, month or even year when complainant came to know about cancellation of booking of flat and refund by GNIDA.

     Same expression i.e. ‘‘lateron’’ is used is para 9 of the complaint.  Learned counsel for complainant was once again asked to specify date or even year when complainant allegedly came to know that GNIDA had deposited refund of Rs. 1,79,100/- with OP after deduction of forfeiture amount of Rs. 19,900/-.  She was unable to answer our query.

9.  Complainant has filed an application u/s 5 of the Limitation Act seeking condonation of delay in filing the instant complaint.   It is pleaded in the said application that complainant came to know from GNIDA about refund in April 2016.

       It is not explained as to how the complainant came to know from GNIDA only in the month of April 2016 about ‘‘refund of the booking amount.’’  There is no communication between GNIDA & the complainant in April 2016 to that effect.

     In his legal notice dated 16/08/2016 issued to OP complainant has nowhere

pleaded that it came to know in April 2016 from GNIDA about refund of the

amount. 

10.     The documents placed on record by the complainant herself are relevant in this regard.  Her email dated 14/12/2010 to indicates that she had received NOC from the OP which means that her loan account with OP was closed by that time.

       Her e-mails to GNIDA as well as OP dated 12/04/2011, 13/02/2011 indicate her grievance that she did not receive any allotment letter till date.  In her e-mail dated 18/07/2011 addressed to GNIDA as well as OP she wrote :                                                       

‘‘This is my Fourth & Final Reminder.  Now if I not receive any proper reply I have to take the route of Law because there is no response and neither any Allotment Letter till now.  It is now more than 17 months that I have applied in the scheme and I have allotted Flat No. 307 Pocket Block No. 05, Sector –ETA-02, which

i came to know from the Authority Website.  But after that there is no communication from the Gr. Noida authority or the Axis Bank.  I visited many time to the Gr. Noida Authority & Bank but there is no proper reply.  Every time you told that we will sent the allotment letter to your contact address.  But till date there is no information.’’

So Please look into the matter and give me a proper reply’’        

11.     Complainant vide her mail dated 18/07/2011 to GNIDA reproduced above clearly stated that she ‘‘will take the route of law.’’   But nothing happened for more than 06 years thereafter.  She never sued GNIDA either for allotment or refund of money and it is not explained as to why she did not do so.

     She has placed on record copy of her application dated 13.10.14 filed under Right to Information Act which is addressed to GNIDA in which inter alia she had asked whether she could still be allotted flat and if not how much time would it take to refund her money.  What happened to the said application is not explained anywhere. 

12.     Learned Counsel for the complainant has relied on judgment of Supreme Court in National Insurance Company Ltd. vs. Hindustan Safety Glass Works Ltd. Kanoria Chemicals & Industries Ltd. 2017 Law Suit (SC) 369 wherein it was held that the Act is beneficent legislation and that Limitation Act should not be strictly construed to disadvantage a consumer in a case where a supplier of goods or services itself is instrumental in causing a delay in the settlement of the consumer’s claim.

13.      Complainant had already settled loan amount of the OP way back in 2010. She had also obtained No Objection Certificate from OP.  Complainant has not explained as to how delay in filing the instant complaint could be attributed to the OP.  As discussed above she herself has persued her remedy casually and half

heartedly.  Vide her email dated 18/07/2011 she wrote to the OP as well as

GNIDA that this was her last reminder to them to do the needful failing which she would take appropriate legal remedy.  But nothing happened thereafter for more than 06 years. 

14.     Limitation does not start or end with writing letters here and there.  Complainant is not illiterate.   She knew where she had to go for redressal of her  grievances.  Law and equity aid the vigilant and not the indolent. If statute provides for specific limitation for filing a claim, it vests right with the OP on expiry of said limitation period which right should not be defeated by casual

condonation of huge, unexplained delay (Anshul Aggarwal Vs. New Okhla

Industrial Development, IV (2011)  CPJ 63 (SC).     

15.     In Ramlal Vs Rewa Coalfields Ltd , AIR 1962 Supreme Court 361, it was observed that diligence of the party or its bonafides are relevant facts to determine whether or not delay is reasonably and sufficiently explained.

 16.    

       “ Rule of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly.  The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by

approaching the courts. So a life span must be fixed for each

remedy. Unending period of launching the remedy may leading to unending uncertainty and consequential anarchy.

Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest ‘‘reipublicae up sit finis mum (it is for the general welfare that a period be putt to litigation).  The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.”

17.    In Office Of The Chief Post Master General & Ors  Vs Living Media India Ltd.& Anr., II (2012) SLT 312 it was held by the Apex Court that unless there is

18.    

20.     In Nirkari Industries Vs Noida Industrial Authority IV (2016) CPJ 121 the Hon’ble NCDRC did not entertain a complaint, since not filed within a period of two years from the date of cancellation of letter, since barred by limitation.

 “Condonation of delay when it is the complaint has to be taken very seriously and that is why proviso to sub section (2) of Section 24A mandates recording of

reasons. It must be understood that a suit filed in a Civil Court after the period of limitation prescribed under the Limitation Act has to be dismissed and there is no provision for condoning the delay on the ground of any sufficient cause being shown for not filing the suit within the period of limitation. This is the law which is in force since 1908 when the Limitation Act, 1908 came into force and same is the position of the Limitation Act, 1963. Subsection (2) of Section 24Ais a departure to the well-settled law that a suit beyond the period of limitation prescribed under the Limitation Act has to be dismissed. A Consumer Forum has, therefore, to guard

itself against the misuse of sub-section (2) of Section 24A and should not be quick to condone the delay unless cogent and verifiable reasons exist to condone the delay.”

21.    In Baswaraj  Vs. Spl. Land Acquisition Officer 2013 (14) SCC 81 the Hon’ble Supreme court held that it is settled legal proposal that law of

limitation may harshly affect a particular party so it has to be applied with

all its rigour when the statute so prescribes.           

22. 

encapsulate the concept of reasonableness and it cannot be allowed an unfettered

free play.

23.     In Sanjay Sidgonda Patil Vs National Insurance Co. Ltd & Ors, the

Apex Court while dismissing the  Special Leave to Appeal (Civil) No. 37183 of 2013 decided on 17.12.2013, upheld the order of the National Commission wherein the delay of 13 days was not condoned.

24.     In State Bank of India vs. B.S. Agricultural Industries (I) AIR 2009SC2210 it was held that :

‘‘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.’’             

25.    In view of the facts and judgments as discussed above the complaint is dismissed being barred by limitation.  Copy of the same be retained on record.  Copy of this order be sent to the parties as statutorily required. File be consigned to record room.   

          Announced on this ______   Day of  _______   2019.