29.03.2016
MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER
The present Appeal u/s 15 of the Consumer Protection Act, 1986 is directed by the Complainant challenging the judgment and order dt. 2.4.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Unit-I, Kolkata in CDF Case No. CC/14/201, dismissing the Petition of Complaint on the ground of limitation.
Facts of the case, as arising from the materials on records, are, in short, that the Appellant/Complainant opened in the year 1996 a Savings Bank Account No. 6135 on ‘E or S’ basis with the OP/Respondent-Bank jointly with one Mr. Santosh Kumar Banerjee. The said Satosh Kumar Banerjee being one of the joint account-holders died on 28.1.1997 when there was a credit balance of Rs. 75,000/- with the said Savings Bank Account. With the death of the said joint account-holder the instruction of ‘stop payment’ in respect of the said account by the deceased account-holder, which was issued for the interim period, ceased to exist as averred in the Petition of Complaint. After such expiry of one of the two joint account-holders the surviving account-holder , i.e. the Appellant/Complainant, became the sole and absolute owner of the money lying in deposit in the said Savings Bank Account as averred in the Petition of Complaint. But the Respondent/OP-Bank denied the benefit of the said Savings Bank Account to the surviving joint account-holder showing the ground that the legal heirs of the deceased joint account-holder have objected to operation of the same. During such deadlock the Respondent/OP-Bank, without settling the claim of the surviving joint account-holder till date, continues to accept ‘periodical and/or quarterly Service Charges towards the Savings Bank Account maintenance till date’ as it is revealed from the Memo of Appeal. Even after service of Lawyer’s Notices dated 21.12.1996 and 18.1.2014 by the Appellant/Complainant, the Appellant/Complainant got no redressal from the Respondent/OP-Bank. Then the Complainant moved the Ld. District Forum which passed the judgment and order impugned dismissing the Complaint on the ground of limitation as stated at the outset. Aggrieved by such order the Complainant has filed the instant Appeal.
The Ld. Advocate for the Appellant/Complainant submits that the Ld. District Forum erred in law in dismissing the Complaint on the ground of limitation without correctly appreciating the fact that the Respondent/OP-Bank, without settling the claim of the Appellant/Complainant being the surviving joint account-holder of the Savings Bank in question, restricted the operation of the said S.B.Account which was opened on ‘Either or Survivor’ basis.
The Ld. Advocate adds that without settling the aforesaid claim of the Appellant/Complainant, the Respondent/OP-Bank has continued to accept the periodical Service Charges for maintenance of the said S.B.Account and hence, for such non-settlement of the claim in question of the Appellant/Complainant till the filing of the Complaint as also for the fact of continuity of acceptance of Service Charges for the S.B.Account concerned the cause of action of the Appellant/Complainant still continues.
The Ld. Advocate further submits that without considering the fact of continuity of the non-settlement of the claim in question of the Appellant/Complainant and also of continuity of acceptance of Service Charges for the Savings Bank Account concerned the Ld. District Forum passed the order impugned illegally and hence, the same should be set aside and the case be remanded before the ld. District Forum for adjudication afresh on merits.
On the contrary, the Ld. Advocate for the Respondent/OP-Bank submits that the Ld. District Forum did not commit any error in dismissing the Complaint on the ground of limitation as the cause of action arose on 21.2.1997 when the Appellant/Complainant issued Lawyer’s letter requesting the Respondent/OP-Bank not to restrict the operation of the Savings Bank Account in question.
The Ld. Advocate further submits that meanwhile by a letter dt. 13.2.1997 one legal heir, i.e. Sri Sanat Kumar Banerjee by name, raised objection against the operation of the Savings Bank Account in question by the surviving joint account-holder, i.e. the Appellant/Complainant, thereby putting the Respondent/OP-Bank in dilemma in respect of allowing the operation of the S.B.Account by the Appellant/Complainant and hence, non-settlement of the claim of operation of the said S.B.Account by the Appellant/Complainant is not intentional on the part of the Respondent/OP-Bank.
The Ld. Advocate finally submits that in view of the aforesaid submission, the impugned judgment and order should be sustained there being no illegality in the impugned judgment and order.
We have heard both the sides, considered their rival submission and perused the materials on records.
The Petition of Complaint reveals that the claim of the Appellant/Complainant before the Respondent/OP-Bank in respect of allowing the Appellant/Complainant, being the surviving Joint Account-holder, to operate the S.B.Account concerned has not yet been settled by the Respondent/OP-Bank. Besides, it is also revealed from the Memo of Appeal that the Respondent/OP-Bank is still continuing to accept the Service Charges for maintenance of the S.B.Account in question. The aforesaid fact clearly points to the continuity of cause of action of the Appellant/Complainant.
It is well-settled that the cause of action continues unless and until the account-holder, as is the Appellant/Complainant in the case on hand, gets his money back. In this context, reference is made to a decision of the Hon’ble National Commission in Chief Manager, Allahabad Bank Vs. M/s. Paper Product Machines, decided on 10.10.2012 in R.P.No. 3630 of 2012, wherein it was held, “The said cause of action is continuing unless and until the complainant gets that amount”. The Hon’ble National Commission further echoed the same view in State Bank of Patiala Vs. Ram Kishan & Anr., decided on 1.5.2013 in R.P.No. 4320 of 2012, wherein it was held, “The complainants have continuous cause of action till they get their money back”.
On the above facts and evidence on records and also respectfully following the aforesaid decisions of the Hon’ble National Commission we are unable to agree with the conclusion of the Ld. District Forum in the impugned judgment and order.
Consequently, the instant Appeal is allowed, the impugned judgment and order is set aside and the case is remanded to the Ld. District Forum for adjudication afresh on merits upon restoring the Complaint Case to its original number. No order as to costs.
