Complaint filed on: 02-01-2014
Disposed on: 10-06-2014
BEFORE THE BENGALURU IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BENGALURU URBAN DISTRICT, NO.8, 7TH FLOOR, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BENGALURU – 560 052
C.C.No.36/2014
DATED THIS THE 10th DAY OF JUNE 2014
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.H.JANARDHANA, MEMBER
Complainant: -
Mr.Dinshaw Cawasji,
S/o. Kali D.Cawasji,
Aged about 50 years,
No.16, Alexandra Street,
Richmond Town,
Bangalore-25
V/s
Opposite parties:-
1. HDCF Bank Limited
Mahatma Gandhi Road Branch, Post box no.5106, Shankaranarayana Building, 25/1, Mahatma Gandhi Road, Bangalore-01
Reptd by its Branch Manager,
2. HDFC Bank Limited, Richmond town branch, 8/24, Salco Centre, Richmond Town, Bangalore-01
Reptd by its Branch Manager,
ORDER ON THE APPLICATION OF COMPLAINANT FILED UNDER SECTION 24A (2) OF CP ACT,
DATED 2-1-2014.
SRI.J.N.HAVANUR, PRESIDENT
This is an application filed by the complainant under section 24A (2) of CP Act, praying to condone the delay of 42 days in filing the present complaint.
2. The brief facts of the application of complainant can be stated as under.
The cause of action in respect of the present complaint arose on 15-12-2010 when the OPs failed to make the advance tax payment as per the instruction of the complainant to the Income Tax Department on behalf of the complainant. The cause of action in respect of the present complaint again arose on 20-12-2010 when the OPs finally made the advance tax payment. The cause of action also arose on 21-9-2011 when the complainant received a tax intimation informing him of his interest liability after which the complainant addressed a letter to both the OPs, the complainant against the failure and negligence on the part of the OPs to transfer funds to the income tax department. The cause of action arose again on 22-9-2011 when the 1st OP replied to the complainant and the cause of action finally arose on 21-11-2011 when the complainant addressed a letter to the OPs informing them of their liability to pay interest computed at Rs.8,10,000=00. Till date, the OPs have failed to reimburse the complainant. The cause of action last arose on 21-11-2011 and in view of the same the limitation period for filing the complaint expires on 20-11-2013. On account of the same, there is a delay of 42 days in filing the complaint. After addressing letters to the OPs in Dec.2011 he got in touch with his accountant and sought reference of an advocate with whom he could discuss the issue to avail legal recourse and his accountant introduced him to a lawyer and pursuant to several meetings, since the lawyer had failed to show any progress till June 2012 therefore he forced to search for a new counsel. One M.S.Mariappa, in Aug.2012 and he was informed that the said counsel was empanelled with the OP bank and would not be able to take up the matter and he was introduced to another counsel by name one Adarsh Gangal in Dec.2012 who suggested various other measures but failed to take any action in that regard till Feb.13. A trail of emails exchanged with the counsel is produced. In the meantime, his mother became extremely ill and was hospitalized at St. Philomena’s hospital first from 20-4-2013 to 1-5-2013 thereafter she was again admitted on 3-5-2013 and 16-5-2013 and again on 31-5-2013 and 1-7-2013 and finally she was admitted on 8-7-2013 and she expired on 22-7-2013. On account of this, he was required to spend time at the hospital and tend to family matters and was unable to concentrate on the present issue. After death of his mother the complainant had to tend to his family matters and her various estate related issues and was again unable to take up the present issue. Finally the complainant was relived of all the commitments and approached counsel in Dec.2013 and they have prepared the present complaint to be filed before the forum. The delay of 42 days in filing the complaint is for the bona-fide reasons and there is no mala-fide intent behind the same, so it is prayed to condone the delay, in the interest of justice and equity.
3. The counsel for the OPs have filed objection to the said application of complainant that, the application of complainant is not sustainable. The complainant could have instituted the complaint before the forum if really felt that he was aggrieved by the act of the OPs. The complainant has not properly explained the reason for the delay except for relying on an email from an advocate during Feb.2013 and medical treatment of his late mother and being silent during the whole of the year 2012. As stated by him the alleged cause of action arose during 21-11-2011. The explanation for the alleged delay is only made up to again the sympathy of this forum and there is no legal explanation for the delay. The present application filed is not maintainable and it is dismissed in limine. The complainant has not made out any valid ground to entertain the application, so the application of complainant is liable to be dismissed with exemplary cost, in the interest of justice and equity.
4. So from the averments of the application of complainant and objection of the OPs, the following points arise for our consideration.
1. Whether the application of complainant filed under section 24A (2) of CP Act seeking to condone the delay of 42 days in filing the complaint is sustainable?
2. What order?
5. Our findings on the above points are;
Point no.1: No, the application is not sustainable.
Point no.3: For the following reason
REASONS
6. We have heard the arguments of both sides on the application of complainant and we have gone through the averments of application of the complainant, objection of OPs filed to the present application, recital of the complaint and relevant documents of complainant scrupulously.
7. On perusal of the application of complainant filed under section 24A (2) of CP Act wherein the complainant has stated in his affidavit filed along with application that the cause of action last arose on 21-11-2011 and limitation period for filing the complaint expired on 20-11-2011 and on account of the same there is delay in 42 days in filing the complaint. The complainant has stated in his affidavit along with application that, his accountant introduced a lawyer but that lawyer failed to show any progress till June 2012 and he was forced to search for a new counsel and then he approached the new counsel M.S.Mariayappa in August 2012 and he was informed that the said counsel was empanelled with the OP bank and he would not be able to take up the matter and thereafter he was introduced to another counsel by name Adarsh Gangal in Dec.2012 but that lawyer failed to take any action till Feb.2013 and thereafter his mother was hospitalized at St.Philomena’s hospital from 20-4-2013 to 1-5-2013 again on 3-5-2013 to 16-5-2013 and again 31-5-2013 to 1-7-2013 and finally admitted on 8-7-2013 and expired on 22-7-2013. On account of this he was required to spend time at the hospital and tend to family members and he was unable to concentrate on the present issued and finally once he was relieved of all the commitments he approached his counsel in Dec.2013 and prepared the present complaint and filed before the forum and the delay of 42 days in filing the complaint is for the bona-fide reasons and there is no malafide intent, so the delay to be condoned.
8. As per the averments of application of complainant the cause of action last arose on 21-11-2011 and within 2 years from that date the complainant ought to have filed the present complaint before the forum at least on 22-11-2013, but the present complaint came to be filed on 2-1-2014. As per the records and explanation for delay of 42 days is for not getting counsel of his choice and hospitalization of his mother and also the death of his mother. In order to show that, the mother of complainant was hospitalization, the complainant has produced copies of discharge summaries of St.Philomena’s Hospital, Bengaluru and as per these records the mother of complainant was admitted and discharged from 20-4-2013 to 1-5-2013, 3-5-2013 to 16-5-2013 and 31-5-2013 and 1-7-2013 and she died on 22-7-2013 as per the death extract produced by the complainant and from 23-7-2013 to 20-11-2013 no proper and satisfactory explanation was given by the complainant for not making sincere efforts to approach the forum with complaint for the reason best known to him. So also no convincing and documentary evidence is produced by complainant, the explaining the delay of 42 days satisfactorily. The complainant has produced the copies of order passed by Income Tax Department alongwith calculation sheet made by the Income Tax Department. The said document goes to reveal that the Income Tax Department has made calculation not only on the amount of complainant kept as FD in the OP bank but also on the other property and order was passed by the Income Tax Department on 21-9-2011 and called upon the complainant to pay a sum of Rs.8,10,085=00 within 30 days from the date of receipt of intimation of the order. Legal notice copy produced at document no.8 of complainant shows that on 15-12-2010 the complainant has sent Income Tax challan for payment of advance tax of Rs.2,70,000=00 along with cheque dated 15-12-2010, but the bank has transferred the fund to the department on 20-12-2010, so the complainant has quantified the interest that will be claimed by the Income Tax department as Rs.8,10,000=00 and this has happened because of delay payment of OP, so the bank has to reimburse the same. But it is pertinent to note from the recital of complaint and relevant documents of the complainant produced by the complainant that the complainant was totally silent during the entire year 2012 though the cause of action arose during the 21-11-2011. The explanation offered by the complainant to condone the delay of 42 days in filing the complaint is not satisfactory and convincing by placing clear and tangible documentary evidence. So in view of not giving proper and satisfactory explanation by complainant with proper documentary evidence to condone the delay of 42 days, there is no question of condoning the delay as prayed in the application of complainant and as such the application of complainant filed for condoning the delay in filing the present complaint is not maintainable, so we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order.
ORDER
The application of complainant filed under section 24A (2) of the CP Act dated 2-1-2014 is hereby dismissed. No cost. The complaint of the complainant is hereby dismissed as time barred.
Supply free copy of this order to both parties.
(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 10th day of June 2014).
MEMBER PRESIDENT
