BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 15^th DAY OF FEBRUARY 2018

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against Opposite Parties (herein after referred as OPs) with a prayer to direct OPs to pay him compensation of Rs.10,00,000/- for deficiency of service together with cost of litigation.

2. The brief allegations made in the complaint are as under:

That the complainant had a savings Bank account in OP-2 Bank, having S.B account No.04812010005740.  That the complainant in order to purchase a used car for his personal, approached OP-1 Bank for vehicle loan in the month of July 2007 and was sanctioned a loan of Rs.3,20,000/- and OP-1 disbursed a sum of Rs.3,18,900/-.  That the said loan was to be repaid in 48 EMI’s of Rs.9,020/- per month beginning from 07.08.2007 to 07.07.2011.  That the complainant purchased a Maruthi Esteem VXI model bearing registration No.KA-03-MD-2611.  That since OP-1 Branch was far away from the house of the complainant, the complainant who was having S.B account in OP-2 Bank which is nearer to his house and instructed OP-2 to pay EMI of Rs.9,020/- every month to OP-1 Bank on his behalf through Electronic Clearing System (ECS).  That the complainant all along made sure that his account with OP-2 had sufficient funds to enable the OP-2 to successfully carry out payment to OP-1 through ECS.  That the last EMI was to be paid on 07.07.2011, accordingly the same was paid.  Though the entire loan amount was cleared as agreed upon by complainant, OP-1 failed to issue him clearance certificate.  That since the complainant was preoccupied with his construction related activities and was suffering from diabetes, could not persuade the matter.  That despite his many personal visits, OP-1 failed to give him clearance certificate. 

That lastly in the month of May 2014 when the complainant insisted that, he shall be given clearance certificate OP-1 gave him a detailed statement of the entire loan transaction and a letter stating that five EMIs have bounced for which he is liable to pay cheque bouncing charges.  That since the EMI’s were to be cleared through ECS.  The question of cheque bounce and levying cheque bounce charges does not arise.  That, OP-1 has not yet issued clearance certificate to complainant and demanding him to pay a total sum of Rs.2,670/-.  That, OP-1 is refusing to issue clearance certificate on the ground that complainant is due in a sum of Rs.2,670/- despite the fact that the complainant has cleared the entire loan amount on 07.07.2011.  That, the complainant intends to sell the said car but he cannot do so without NOC.  That the complainant is suffering huge loss by keeping the car with him as the value of the car is depreciating every month.  That, due to deficiency of service on the part of OP Banks, the complainant is put to great hardship and inconvenience.  Therefore, complainant prays for compensation of Rs.10,00,000/- for the deficiency of service on the part of OP Banks.

3. In response to the notice issued, OP-1 appeared through their advocate and filed their version.  The sum and substance of the version is as under:

That the complainant is not a ‘consumer’ as defined under the Consumer Protection Act.  Therefore, the complaint is not maintainable in this Forum.  That, the complaint is barred by limitation since the complainant has not approached the Forum within a period of two years from the date of cause of action.  It is true that, the complainant was sanctioned a loan of Rs.3,20,000/- towards purchase of used car and complainant agreed to repay the said loan in 48 monthly installments of Rs.9,020/- starting from 07.08.2007 to 07.07.2011.  That, it is true that, complainant had issued ECS mandate to repay the installments through Electronic Clearing System.  That complainant committed default in paying the installments through ECS as per the terms of the agreement.  That the complainant is liable to pay the cheque bouncing charges and late payment penalty in terms of the agreement in the event of committing default. 

That, the complainant had issued ECS mandate in favour of OP-1 to honour the monthly installments by Electronic Clearing System from his savings bank account maintained with OP-2 Bank.  As per the terms and conditions, it is duty of the complainant to honour the ECS on or before every 07^th of English calendar month.  However, the complainant defaulted in maintaining the sufficient balance in his savings Bank account maintained with OP-2 to honour the ECS for the month of May (07.05.2008), August (07.08.2008), January (07.01.2009), December (07.12.2010) and February (07.02.2011).  The ECS for 07^th May 2008, 07^th August 2008, 07^th January 2009, 07^th December 2010 and 07^th February 2011 have bounced for the reason that the complainant failed to maintain sufficient balance in his S.B account maintained with OP-2 Bank.  Since the above mentioned ECS were bounced, the complainant is liable to pay cheque bounce charges of Rs.450/- per return.  That the complainant has not produced the complete Bank statement pertaining to his savings Bank account alleged to have been issued by OP-2.  It could be seen from the statement of account produced by the complainant, he has purposely has not produced the statement of accounts from 1^st to 09^th of May 2008, 31^st August 2008 to 10^th January 2009 and 11^th February 2009 to 1^st April 2010 in order to make wrongful gain.

The ECS for the month of May 2008 was honoured on 22.05.2008 on representation which was supposed to honour on 07.05.2008.  As could be seen from the entries in the savings Bank statement of account dated 06.08.2008, the complainant was maintaining the negative balance to honour the ECS.  That the entries in the savings bank statement of account from 06.08.2008 to 12.08.2008 proves that, the complainant was maintaining negative balance i.e., (minus) -5622/-.  The ECS was honoured on 19.08.2008 on representation instead of 07.08.2008.  Similarly the complainant has failed to maintain sufficient amount in his savings bank account held with OP-2, on 07^th January 2009, 07^th December 2010 and 07^th February 2011 as a result the ECS presented on 07^th January 2009, 07^th December 2010 and 07^th February 2011 have bounced.  When such being the fact the complainant is not at all justified in alleging deficiency of service on the part of this OP and he has approached this Forum by suppressing the actual transaction and facts.

That the complainant knowing fully well that there is a delay in honouring of ECS for the above mentioned months has approached this Forum by suppressing the factual situation.  The complainant is also aware that, he is liable to pay cheque bouncing charges of Rs.450/- on each dishonour and also liable to pay 2% of late payment charges per month on unpaid EMI’s.  That all other allegations made by the complainant are all false and baseless.  That the complainant has approached this Forum for making wrongful gain despite knowing fully well that there is no any deficiency on the part of OP Bank and the alleged claim is barred by limitation.  Therefore, OP-1 prays for dismissal of the complaint with exemplary cost.

OP-2 appeared through their advocate and filed their version.  The sum and substance of the version is as under:

That it is true that, this OP was to remit the loan installments in respect of loan availed by the complainant from OP-1 through EMI of Rs.9,020/- each from his S.B account No.04812010005740 maintained with this OP Bank.  That this OP has carried out his instruction in respect of all the 48 EMIs.  That there is no any deficiency on the part of OP.  That as per the instructions of the complainant, OP-2 has remitted EMI on 07^th of every month through ECS mode of payment to OP-1 from 07.08.2007 to 07.07.2011 except disputed 5 payments which are given below.

That the above mentioned 5 disputed payments were delayed not because of any fault on the part of this OP but because of fault on the part of complainant in not providing sufficient balance in his S.B account.  That both on 07.12.2010 and 07.02.2011 though the complainant had deposited the requisite amount very same day but the said deposits were made subsequent to 11.00 A.M, which was the time when the ECS payments are generally made.  That the complainant had deposited a sum of Rs.9,000/- and Rs.10,000/- on 07.12.2010 and 07.02.2011 respectively at 11:18:23 AM and 11:15:18 AM respectively which was beyond the ECS time of 11.00 AM.  Therefore, the said amounts were remitted subsequently on 18.12.2010 and 18.02.2011.  That the present complaint filed is barred by limitation and the complainant has not assigned any valid reasons for inordinate delay in filing the complaint.  That though the complainant had not issued any cheques, but it appears that, the ECS payments might have been treated with cheque bouncing by OP-1 and they might have debited cheque bounce charges to his account for which this OP has no comments to make regarding statement given by OP-1 by demanding Rs.2,670/- from complainant as dues for such delayed payments as stated above.  That this OP has remitted the EMI as per the instructions of complainant regularly except the above mentioned 5 disputed EMI’s because of the failure of OP in maintaining sufficient balance in his account. 

For the above amongst other reasons, OP-2 prays for dismissal of the complaint with exemplary cost.

4. The points that arise for our determination in this case are as under:

        5. Complainant as well as OPs.1 & 2 tendered their evidence by way of affidavit reiterating their respective contentions.  Both parties have produced certain documents in support of their contentions.  Written arguments have been filed.  We have also heard oral arguments.

6. Our answer to the above points are as under:

REASONS

7.  The first and foremost objection that was raised by both OPs.1 & 2 is that, the complaint filed by the complainant is barred by limitation.  It is contended by the OPs that, according to the allegations made by the complainant, the cause of action arose on 07.07.2011 and he was to approach the Forum within two years from 07.07.2011 but he has filed the present complaint on 25.07.2014 much beyond the limitation provided U/s.24 A of the Consumer Protection Act, 1986.  In para-4 of the complaint, complainant alleges that, even after payment of last EMI on 07.07.2011 OP-1 did not issue him clearance certificate/NOC and since he was preoccupied with his construction and was suffering from diabetes could not pursue the matter.  He further alleges that, lastly in the month of May 2014 when he insisted OP-1 that, he shall be given clearance certificate, the OP-1 gave him a detailed statement of entire loan transaction and a letter stating that, though all the EMIs are paid, 5 EMIs have bounced and the complainant is liable to pay a sum of Rs.2,250/- towards cheque bouncing charges and Rs.420/- towards late payment penalty charges.  After receipt of the said letter which is produced at document No.1, the complainant approached this Forum.

8. Admittedly the complainant was to receive the clearance certificate/NOC from OP-1 immediately after 07.07.2011 when the last installment was cleared.  Complainant claims that, despite his personal visits, OP-1 did not oblige and issued clearance certificate.  He further claims that, since he was preoccupied with his personal work and also he was suffering from diabetes, he could not pursue the matter thereafter and could not approach this Forum at an early date.  Section 24-A of Consumer Protection Act, 1986 provides that the District Forum shall not admit a complaint unless it is filed within two years from the date, on which the cause of action has arisen.  Complainant alleges that, finally in the month of May 2014 when he insisted for clearance certificate, he was issued with a detailed statement of entire loan transaction and letter stating that, he is liable to pay a sum of Rs.2,250/- towards cheque bounce charges and Rs.420/- towards late payment penalty charges.  According to him, the cause of action has arisen in the month of May 2014 when he was issued with the letter at document No.1 produced by him which appears to have been issued on 25.08.2014.  Therefore, he claims that, the complaint is filed within limitation.

9. Section.24-A of Consumer Protection Act, 1986 deals with period of limitation and the same reads as under:

“24-A. Limitation period.—(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”.

10. As provided sub section 1 of 24-A of Consumer Protection Act, 1986, a complaint is maintainable if it is filed within period of two years from the date of cause of action.  Further as provided in sub section 2, the Forum can condone the delay in filing the complaint, if at all the complainant has sufficient cause for not filing the complaint within a period of two years.  In the instant case on hand, we cannot agree with the complainant that the cause of action arose in the month of May 2014 when he was issued with letter at document No.1 issued by OP-1.  Complainant ought to have approached this Forum for redressal within a month or two from the date of payment of final EMI on 07.07.2011.  Complainant claims that, as he was preoccupied with the construction related activities and health issues, he could not pursue the matter.  Complainant has not produced any documentary evidence to substantiate that, he was engaged with any construction activities during the relevant period and was suffering with any health issues as he is stated to be a diabetic patient.  Moreover complainant has also not filed any application along with the complaint assigning the reasons or showing sufficient cause for not filing the complaint within a period of two years as provided U/s.24-A of the Consumer Protection Act, 1986, seeking condonation of delay.  Even in the complaint, complainant does not pray for condonation of delay, if any, in filing the present complaint.  Complainant ought to have filed the present complaint within two years immediately after he could not get the clearance certificate from OP-1 and immediately after payment of EMI on 07.07.2011.

11. The learned advocate for OP-1 placing reliance on a judgment rendered by the Hon’ble Supreme Court in a case between State Bank of India V/s. M/s.B.S Agricultural Industries (I) reported in AIR 2009 Supreme Court 2210 argued that, the present complaint ought not to have been admitted at the first instance, since it was filed beyond the period of limitation and should have been dismissed at the threshold.  Perused the above cited judgment rendered by Hon’ble Supreme Court.  The Hon’ble Apex Court while dealing with the issue of limitation similar to the one on hand has opined as under:

(A) Consumer Protection Act (68 of 1986), S.24-A—Consumer complaint—Limitation – Provision as to, is peremptory – Forum not to admit complaint filed beyond limitation.

Provision as to limitation is peremptory in nature and requires consumer forum to see before it admits the complaint that is 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 if 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.  As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, sufficient cause has been shown any delay condoned for the reasons recorded in writing.

12. In view of the ratio laid down in the above cited authority and also the provisions contained in sub section 2 of 24-A of Consumer Protection Act, the complainant ought to have shown sufficient cause and sought condonation of delay in filing the present complaint.  However, the complainant did not seek condonation of delay and insist that the complaint is in time.  However for the reasons mentioned above, we are of the firm opinion that, the complainant ought to have presented this complaint within two years at least from 1^st of August 2011, if not within two years from 07.07.2011.  However the complaint has been filed only on 25.07.2014 which is clearly beyond the period of limitation.  Therefore, we are of the opinion that, the complaint is barred by limitation and is liable to be dismissed on this count alone.

13. The loan transaction between the complainant and OP-1 is admitted.  It is also admitted by OPs that, the complainant authorized OP-2 to remit the EMI of Rs.9,020/- per month through ECS from 07.08.2007 till 07.07.2011 in all amounting to 48 EMI’s.  As mandated by complainant, OP-2 has remitted the EMI’s on time except 5 EMI’s as shown in their statement of account and also shown in the version filed.  The EMI’s which were required to be cleared/paid on 07^th May 2008, 07^th August 2008, 07^th January 2009, 07^th December 2010 and 07^th February 2011 have not been remitted for the reason that, there was insufficient funds in the account of complainant.  The ECS request sent by OP-1 to OP-2 have bounced for the reason that, the complainant was not maintaining sufficient amount in his account to honour the request of ECS.

14. As could be seen from the material placed on record including the statement of accounts produced by the parties to the complaint, the ECS for the month of May 2008 was honoured on 22.05.2008 on representation which was to be honoured on 07.05.2008.  That statement of account dated 06.08.2008 disclosed that, the complainant was maintaining negative balance to honour ECS for the said month.  Entries of savings Bank account of complainant for the period between 06.08.2008 to 12.08.2008 disclose that, the complainant was maintaining negative balance of Rs.5,622/-.  Therefore, the ECS was honoured on 19.08.2008 on representation instead of 07.08.2008.

15. Similarly the complainant was not maintaining sufficient balance in his account to honour the ECS for the month of 07.01.2009 therefore the ECS was honoured on 19.01.2009 on representation instead of 07.01.2009.  That the statement of account of complainant dated 06.12.2010 discloses that, the complainant was having balance of Rs.1,220/- in his account.  Further the statement of account discloses that the complainant has deposited a sum of Rs.9,000/- only on 07.12.2010 subsequent to 11.00 AM which is beyond the ECS time.  Similarly the complainant did not maintain sufficient balance to honour the ECS on 07.02.2011 at 11.00 AM.  In fact the balance in his account was Rs.2,846/- as on 04.02.2011 and he has remitted sufficient amount to honour the EMI only subsequent to 11 AM.

16. Thus, it is evident from the above mentioned facts that, the 5 EMI’s could not be paid on time, not because of any fault on the part of OP-2, but because of the inability of complainant in maintaining the sufficient balance in his account.  On the above mentioned five occasions the ECS presented by OPs.1 & 2 have bounced because of insufficient balance in the S.B account held by the complainant in OP-2 Bank.  Therefore, it is contended by OP-1 that, in terms of the agreement the complainant is required to pay a sum of Rs.2,250/- towards cheque/ECS bouncing charges and Rs.420/- towards late payment penalty charges.  The complainant has to blame himself for the bouncing of the ECS and for late payment as he was not maintaining sufficient amount in his S.B account held in OP-2 Bank on the relevant date of payment of EMI.  Therefore, we do not find any fault on the part of OP-1 in demanding certain amount towards cheque bounce charges and towards late payment penalty charges.  In our opinion complainant is liable to pay the said sum of Rs.2,670/- to the OP-1 Bank in order to obtain the clearance certificate/NOC.

17. The complainant has failed to prove deficiency of service on the part of any of the OPs.  In view of the discussions made above, the complaint is liable to be dismissed for the reason that, it is barred by limitation and for the reason that the complainant is unable to prove the deficiency of service on the part of OPs.  Therefore, we are of the opinion that, the complainant is not entitled for any of the reliefs claimed.  Accordingly point Nos.1 & 2 have been answered.

18. The order could not be passed within the stipulated time due to heavy pendency.  

19.  In the result, we proceed to pass the following:

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is dismissed.  Parties to bear their own costs.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 15^th day of February 2018)

MEMBER                                                              PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 09.01.2015.

Sri.R.Ravindra

Documents produced by the complainants:

Witnesses examined on behalf of the Opposite party-1 dated 24.07.2015.

1. Sri.Kishore Kumar Hegde.

Document produced by the Opposite party-1:

Witnesses examined on behalf of the Opposite party-2 dated 24.08.2015.

1. Sri.P.Ponkumar.   

Document produced by the Opposite party-2:

MEMBER                                                             PRESIDENT

Vln*