Delhi

StateCommission

A/12/324

YOGESH KALRA - Complainant(s)

Versus

ICICI BANK LTD. - Opp.Party(s)

08 Sep 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

                                                                         Date of Decision : 23.09.2015

                        Date of arguments heard : 8.9.15

First Appeal No. 324/2012

(Setting aside the order dated 14.2.2012 passed in Complaint Case No.120/2008 passed by the District Consumer Dispute Redressal Forum – VII, Sheikh Sarai, New Delhi)

In the matter of

YOGESH KALRA

S/O LATE SH. C.L. KALRA

R/O M-25, (SECOND FLOOR)

GURU HARKISHAN NAGAR

DELHI-110087

……Appellant

Versus

 

1. ICICI BANK LIMITED

C-17, LOCAL SHOPPING CENTRE

PASCHIMI MARG, VASANT VIHAR

NEW DELHI-110057

 

2. DEPARTMENT OF INCOME TAX

THROUGH ITS COMMISSIONER

I.P. ESTATE

NEW DELHI (Deleted)

•  

CORAM

 

Justice Veena Birbal, President

 O.P. Gupta,Member(Judicial)

 

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.     To be referred to the reporter or not?

O.P. Gupta, Member (Judicial)

 

1.         The complainant has come in the present appeal against order dated 14.2.2012 passed by District Consumer Dispute Redressal Forum-VII, Sheikh Sarai, New Delhi  by which the complaint was dismissed. However a compensation of Rs.15,000/- as compensation for physical and mental harassment and Rs.5,000/- as costs of litigation was awarded.
2. The facts of the case are very peculiar. The complainant/appellant has saving bank account No.006501014787 with OP-1.  He got prepared fixed deposit with OP-1. In the statement of accounts for March, 2004, the complainant found a debit entry of Rs.24,668/- in his Saving Bank Account.  On approaching OP he was told that the said debit entry was on account of TDS (Tax Deduction of Source).  The TDS certificate did not show the said amount.  Rather the same showed deduction of Rs.16,137/- @10%   on interest income  of Rs.1,61,305/-.  The complainant requested OP to issue amended form 16-A by including Rs.24,668/- or else the sum of Rs.24,668/- be credited to his Saving Bank Account.
3. In the next financial year i.e. 2004-05, the OP deducted Rs.33,478/- from the Saving Bank Account but in Form 16-A, the TDS shown was Rs.2,164/- only.  The complainant made a complaint to Banking Ombudsman, his complaint was dismissed with the observations that OP bank debited the amount in respect of various erroneous amounts credited to his account and not as TDS.  Then the complainant filed a complain in the District Forum.  After going through the material on record and the evidence produced by the parties, the District Forum found that the amount deducted was not on account of TDS but on account of erroneous credits given in account of the complainant.
4. In appeal the grievances of the appellant is that there was no documentary evidence showing that his account was linked with FDR No.066150441711. Burden of proving that said FDR and relevant entries in the FDR were wrong, was on OP-1 who failed to discharge the same.
5. We have gone through the material on record and heard the arguments.  The appellant relied upon preliminary objection No. 4 in the written version of OP filed before the District Forum.  According to him the OP still maintain that TDS was deducted which has not been shown in the financial years due to technical problem in the software of the respondent.  We feel that appellant is trying to distort the defence and reading part of the defence taken by the OP.  The same is not permissible.  Written version has to be read as a whole.  The succeeding lines of same preliminary objection make it clear that the account of the complainant was debited by Rs.24,668/- and Rs.33,478/- on 31.3.04 and 15.5.04 respectively in respect of various amounts erroneously credited earlier in the account of complainant regarding FDR No.066150441711 and not as TDS.
6. The appellant further relied upon annexures C-I & K which shows that amount was deducted on account of TDS.  Again the Counsel for respondent pointed out that the said letters were written by mistake and that is why the District Forum has awarded a compensation of Rs.15,000/-.  Otherwise the amount was deducted on account of wrong credit given to the appellant.  The OP bank proved wrong credits by way of affidavit of Sh. Jai Prakash Gogia, Sr. Officer.  That affidavit contained reference to letter dated 24.5.07 and 26.8.07 which are  Ex.  as RW-/1 and RW-1/2.  The same findings were recorded by bank Ombudsman.  The findings of bank Ombudsman even if not binding on the District Forum or this Commission has a persuasive value atleast.  We find our-self in complete agreement with the contention of the Counsel of the Respondent.
7. Moreover the Counsel of the respondent pointed out that the complaint before the District Forum was time barred.  This objection has been taken by OP as preliminary objection No. 6 but the same has not been dealt with by the District forum  Since the issue is purely legal we do not want to remand the matter on this ground alone.  Rather we have examined the objection ourselves.  The Counsel for the respondent pointed out that debit entries were made on 31.3.04 and 15.5.04, the the complaint could have been filed by 15.5.06 but the same was filed in 2008.
8. The complainant wanted to make out that he has been pursuing his remedy before Bank Ombudsman and if the time spent there is excluded, the complaint was within the limitation.
9. The Counsel for the respondent refuted the above arguments by relying upon decision of the National Commission in SAPRI GARMENTS PVT. LTD. V. CANARA BANK  (2007) CPJ 379 in which it was held that complaint going to Bank Ombudsman can not extend limitation.  He also relied upon decision of Hon’ble High Court of Delhi in Ahalavath Organics Ltd. V. State Bank of Mysore 194 (2012)DLT 698. In para 18 it was held that in order to attract the provisions of Section 14 of the Limitation Act, the appellant must show that he was pursuing a remedy in a Court without jurisdiction in a bona fide manner and with due diligence.  In para 19 it was held that Bank Ombudsman is not a court within the meaning of Section 14 of the Limitation Act. Thus exclusion of time spent in pursuing ready before the Banking Ombudsman can not be executed.
10. In view of the above decisions we find that the complaint was barred by limitation and should have been dismissed on that ground alone.  In any event, the order is based upon evidence and there is no ground to interfere with the findings that the complaint is liable to be dismissed on merits.
11. The appeal fails and is dismissed.
12. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum.     

        File be consigned to record room.

 

 

(Justice Veena Birbal)

President

 

 

 

(O.P. Gupta)
Member (Judicial)