Before the District Consumer Disputes Redressal Commission, Rohtak.

                                                          Complaint No. : 323.

                                                          Instituted on     : 26.08.2020. 

                                                          Decided on       : 08.03.2022. 

Mukesh Kumar age 50 yeas s/o Sh. Chiranji Lal R/o VPO Gharauthi, Tehsil and Distt. Rohtak. 

                                                                   ………..Complainant.

                                      Vs.

1. Indusind bank Ltd. Branch at SCO 19 & 20 Subhash Park, Civil Lines, Rohtak through its Manager.
2. Karvi Computer Share Pvt. Ltd. Ashoka Plaza Rohtak through its Manager.
3. Reliance Power Ltd. Regd. Office at H.Block, 1^st Floor, Dhiru Bhai Ambani Knowledge City, Navi Mumbai-400710 through its Managing Director.
4. H.S.B.C.Bank, Birla Tower, 25 New Bara Khamba Road, New Delhi-110001.

……….Opposite parties.

COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.

BEFORE:  SH.NAGENDER SINGH KADIAN, PRESIDENT.

                   DR. SHYAM LAL, MEMBER.

Present:       Sh.Naresh Kumar, Advocate for the complainant. 

                   Sh. Nitin Goel, Advocate for the opposite party no.1.

                   Sh. Sandeep Sharma, Advocate for the opposite party no.4.

                   Opposite party no.2 given up.

                   Opposite party No.3 exparte.

                                                ORDER

NAGENDER SINGH KADIAN PRESIDENT:

1.                Brief facts of the case are that respondent no.3 in the year 2008 launched  shares vide scheme Reliance Power IPO and invited the general public to purchase shares of it. The complainant with intention to purchase the shares had submitted an application alongwith demand draft of Rs.25875/- issued from Indusind Bank branch at Rohtak which was duly acknowledged vide application no.64548552. After some days he received a message on his mobile wherein allotment of shares was confirmed but after verifying the complainant came to know that shares were not allotted in his account. After some days he received a cheque no.054341 dated 01.02.2008 of Rs.18565/- drawn on HDFC Bank Ltd.  in his favour from Reliance Power Ltd., IPO refund account. After the receipt of alleged cheque, complainant had deposited the above said cheque in his account but the same was returned unpaid vide memo dated 14.02.2008 for the reason payment stopped by drawer. Thereafter complainant moved an application dated 01.03.2008 to the respondent no.2 and it was told by respondent no.4 that the demand draft deposited by the complainant alongwith application had not been cleared by respondent no.1 as such the direction was given to stop payment of cheque issued to him on account of refund. Complainant approached respondent no.1 to know about not clearing of demand draft and it was clarified by it vide memo dated 14.07.2008 that DD no.113845 of Rs.25875/- had been passed in clearing  as the same was presented in Delhi centralized Clearing Cell on 23.01.2008 through HSBC bank Ltd. Thereafter complainant again approached the respodnentno.2 & 3 for refund of his amount and the respondents have assured to refund after verifying from the bank regarding status of payment of demand draft, but respondent no.2 and 3 kept on giving false assurance to the complainant waiting for many years but the matter could not be sort out. Feeling aggrieved the complainant had filed a consumer complaint on 25.12.2012 but lateron the same was dismissed as withdrawn on dated 25.03.2015. Thereafter the complainant moved an application to SEBI on dated 03.04.2017 which was registered vide memo no.SEBI P/MH17/0001474/1 dated 11.04.2017 and the matter was inquired and the respondent no.4 had given the reply to the effect that DD No.113815 had not been cleared/realized due to  “funds not received from the drawee bank”. Again the complainant made several representations to Indusind Bank branch at Rohtak dated 27.08.2018, 26.12.2018 26.02.2019 and so on but no satisfactory reply has been given by the respondent no.1. The act of opposite parties is illegal and there is deficiency in service on the part of opposite parties. Hence this complaint and it is prayed that opposite parties may kindly be directed to refund the amount of Rs.25875/- deposited on account of demand draft alongwith interest, compensation and litigation expenses as explained in relief clause. 

2.                After registration of complaint, notices were issued to the opposite parties. Opposite party no.4 in its reply has submitted that the “demand draft of Rs.25875/- “as mentioned in para no.2 of the complaint is in fact a cheque bearing no.113845. Opposite party no.2 maintains its bank account with the answering opposite party and in due course of business present cheques received towards payment for purchase of shares vide scheme-Reliance Power IPO . As regards the cheque bearing no.113845 drawn on OP No.1 i.e. Indusind bank issued by the complainant, the same was presented to the answering opposite party for collection. The said cheque was returned as per the records of the answering opposite party for the reason that “Fund not received from drawee bank”. The return memo of the said chqeue was handed over to the customer opposite party No.2 at the time of dishonor and the same was also conveyed to opposite party no.2 vide mail dated 31.08.2012. It is further submitted that the said return memo dating back to the year 2012 is not available in the records of the answering opposite party as the answering OP is obliged under the RBI guidelines to retain data and records for a period of five years only.  It is further submitted that the answering opposite party is only the collecting bank/payee bank and has no other role to play in clearance/honour of a cheque.   It is further submitted that in regard to the earlier consumer complaint, the complainant has not produced the order dated 25.03.2015 passed by this Commission and is himself stating that the same was dismissed as withdrawn. It is submitted that once this matter has been entertained  by this Hon’ble Commission, the complainant is precluded from approaching this Hon’ble Commission yet again for the same cause of action. The cause of action accrued to the complainant in 14.02.2008 i.e. when the refund cheque bearing no.054341 was returned as unpaid and the complaint could have been filed within two years. It is further submitted that the complainant has not even prayed in his complaint for condonation of delay explaining the gap of nearly 12 years between the date when cause of action accrued and the date of filing the present compliant. All the other contents of the complaint were stated to be wrong and denied and opposite party prayed for dismissal of compliant with costs.

3.                Opposite party no.2 was given up by the complainant vide its separately recorded statement dated 12.07.2021. Opposite party No.3 did not appear despite notice through registered post and opposite party No.3 was proceeded against exparte vide order dated 12.01.2022 of this Commission.

4.               Opposite party No.1 filed an application for rejection of complaint being barred by law of limitation on the ground that the complainant approached the respondent bank on 23.01.2008 for preparing a demand draft and the same has been issued by the Bank and the complainant in 2008 applied for shares of IPO Reliance Power in 2008. Now the grievance of the complainant is that the respondent no.4 is asserting that the said demand draft was bounced and whereas the stand of the applicant/respondent no.1 is that the same has already been cleared. Earlier also complainant has filed a complaint before DCDRF, Rohtak dated 25.07.2012 and due to technical defects same was dismissed as withdrawn on 25.03.2015. Again the complainant moved an application to SEBI on 03.04.2017. The present complaint has been filed in the year 2020. Further the complainant did not give particular of previous complaint and in the absence of the same it is quite difficult to ascertain whether any permission was sought for filing the fresh complaint or not by the complainant. The present complaint is being filed after an approximate period of five years after the dismissal of the previous complaint. As per Consumer Protection Act the limitation for filing a complaint is 2 years from the date of accrual of cause of action. The demand notice was issued in the year 2008 and if the complainant is having any grievance in that case the complaint can be filed within a period of 2 years i.e. upto 2010. But the earlier complaint was filed in 2012 i.e. after a period of 4 years and even the earlier complaint was barred by law of Limitation. Again the complainant filed a complaint before SEBI in the year 2017 i.e. after a period of 9 years and even after the expiry of two years from the date of withdrawing the earlier complaint. Now the present complaint has been filed in 2020 i.e. after a period of approx. 12 years. It is quite clear that the present complaint filed by the complainant is barred by law of limitation. Further it has already been given in writing on behalf of the respondent no.1 that the amount of the demand draft had already been paid by the respondent no.1 bank, hence the complainant has no cause of action for filing the present complaint. Had the payment was not made in that case how the complainant received a message from the company regarding allotment or refund cheque.  As such it is prayed that complaint of the complainant may kindly be rejected as is barred by law of Limitation.  

5.                In reply to the application complainant has submitted that there is continuous cause of action accrued to the complainant until lying the money with the respondent no.1 and the same has not been returned to the complainant. It is submitted that the cause of action never extended because cause of action never ended to the complainant.   All the other contents of the complaint were re-iterated in this reply by the complainant.

6.                We have heard ld. counsel for the parties and have gone through the material aspect of the case very carefully.

7.                 In the present case, complainant approached the respondent bank on in the year of 2008 for preparing a demand draft and the same has been issued by the Bank and the complainant applied for IPO Reliance Power in 2008. After some days he received a cheque no.054341 dated 01.02.2008 of Rs.18565/- drawn on HDFC Bank Ltd.  in his favour from Reliance Power Ltd., IPO refund account. After the receipt of alleged cheque, complainant had deposited the above said cheque in his account but the same was returned unpaid vide memo dated 14.02.2008 for the reason payment stopped by drawer. As such complainant has filed an earlier complaint before DCDRF, Rohtak dated 25.07.2012 but due to technical defects same was dismissed as withdrawn on 25.03.2015. Again the complainant moved an application to SEBI on 03.04.2017. The present complaint has been filed in the year 2020. The present complaint is being filed after an approximate period of five years after the dismissal of the previous complaint and after three years from the date of approaching to SEBI. As per Consumer Protection Act the limitation for filing a complaint is 2 years from the date of accrual of cause of action. The demand draft was issued in the year 2008 and if the complainant was having any grievance in that case the complaint should have been  filed within a period of 2 years i.e. upto 2010. But the earlier complaint was filed in 2012 i.e. after a period of 4 years. Again the complainant filed a complaint before SEBI in the year 2017 i.e. after a period of 9 years from the date of cause of action and even after the expiry of two years from the date of withdrawing the earlier complaint. Now the present complaint has been filed in 2020 i.e after a period of approx. 12 years from the date of cause of action and after 3 years from the date of approaching the SEBI. Hence the present complaint is barred by law of limitation.  Moreover, at the time of arguments, ld. counsel for opposite party No.4 has placed on file two documents i.e. ‘Annexure-JN-A’ and ‘Annexure JN-B’ , the statement of account of complainant, which shows that there is no transaction in the account of complainant w.e.f. 01.11.2007 to 31.10.2008. It is also on record that as per the complainant he submitted a demand draft of Rs.25875/- issued from Indusind Bank branch at Rohtak i.e. opposite party No.1 but on the other hand as per the opposite party No.4, they received cheque bearing no.113845 from the opposite party no.2 drawn on OP No.1 i.e. Indusind Bank issued  by the complainant and the same was presented to the opposite party for collection. Both the versions shows that there is also a dispute of DD and cheque in the present case. Hence the intricate questions of law and facts are involved in the present case and the matter in dispute requires elaborate oral and documentary evidence for proper adjudication of complicated issues that are involved. This can only be possible in appropriated trial in the Court of competent jurisdiction and not under the Consumer Protection Act where matters are decided in a summary manner. . As such application filed by ld. counsel for the opposite party No.1 for rejection of complaint is hereby allowed  and we hereby dismiss the present complaint on this limited ground with liberty to the complainant to file the complaint before competent Court of Law having jurisdiction in the matter.  

8.                Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.

Announced in open court:

08.032022.

                                                          ................................................

                                                          Nagender Singh Kadian, President

                                                          ..........................................

                                                          Shyam Lal, Member.