ORDER ON APPLICATION OF THE COMPLAINANT FILED UNDER SECTION 5 OF THE LIMITATION ACT
SRI.J.N.HAVANUR, PRESIDENT
This is an application filed by the complainant under Section 5 of the Limitation Act, praying to condone the delay of 1170 days in filing the present complaint.
2. The brief facts of the application of the complainant can be stated as under.
The complainant had deposited a sum of Rs.93,503=00 on 23-6-2006, in the course of transaction, vide two CMS receipts bearing nos.1009190 and 1009191 for Rs.60,403=00 and Rs.33,100=00 with the OP. Out of the aforesaid amount of Rs.93,503=00 the amount deposited under CMS receipt No.1009191 has been credited to the account of the complainant, but the amount of Rs.60,403=00 deposited under CMS receipt
No.1009190 has not been deposited to the account of the complainant. Immediately, on noticing the above discrepancy in the account, the complainant has contacted the OP on several times personally and has appraised the OP of the discrepancy in the account. The OP after verification of the receipt, has admitted the receipt of the amount and had assured the complainant of crediting the same into the account. But the same has not been made till date. The complainant in order to keep the relationship healthy and due to long business relationship had heeded to the request of the OP all these days. As there was no response, on part of the OP, inspite of several requests and reminders through e-mails and letters, the complainant got issued a notice through its advocate on 24-6-2011 to the OP, and the notice was duly served on the OP, and the notice sent to M/s. CMS Securitas returned with a shara “left”. M/s. CMS Securitas has not been made a party to this complaint, as they are only the collection agents of the OP. Inspite of receipt of the notice, the OP has neither replied to the notice nor has come forward to make payment due to the complainant. The complainant has a good case on merits and if this application is not allowed, the complainant will be put to irreparable loss and hardship, which cannot be compensated, and if the same is allowed no loss or prejudice will be caused to the OP. Hence, the present application is filed under section 5 of the Limitation Act, praying to condone the delay of 1170 days in filing the complaint.
3. The OP has field objection to the said application contending inter-alia as under.
The plea of Limitation is normally and especially something that has to be raised at the threshold. In this case, the complaint filed by the complainant is hopelessly barred by Limitation, on the ground that, the subject matter in the said complaint dates back to a transaction alleged to have occurred on 23-6-2006, when the cause of action has arisen. As per Section 24A of the CP Act, a complaint is time barred if it is filed after 2 years from the date the cause of action arisen. Since, the complaint has been filed much after the expiry of two years, the complaint is time barred. There is no justification on the part of the complainant in filing the complaint with such undue delay. The application is without force and it is not maintainable. The complaint is bad for mis-joinder of necessary parties. The complainant is a responsible Public Limited Company exclusively dealing with financial matters and does not come under the definition of the CP Act. The complainant’s specific request, the OP bank had agreed to provide CDP service i.e. Cash delivery and pick up services at their doorsteps, through their agents subject to certain terms and conditions of which they have failed to comply within the time prescribed. Hence, it is prayed to dismiss the complaint with cost.
4. We have heard the arguments of both parties on the application of the complainant.
5. So from the averments of the application of the complainant and objection of the OP, the following points arise for our consideration.
1. Whether the application of the complaint praying to condone the delay of 1170 days is sustainable?
2. What order?
6. Our findings on the above points are:
Point no.1: No, It is not sustainable
Point no.2: For the following Order
REASONS
7. We have gone through the averments of application of the complainant, objection of OP filed to the present application, averments of the complaint, and the relevant documents of both parties. On perusal of the complaint in para no.7, it is stated categorically by the complainant that, the cause of action for filing this complaint was on 23-6-2006, when the complainant deposited the amount with the OP and has accrued on every other day, when the complainant requested the OP to rectify the mistake and deposit the amount, and in para no.5 of the complaint, it is further stated that, immediately on notice of the fact of not depositing the amount of Rs.60,403=00 under CMS receipt no.1009190, the complainant has contacted the OP on several times personally and has appraised the discrepancy in the amount. The OP assured the complainant of crediting the same in to the account, but the same has not been made till date. But, it is pertinent to note from the complaint of the complainant that, the complainant has not stated the date of CMS receipt no.1009190, so also he has not clarified on which date he requested the OP to rectifying the discrepancy and on which dates the OP assured the complainant of crediting the amount of Rs.60,403=00. The entire complaint is silent on this vital aspect for the reason best known to the complainant.
8. Looking to the copies of CMS receipts produced by the complainant, slip no.1009190 is for Rs.60,403=00 dated 23-6-2006 being amount in question and another CMS receipt slip no. 1009191 is for Rs.33,100=00 dated 22-6-2006, and in respect of this receipt dated 22-6-2006, there is no disputed at all. When the complainant noticed the discrepancy of not crediting the amount of Rs.60,403=00 to his account, he ought to have been made correspondence with the OP from 22-6-2006. Instead of doing so, the complainant has kept mum for a period of nearly about 3 years and issued notice only on 24-6-2011 after expiry of more than 2 years. As per Section 24A of the CP Act, the complaint of the complainant is barred by limitation. So looking to the averments of the complaint of the complainant, objection of the OP filed to the application of the complaint, CMS receipts, we are of the considered opinion that, the reasons stated by the complainant in the present application to condone the delay of 1170 days is not satisfactory, and the present complaint is barred by limitation, as the complaint has been filed after expiry of more than 2 years under section 24A of CP Act, and there is no justification on part of the complainant in filing the complaint with such undue delay of 1170 days, and as such we hold that the complaint is barred by limitation and accordingly, 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 the complaint filed under section 5 of the Limitation Act dated 05-09-2011 is dismissed. The complaint of the complainant is dismissed as barred by limitation.
Under the circumstance, both parties shall bear their own cost.
Dictated to the Stenographer, Got it transcribed and corrected, Pronounced on the Open Forum on this 20th December 2011.
Member Member President
