Per Mr.Justice S.B.Mhase, Hon’ble President
1. RP/73/09 is arising out of consumer complaint no.283/2004 Mr.Nazir Mohammad Hussain (org.complainant) v/s. Canara Bank (original opponent) and RP/117/09 is arising out of consumer complaint no.284/2004 Mr.Nazir Mohammad Hussain (org.complainant) v/s. State Bank of India (original opponent). Both these revision petitions have been filed by the revision petitioners as the delay condonation applications filed by the respondent/ org. complainant in consumer complaint nos.283/2004 & 284/2004 were decided by the Mumbai Suburban District Consumer Disputes Redressal Forum by a common order dated 11/02/2009 and, thereby, delay of 7 years and 5 months in filing the above referred complaints was condoned by the said District Consumer Disputes Redressal Forum. Thus, both these revision petitions took exception to the order dated 11/02/2009 condoning the delay in favour of the respondent as stated above.
2. Consumer complaint no.283/2004 was filed by the respondent/complainant as against the Canara Bank (Revision petitioner in RP/73/09), so also consumer complaint no.284/2004 was filed by the respondent/complainant as against State Bank of India (Revision petitioner in RP/117/09). Thus, the revision petitioners are the original opponents from consumer complaint nos.283/2004 & 284/2004 filed before the District Consumer Disputes Redressal Forum, Mumbai Suburban and respondent in both the revision petitions is complainant in the above referred complaints. Therefore, for the sake of convenience, parties are herein after referred to as ‘complainant’ and ‘opponent’.
3. The consumer complaint no.283/2004 was filed by the complainant on 16/07/2004, similarly, consumer complaint no.284/2004 was filed by the complainant on 16/7/2004. It appears that both these consumer complaints were admitted by the District Consumer Disputes Redressal Forum, Mumbai Suburban and the notices were issued after admission to the respective opponents. However, respective opponents on their appearance along with filing of written versions have raised objection in respect of limitation and contended that both the complaints should not have been admitted by the District Consumer Disputes Redressal Forum in view of the provisions of section 24-A of the Consumer Protection Act, 1986. Thereafter, complainant has filed two separate applications in the respective complaints making prayer for condonation of delay. Those delay condonation applications were filed by the complainants on 15/10/2004 and it was claimed that the delay of 7 years and 5 months caused in filing these complaints may be condoned. This itself will show that on 16/07/2004 when the complaints were filed, complainant was aware of the fact that there is a delay of 7 years and 5 months in filing the complaints. However, this was not disclosed to the District Consumer Disputes Redressal Forum and the orders in respect of admission were sought by the complainant.
4. Admittedly, on the date when the complaints were heard for admission, there were no applications for condonation of delay. It is further to be noted at this stage only that the elaborate facts which were reflected from the complaints itself could have permitted the District Consumer Disputes Redressal Forum also to raise ground of limitation and District Consumer Disputes Redressal Forum ought to have asked for the explanation in this respect from the complainant. However, for the reasons known to the District Consumer Disputes Redressal Forum, the District Consumer Disputes Redressal Forum also has not bothered to raise such objection. In fact section 24-A of the Consumer Protection Act, 1986 cast an obligation on the District Consumer Disputes Redressal Forum to consider and find out at the admission stage itself as to whether the complaints filed by the complainant is within limitation and this exercise is expected on the part of District Consumer Disputes Redressal Forum in respect of each and every complaint, which is presented to the District Consumer Disputes Redressal Forum for the purpose of admission and, especially, when the complaint is not accompanied with delay condonation application and the facts and the cause of action reflected from the complaint prima facie shows that the complaint is barred by limitation under section 24-A of Consumer Protection Act, 1986. At this stage, we only note that this obligation was not discharged by the District Consumer Disputes Redressal Forum while admitting the complaints.
5. Under these circumstances, when the objection has been raised, applications as stated above have been filed by the complainant on 15/10/2004. The said applications were heard together by the District Consumer Disputes Redressal Forum and by an order dated 11/02/2009 both these applications for condonation of delay were allowed and the delay of 7 years and 5 months was condoned. Therefore, being aggrieved and dissatisfied with the said order of the District Consumer Disputes Redressal Forum, both these revision petitions have been filed by the respective opponents in the above referred complaints.
6. So far as RP/73/09 is concerned, it appears that the said revision petition has been filed within time. However, so far as RP/117/09 is concerned, it appears that there is delay of 176 days in filing the said revision petition and, therefore, Misc. application no.1356/09 has been filed by the said opponent in RP/117/09. However, since the common order passed in the above referred two complaints condoning the delay is under consideration and since the RP/73/09 has been filed within limitation, and, therefore, we have to consider the validity of the said order in the said RP/73/09, we find it appropriate to condone the delay of 176 days caused in preferring RP/117/09. Ultimately, exercise which we have to carry out in respect of validity of the order while considering RP/73/09 will be the same exercise which will have to be carried out if the RP/117/09 is to be considered along with delay application. Taking into consideration this aspect, we are inclined to condone the delay, which has been caused in preferring RP/117/09 as prayed in MA/1356/09 and, therefore, obviously, we allow MA/1356/09 preferred in RP/117/09 and, thereby, delay of 176 days caused in preferring RP/117/09 is hereby condoned. Under these circumstances, we have heard the revision petition nos.73/09 & 117/09 together.
7. Factual matrix which are not in dispute so far as complainant is concerned are as follows:-
Complainant was/is having NRE Saving Bank A/C no.39561/95 with the opponent Canara Bank. Similarly, complainant was having NRE Saving Bank A/c No.113/10989/94 with the opponent State Bank of India. In the Saving Bank account with the Canara Bank as on 21/06/1995, complainant was having `4.05 lakhs amount as deposit, while as on 07/06/1995 complainant was having a deposit of `6.55 lakhs with the opponent State Bank of India. The complainant was working in Kuwait on the post of “Draftsman Designer” on a monthly salary of `27,000/- per month. While he was in Kuwait, according to complainant, there was a theft of his bag wherein important documents including the bank documents, passbook, Saving Bank A/c passbook and cheques were stolen by an unknown person and, therefore, according to complainant on 16/06/1995, he made a complaint to the Head Police station of Margaf, Fahahill, Ahmedi(E), Kuwait and the complainant has alleged that on 20/06/1995, the said complaint was registered by police station in Kuwait.
8. The complainant has further stated that by letters dated 16/06/1995, 23/06/1995 and 07/10/1995, the complainant informed to both the opponent banks that the theft in respect of bank documents of the complainant had taken place and, therefore, NRE saving account bank, which the complainant was having with the opponent bank be stopped or be freezed.
9. The complainant has also stated that on 17/06/1995 the complainant had equally made a complaint to the Indian Embassy. It is the grievance of the complainant that till 17/10/1996, in spite of three letters being sent to the banks, the banks had not responded and, therefore, on 17/10/1996, the complainant came to Mumbai and enquired with the bank officials and he came to know that the amounts in both the banks were transferred by the banks to Kuwait Bank A/c no.36003174 without RBI approval via New York Citibank. However, documents in this respect were not given to the complainant. On being asked, the documents were not supplied. It is his case that the complainant lodged N.C. complaint to Khar (West) police station, Mumbai against Canara Bank and Bandra (West) police station, Mumbai against State Bank of India. Thereafter, on 06/11/1996 he demanded the documents and after correspondence and intervention of the police on or about 23/11/1996 the forged documents i.e. General Power of Attorney, Letter of Authority with other connected forged documents were issued and given to the complainant by the bank. Then he has stated several dates in respect of summons issued by the police officers for recording a statement, etc. However, he states that by 24/06/1999 while the police investigation was going on, he filed a complaint before the 9th Metropolitan Magistrate Court, Bandra bearing no.637/Misc./99 against the opponents and the said complaint is pending.
10. While the complainant was knocking the doors as stated above, it equally appears that on 12/11/1998, by letter of an advocate the complainant approached to the Secretary, Ombudsman (Banking), Worli and the Ombudsman also intervened in the matter. However, it is an admitted fact on record that the enquiry by Ombudsman was also closed. Under these circumstances the complaints were filed.
11. It is an admitted position on the part of complainant that after the objection is raised by the opponents that there is delay of 7 years and 5 months in filing the complaints and, therefore, complainant has submitted an application.
The grounds which have been made for condonation of delay are as follows :-
12. We find from the para 3 of the delay condonation application the ground to the following effect:-
“That the complainant was expecting criminal action against the accused and was expecting justice and further was in a hope that his amount shall be recovered after detailed investigation by the police. The complainant is not having any source of income could not engage advocates easily and approached the Courts easily as nobody was ready to help the complainant without payment to the advocates.
The complainant could not collect the information necessary for the complaint.
The complainant is not having any job since 1996 i.e. from the date the complainant came to India. There was a tragedy in his personal life namely his wife had left along with the children as he had no money. Complainant was not having funds and, therefore, he was managing his life with the help of friends.
Ultimately, he got an advocate like Mr.V.Narayanan who came to litigate for him without any fees. However, he also could not attend the matter due to old age and, therefore, through some social organization he could get an advocate to conduct the present case. Delay is not intentional and, therefore, it be condoned.”
13. All these contentions raised for condonation of delay cannot fall within the category of ‘sufficient cause’ especially in the backdrop of the circumstances in which the complainant is following his case since 1995. It is to be noted that on 17/10/1996 for the first time complainant came to know that his amounts in the Saving Bank account of the opponent banks had been transferred to Kuwait and the said information was given to the complainant by the opponents immediately when the complainant came to Mumbai from Kuwait. Not only that, but it is an admitted fact that on 23/11/1996 the alleged copies of forged documents were handed over to the complainant and, thereafter, or even prior to that complainant had approached to the police authorities and lodged the complaints. Not only that but he has also informed this fact to the Indian Embassy, Reserve Bank of India. The First Information report was also recorded by the Mumbai police on or about 22/02/1997 and several times complainant was called by the police authorities for recording the statement. What we find that complainant thereafter, having lost faith in the police, probably has filed a complaint before the 9th Metropolitan Magistrate on 24/06/1999. He even had approached to the Ombudsman of the bank. Therefore, except knocking the doors of the consumer forum, he had tried to approach several other authorities. He could engage an advocate to have correspondence with the Ombudsman. He could engage an advocate for filing a complaint before the 9th Metropolitan Magistrate on 24/06/1999. However, he contends that he had no money to engage an advocate so as to file a complaint before the Consumer Fora, which in the backdrop of the circumstances is absolutely false and incorrect statement. Nothing has been brought on record to show that his relations with his wife and children were estranged and, however, we find even assuming for a moment that his relations with wife and children were estranged, however he could easily follow the matters with the help of advocates with the police authorities and with Ombudsman. Therefore, his estranged relations had not affected his continuous prosecution of his grievances with the police authorities, Ombudsman and the Metropolitan Magistrate. In fact, when he got the information about the fraud being committed against him and the documents in respect of fraud were handed over by the bank on 23/11/1996, the complainant could have approached immediately to the Consumer Fora. However, except approaching the Consumer Fora he has approached every other authority. That shows that the contentions which are raised in delay condonation application that he was short of funds and it is only when Mr.Narayanan provided him a free service, he could file a complaint is a cock and bull story developed for condonation of delay. Therefore, such a ground cannot be a ground for condonation of delay. On the contrary, litigation cost in the Consumer Fora is expected to be very low and, therefore, it is very easy to approach Consumer Fora than to approach any other Fora. Therefore, ground as made out for condonation of delay is not a ‘sufficient cause’.
14. What is important to be noted is that this is a case of fraud as against the complainant. Complainant was aware of the fact that his bag has been lost, he has only sent three letters in the year 1995 and he came to Mumbai on or about 17/11/1996. On a very day when he approached to the banks, Banks have disclosed that the amounts in the saving bank have been transferred. Not only that by 23/11/1996 the documents on the basis of which the amounts were transferred to Kuwait through USA namely copies of the alleged forged documents were given to the complainant. Therefore, by 23/11/1996 the complainant was possessed of every information in respect of fraud being committed as against the complainant. He became aware, according to him, that it was a case of deficiency in service on the part of the banks. Therefore, time to file complaint has commenced from the said day.
15. Section 24 contemplates two years period, therefore, the complaint ought to have been filed within a period of two years at least from 23/11/1996. However, complainant has not approached to the District Consumer Disputes Redressal Forum within a said period. All his grievances with the police, Ombudsman and the criminal case will not be a ground for condonation of delay. On the contrary, all these factors are against the complainant, namely complainant was able to follow the remedies and he could have equally followed remedy of Consumer Fora, but for the best reasons known to him he has not followed remedy of Consumer Fora. Therefore, contention of the Ld.counsel that the continuously complainant was following and prosecuting the cause and, therefore, period of limitation was not running against him is not sustainable in law. It is not a case of continuous cause of action. That means cause of action has taken place a day one complainant came to know that his amount from NRE saving bank accounts have been transferred to the Kuwait in the name of unknown person being account no. 36003174 through the USA New York Citi Bank. Therefore, from that day onwards within a period of two years complaint ought to have been filed. Therefore, what we find that the reasoning adopted by the District Consumer Forum namely that the complainant was diligent and was prosecuting the cause and, therefore, limitation will not run against him is not sustainable in law.
16. Ld.counsel for the complainant has tried to rely upon judgement of the apex court in the matter of Collector Land Acquisition Anantnag and another v/s. Mst.Katji & Ors. reported in 1987 (II) CLR Page 92(SC). What we find that this case is not of any help to the complainant. We are not expecting a day to day explanation from the complainant. What is important to be taken into consideration is that that after having received information in respect of the amounts being transferred whether complainant has approached to the District Consumer Disputes Redressal Forum within limitation.
17. We find that the cause of action has taken place in the year 1996. So by 1998, the complaint should have been filed. As against that complaint has been filed in 2004 and even the complainant himself admits that it is 7 years and 5 months barred by limitation. Therefore, there should have been a sufficient strong ground to condone the delay. What we find that according to the normal law, in case of fraud, the suit is required to be filed within a period of three years from the date of knowledge in respect of fraud. However, even if we apply general provisions of law, claim involved in the present complaint is a stale claim. On the contrary, Consumer Protection Act, 1986 which provides special remedy for the deficiency in service has provided limitation for two years, which is less than general law and, therefore, person who is desirous of taking benefit of this special remedy is expected to be more diligent and, therefore, what we find that the complaint in the present case was hopelessly barred not only under Consumer Protection Act, 1986 but also under general Civil Law and, therefore, for a delay condonation there should have been a ‘sufficient cause’. Ground as stated for condonation of delay cannot be a ‘sufficient cause’. On the contrary, whole story as reflected from the complaint shows that the complainant was very much capable of following remedies under the law but he has not followed remedy within prescribed time as provided under the Consumer Protection Act, 1986. In the result, what we find that common order of condonation of delay passed by the District Consumer Disputes Redressal Forum is not sustainable in law.
18. One more aspect requires to be considered namely Ld.counsel for the complainant tried to submit that look to the cause namely amount has been siphoned from his bank accounts and, therefore, there is case on merit and, therefore, there is case for the purpose of substantial justice and delay requires to be condoned. What we find that assuming the said contention to be considered, the merit of the case requires to be considered when the period of limitation is within a discretionary area of an authority and authority finds that the other side can be adequately compensated in terms of money, that is wherever it is possible to equate the equities, we take a lenient view and look to the merit of the case and try to condone the delay by imposing appropriate cost. But in the present matter we find that delay is admittedly of 7 years and 5 months and, thereby, valuable right has accrued in favour of other side and the equities of both the parties cannot be equated by paying compensation and, therefore, such a liberal approach in condoning the delay cannot be taken in the present matter. In the result, what we find that the order passed by the District Consumer Disputes Redressal Forum is bad and illegal and is hereby quashed and set aside. Both the Revision petitions are allowed. Hence the following order:-
ORDER
Delay caused in filing RP/117/09 is hereby condoned and M.A.No.09/1356 is allowed.
RP/09/73 & RP/09/117 are hereby allowed.
Order dated 11/02/2009 passed by District Consumer Disputes Redressal Forum, Mumbai Suburban in consumer complaint nos.283/2004 & 284/2004 is hereby quashed and set aside.
Consumer complaint nos. 283/2004 & 284/2004 are hereby rejected being barred by limitation.
Copies of the order be furnished to the parties.
Pronounced
Dated 19th January 2011
