Punjab

StateCommission

FA/404/2014

Satish Kumar - Complainant(s)

Versus

Punjab & Sind Bank - Opp.Party(s)

Vivek Suri & Mayur Kanwar

12 Feb 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,  PUNJAB        DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

 

          First Appeal No.404 of 2014                                                      

                 Date of institution  :    09.04.2014  

    Date of decision     :    12.02.2015

 

Satish Kumar S/o Sh. Gopi Chand, C/o Jai Mata Timber Store, near Bharat Combine, Sanauri Adda, Patiala.

…….Appellant/Complainant

Versus

1.      Punjab and Sind Bank, Rajwaha Road, Patiala, through its      Zonal Manager.

 

2.      Punjab and Sind Bank, Branch at Bhunerheri, District Patiala,           through its Branch Manager.

                                                          …Respondents/Opposite Parties 

First Appeal against the order dated 25.03.2014 of the District Consumer Disputes Redressal Forum, Patiala.

Quorum:- 

 

          Hon’ble Mr. Justice Gurdev Singh, President.

                        Shri Baldev Singh Sekhon, Member.

                        Mrs. Surinder Pal Kaur, Member.

 

Present:-

 

          For the appellant            : Shri Vivek Suri, Advocate.

          For the respondents                : Shri Harish Goyal, Advocate.

 

 

JUSTICE GURDEV SINGH,  PRESIDENT :

 

                    The appellant/complainant has preferred this appeal against the order dated 25.03.2014 passed by District Consumer Disputes Redressal Forum, Patiala (in short, “District Forum”), vide which the complaint filed by him, under Section 12 of the Consumer Protection Act, 1986, for issuance of directions to the respondents/opposite parties to pay the amount of cheque (Rs.1,25,000/-), along with interest @ 18% per annum from May, 2008 till the date of payment and Rs.2,00,000/-, as damages caused to him on account of negligent performance of the duties and deficiency in service, was dismissed; being barred by limitation.

1. The complainant alleged, in his complaint, that he had opened account No.9606 with opposite party No.2. In the month of May, 2008, he presented cheque No.912183 of Rs.1,25,000/- dated 27.01.2008 issued in his favour by Anju Sharma from her account No.0177961, maintained in Punjab National Bank, Karnal Road, Kaithal (Haryana), before that opposite party for encashment. The cheque was sent by this opposite party to said Punjab National Bank, but neither the same was accounted for in his account, nor was returned to him till the filing of the complaint; though he visited the opposite parties various times with the request to disclose the whereabouts of that cheque and had requested them to enter the amount of the cheque in his account. He was not heard by them. Even the writing of the letters to opposite party No.1 was of no use and no reply was given by that opposite party. Thereafter, he sought information under the RTI Act by writing letter dated 14.10.2013. The information was received by him from opposite party No.1 on 08.11.2013, vide which he was informed that the amount of the cheque has not been credited in his account. Thereafter, he served legal notice through registered post upon the opposite parties on 23.11.2013, but they failed to respond to the same. These wrongful acts on their part amount to deficiency in service; as a result of which, he suffered huge loss. He is a timber merchant and had the amount of the cheque been credited in his account, that must have circulated a number of times in the course of business. He was deprived of that amount since the presentment of the cheque.

2. The opposite parties filed joint written reply before the District Forum. In their written reply, they admitted that the complainant had presented the cheque before opposite party No.2 for encashment and that the amount of that cheque was not credited to his account. They also admitted the receipt of the legal notice dated 23.11.2013 from the side of the complainant. While disputing the other allegations made in the complaint, they pleaded that the cheque was sent to Punjab National Bank and the same might have been received back unpaid. If the same would not have been received, then it was the duty of the complainant to agitate the matter with their officials. The validity of the cheque was six months and the matter is now being agitated by the complainant after five years. The complaint is barred by time; having not been filed during the prescribed period. The complainant had an alternative remedy to get issued duplicate cheque, when he faced the problem of the non-encashment thereof. Even the legal notice was issued after five years and the same was done with a malafide intention, in order to create the jurisdiction. There was neither any wrongful act on their part, nor they were deficient in service. The complainant himself was negligent and careless by not dealing with the matter in time. The complaint is also bad for non-joinder of necessary parties. They prayed for the dismissal thereof with costs; being false, frivolous and baseless.

3. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, dismissed the complaint, vide aforesaid order.

4. We have heard the learned counsel for both the sides and have carefully gone through the records of the case.

5. It was argued by the learned counsel for the complainant that without going into detail, the District Forum wrongly concluded that the complaint was not filed within limitation. It is very much clear from the allegations made in the complaint and the evidence produced on the record, that the complainant had a continuous cause of action. Once the cheque was presented to the opposite parties by the complainant, it was for them to collect the amount thereof through clearance and to credit the same in the account of the complainant and in case of dishonour thereof, to convey the necessary information and the cause of dishonour to the complainant.Till the amount of the cheque is credited in his account or he is informed about the dishnouring of the cheque, the cause of action for filing the complaint is to continue. Therefore, it cannot be said that the complaint was barred by time. Therefore, the finding recorded by the District Forum cannot be sustained and is liable to be set aside.

6. On the other hand, it was submitted by the learned counsel for the opposite parties that it was correctly concluded by the District Forum that the complaint was barred by time. The complainant himself deposed in his affidavit that the cause of action to file the complaint accrued to him on 27.05.2008 and on the other dates, mentioned therein. The complaint was required to be filed within two years of the date of the accrual of the cause of action for the first time. The complaint was filed in the year 2013 and having been filed after two years of the accrual of that cause of action, is clearly barred by time. It was the duty of the complainant to enquire about the fate of his cheque from the opposite parties, but he slept over the matter and he cannot revive the period of limitation by the issuance of a legal notice, which itself was issued after the expiry of the period of limitation.

7. It is a fact that the complainant, in his affidavit Ex.C-A, deposed in Para No.11 that the cause of action arose to him to file the complaint on 27.05.2008, when he presented the cheque for encashment and on 27.08.2008, 08.09.2008, 13.03.2009, 30.09.2009, 19.08.2011, 06.07.2012 and finally on 14.11.2013, when opposite party No.1 declared that the amount of the cheque had not been credited in his account. The making of such a deposition on the question of law cannot deprive the complainant of his lawful rights. It is to be determined from the allegations made in the complaint and the evidence produced on the record, as to whether the complaint was filed by him within limitation or not? It cannot be held that cause of action had arisen to him, just on the date of presentment of the cheque.

8. As per the banking system, the opposite parties were required to send the cheque to Punjab National Bank, upon which the same was drawn and in case of clearance, were to enter the amount of the cheque in the account of the complainant and in case of dishonour thereof, to give the necessary intimation to the complainant, along with the memo of dishonour. The opposite parties have admitted the presentment of the cheque by the complainant and the sending thereof to Punjab National Bank. They took up a strange plea that they did not know what happened with the cheque. Till the credit of the amount of the cheque or sending of information of the dishonour thereof to the complainant, cause of action continued to accrue to the complainant to file the complaint. It was a continuous cause of action and the District Forum committed an illegality by dismissing the complaint, on the ground that the same was barred by limitation. Such a finding recorded by the District Forum cannot be sustained.

9. Accordingly, the appeal is allowed, the order passed by the District Forum is set aside and the complaint is remanded back to the District Forum, with the direction to decide the same on merits.

10. Parties are directed to appear before it on 11.03.2015. Records of the District Forum be returned immediately.

11. The arguments in this case were heard on 05.02.2015 and the order was reserved.Now, the order be communicated to the parties.

12.           The appeal could not be decided within the statutory period due to heavy pendency of court cases.

     

     

     

                                                            (JUSTICE GURDEV SINGH)

                                                                           PRESIDENT  

                                                             

     

     

                                                            (BALDEV SINGH SEKHON)

                                                                             MEMBER

                                                             

     

     

                                                          (MRS. SURINDER PAL KAUR)

    February 12, 2015                                       MEMBER

    (Gurmeet S)