DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

Complaint Case No. 207/14

In the matter of:

Mr. Arun Kumar Arya, President

Ms. Sonica Mehrotra, Member

Order passed by Ms. Sonica Mehrotra, Member

ORDER

1. Brief facts as recapitulated in the present complaint are that the complainant was holding savings bank account no. 10659137181 with OP since 30.12.2000 and therefore was its customer but had not requisitioned for an ATM card against the said account. However, on updation of his passbook done in 2002, the complainant discovered that there were numerous debits through ATM withdrawal from his account with OP between 02.09.2001 to 27.04.2002 totaling Rs. 66,400/-. The complainant brought the said issue to the concerned branch officials of the OP immediately but OP neither resolved the issue nor updated the passbook of the complainant or even provide any details of transactions for the ensuing period from 27.04.2002 to 31.01.2006. The ATM fee debited from the complainant’s account on 25.03.2007 was reverse by OP on 31.03.2007. due to inaction on the part of OP, the complainant had to escalate the matter vide written complaint  dated 17.07.2007 to OP asking for early resolution into the unauthorized debits from his account to which OP vide written response dated 09.07.2007 informed complainant of early revert on the same. But when no action was taken by OP for another year, the complainant through his lawyer issued a legal notice dated 31.12.2008 to OP demanding damages and remittance of wrongly debited amount into his account. But nothing happened for next two years the complainant registered complaint against OP with Indian Bank Association and Banking Ombudsman in 2010 but despite assurance given by the authorities and repeated follow-ups made by the complainant, no action was taken. The complainant made several representations to OP between April 2011 to September 2013 asking for details of entries from 27.04.2002 to 31.01.2006 of fraudulent withdrawals made from his account as there were three more withdrawals made through ATM after 27.04.2002 in June 2002 which the complainant had discovered on getting his passbook updated. The complainant vide letter dated 28.10.2013 to DGM – GMO of OP’s Local Head Office in Delhi expressed his grievance at the inaction on the part of officials of OP and failure to redress his grievance of looking into the matter of unlawful debits from his account through ATM when he had not even availed of the said facility of ATM card with OP in reply to which OP vide communication dated 19.11.2013 acknowledged receipt of the communication and asked the complainant to contact its toll free number and also apprised the complainant that his complaint has been forwarded to the concerned Model Town Delhi branch of OP. But lastly when the complainant received letter dated 17.02.2014 from OP in which OP expressed its inability to procure old records of the ATM for the period 2001 – 02, the complainant finding no other recourse was compelled to file the present complaint against OP in May 2014 praying for issuance of directions against OP to given credit reversal of the wrongly deducted amount of Rs. 66,400/- with interest @ 9% p.a. for the entire period in complainant’ s account held with it alongwith Rs. 11,000/- as compensation for harassment and Rs. 11,000/- towards litigation expenses.
2. Complainant has attached copy of list of 24 ATM transactions for the period 2001-02 between 02.09.2001 to 27.04.2002 totaling Rs. 66,400/-, copy of letter dated 17.07.2007 from complainant to OP, copy of response dated 09.10.2007 by OP to the complainant, copy of legal notice dated 31.12.2008 issued by complainant’s counsel to OP alongwith dispatch proof and receipt acknowledgement, copy of complaints lodged by the complainant with Banking Association and Banking Ombudsman in 2010, copy of correspondence sent by complainant to OP between April 2011 and September 2013 for resolution of his grievance and details of entries from 27.04.2002 to 31.01.2006, copy of passbook entries of complainant’s old account no. 01190022085 held with OP for the period 27.04.2002 to 31.12.2005 highlighting 3 debit transactions made through ATM in June 2002, copy of complaint letter dated 28.10.2013 by complainant to OP through its DGM- GMO, copy of response dated 19.11.2013 by OP to the complainant and copy of letter dated 17.02.2014 issued by OP’s Model Town Branch to the complainant expressing its inability to trace old ATM records pertaining to period 2001-02.
3. Notice was issued to the OP on 30.05.2014. OP entered appearance on 03.07.2014 through its relationship officer and was handed over complete set of complaint to file its written version on 30.07.2014. However none appeared on its behalf on the said date and OP was therefore proceeded against ex-parte vide order dated 30.07.2014.
4. Complainant filed ex-parte evidence by way of affidavit exhibiting the documents relied upon/filed as Ex- CW1/1 to CW1/7.
5. OP re-entered appearance on 12.11.2014 and apprised this Forum of having filed a Revision Petition before Hon’ble SCDRC Delhi against the ex-parte order passed against it by this Forum and on hearing held on 17.12.2014, OP through counsel placed on record copy of order dated 26.11.2014 passed by Hon’ble SCDRC Delhi in RP No. 1046/2014 vide which order dated 30.07.2014 of this Forum was set aside subject to cost of Rs. 2,000/- to be paid by OP to complainant and its defence was reinstated with directions to file the written statement on 17.12.2014 itself.
6. OP filed written statement vide which it took the preliminary objection of the complaint being time barred as it has been filed after 14 years delay from the cause of action and prayed for rejection of the complaint on this ground alone. On merits, OP resisted the complaint by taking the defence that per contra all withdrawals through ATM from complainant’s account between 02.09.2001 to 27.04.2002 totaling Rs. 66,400/- were made by the complainant himself as ATM cannot be operated without knowledge of confidential code / PIN and intimation of such withdrawals was given by the complainant to OP on 17.07.2007 for the first time after a long delay of 6 years. The OP, while admitting the complainant having approached it with its complaint regarding disputed withdrawals, took the defence that on enquiry / checking the records pertaining to the transactions, it was found that the said transactions in question were done by the complainant himself through debit card No. 622XXXXXXXXXXXXXXXX312 issued to him by OP against old account no. 01190022085. OP denied having given any assurance to the complainant for resolution of his problem on checking registers or non updation of his passbook as alleged by the complainant and submitted in this regard that any customer is free to get his passbook updated or make oral enquires. Lastly OP urged that as per general practice and rules, records pertaining to ATM transactions are available / retained only for a period of 2(Two) years. For defence so taken, OP prayed for dismissal of the complaint. OP has attached copy of the ATM card number details/ status issued in the name of complainant on 03.12.2002 against old account no. 1190022085 and copy of record retention rules of Banks highlighting Card Application Received Register (and soft copy) to be retained for two years as per ATM Banking category VIII (C).
7. Rejoinder in rebuttal to defence taken by OP was filed by the complainant vide which complainant submitted that limitation in banking case arise when the money is being demanded by the person concerned and bank refuses to do so and in this context he submitted that complainant wrote various letters to OP between 2007-2011 and lastly wrote to its DGM-GMO on 28.10.2013 and only after the letter dated 17.02.2014 by OP to the complainant did the complainant filed the present complaint in May 2014 and therefore the same was well within limitation. In so far as time period for retention of records is concerned, complainant submitted that OP cannot destroy and debit entries reflected in its ledger account and alleged that the OP intentionally took the plea of withdrawal through ATM when none was issued to the complainant at any point of time and therefore withdrawal to the same was out of question as the complainant never made any application for it and kept saying in all his communication to OP that such ATM withdrawals were never done by him. Complainant further controverted the defence taken by OP stating that in 2002 -03 there was no practice of automatic provision of debit card which was issued by the Banks only on specific request / application which was never made by the complainant and the onus was on the OP to rectify and replenish the account of the complainant then and there and the lapse on its part cannot be attributed to the complainant. Therefore complainant prayed for rejection of the written statement of OP and prayed for relief claimed.
8. Evidence by way of affidavit was filed by OP sworn by its Chief Manager exhibiting the documents relied upon as EX-DW1/A and DW1/B.
9. Written arguments were filed by both parties in reassertion /reiteration of their respective grievance / defence.

The arguments were heard by the erstwhile bench on 22.02.2017 and order was reserved but not passed. On the present bench taking over, the matter was relisted on 24.04.2018 In hearing held on 16.01.2019, counsel for the informed of demise of the complainant which happened on 11.12.2018 and prayed for time to file application for impleadment of his legal heirs and undertook to serve the OP on its Model Town Delhi address through Dasti Notice taken by complainant’s son and notice was delivered at the said address of OP which service was effected on 25.03.2019. However, none appeared on its behalf for six consecutive hearings held between April 2019 to December 2019 and on the last date of hearing i.e. 11.12.2019, it was proceeded against ex-parte. However, all its pleadings are complete and on record and shall be duly considered as per the settled law passed by Hon'ble National Commission in Bank of India Vs N V Deoras 1997 (3) CPR 63 (NC) that even if OP is absent, commission / Forum must consider averments in version before passing orders. Therefore the pleadings of OP shall be taken into consideration while passing orders. The complainant filed the application for impleadment of LRs (complainant’s wife and children) on the said date while attaching copy of the application made before GNCTD for issuance of surviving member certificate and acknowledgement issued by Department of Revenue GNCTD alongwith the Death Certificate of the complainant dated 26.12.2018 issued by South Delhi Municipal Corporation (SDMC) Delhi.

10.  The OP in its written statement has raised preliminary objection of non-maintainability of the complaint on grounds of limitation. We have heard arguments addressed by the complainant through video conferencing on the aspect of limitation and have carefully perused the documentary evidence placed on record and given our anxious consideration thereto.

The Hon'ble Supreme Court in Hewlett Packard India Ltd. Vs Shri Ramachander Gehlot in CA No. 7107/2003 decided on 16.02.2004 held that issue of maintainability has to be decided before admitting or hearing the matter on merit and judgment of Hon’ble NCDRC in Koshy Varghese Vs HDFC Bank Ltd. III (2017) CPJ 52 (NC) held that question in which law point is involved can be decided at any stage of the proceedings. Therefore, without going into the merits of the case both parties were directed to address arguments on the aspect of limitation since admittedly the subject matter of dispute giving rise to the present complaint pertains to the alleged unlawful / unauthorized debit transaction made through ATM from complainant’s account between 2001-02 through debit card which facility as per the complainant was not used or availed of by him qua the account held with OP. The law of limitation in Consumer Protection Act is covered under Section 24A of the said Act.

Section 24A of CPA deals with the limitation period for complaints to be filed within two years from the date on which cause of action has arisen and contains a negative legislative mandate against admission of a complaint which has been filed after two years from the date of accrual of cause of action. In other words the Consumer Forums do not have the jurisdiction to entertain a complaint if the same is not filed within two years from the date on which the cause of action has arisen. The law on the said issue has been clearly settled by Hon’ble Supreme Court in so far as the nature and scope of Section 24A is concerned in the landmark judgments of Kandimalla Raghavaiah & Co. Vs National Insurance Co. Ltd (2009) 7 SCC 768, State Bank of India Vs B S Agricultural Industries (2009) 5 SCC 121 and V. N. Shrikhande (Dr) Vs Anita Sena Fernandes (2011) 1 SCC 53. The Hon’ble National Commission in the judgment of Jansatta Sahkari Awas Samati Ltd Vs Kone Elevators India Pvt Ltd I (2016) CPJ 190 NC held that mere sending a legal notice does not constitute a cause of action nor does it extend a period of limitation prescribed in the Act in view of settled proposition of law under Section 24A of CPA as mandatory in nature as held by Hon’ble Supreme Court in B.S. Agriculture Case (Supra) in which the Hon’ble Apex Court took the view that Section 24A is preemptory in nature and requires consumer Forums to see before it adjudicates the complaint that it has been filed within two years from the date of accrual of cause of action. The Hon’ble National Commission in the Judgment of Punjab Small Industries and Export Corporation Ltd and Anr. Vs Satinder Pal Singh II (2018) CPJ 245 (NC) has held that the complainant remaining inactive and suddenly sending legal notice to OP cannot entitle him for waiver of limitation period as any amount of correspondence cannot extend limitation period. The Hon'ble Supreme Court in BS Agricultural Industries (Supra) case held the view that it is the duty of the Consumer Forum to take notice of section 24A and give effect to it. If the complaint is barred by time and yet, the Consumer Forum decides the complaint on merits, the Forum would be committing an illegality and therefore, the aggrieved party would be entitled to have such order set aside. The Hon'ble Supreme Court in State of Tripura & Ors Vs Arabinda Chakraborty & Ors I (2014) SLT 370 decided on 21.04.2014 held that simply by making a representation, period of limitation would not get extended. A person may go on making representation for years and such an event the period of limitation would not commence from the date on which the last representation decided. The said ratio was followed by Hon'ble National Commission in Mahesh Nensi Shah Vs. Oriental Insurance Company Ltd. III (2006) CPJ 414 (NC) & Samruddhi Co-operative Housing Society Ltd Vs. Mumbai Mahalaxmi Construction Pvt Ltd. I (2019) CPJ 347 (NC) in which Hon'ble National Commission held that period of limitation cannot get extended on the basis of exchange of communication between parties once cause of action has arisen.

In view of the settled proposition of law as exhaustively discussed in the foregoing para on the aspect of limitation, we are of the considered opinion and unambiguous conclusion that the present complaint is hopelessly barred by limitation u/s 24A. The Hon'ble Supreme Court in N. Balakrishnan Vs M. Krishnamurthy VII (1998) SLT 334 laid down that law of limitation is enshrined in the maxim interest republic up sit finis Mum (it is for the general welfare that a period be put to litigation) and that it fixes a life span for such legal remedy for redressal of legal injury so that precious time which is wasted would never revisit. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time to see that party do not resort to dilatory tactics but seek their remedy promptly.

The Hon'ble Supreme Court in Basavraj & Anr. Vs The Spl. Land Acquisition Officer 2013 AIR SCW 6510 held that sufficient cause means adequate and enough reasons which prevented the applicant to approach the within limitation and party should not have acted in negligent manner or for want of bonafides. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim “dura lex sed lex” which means “the law is hard but it is the law” stands attracted in such a situation as held by Hon'ble Supreme Court in Basavraj (Supra) case. In Ramlal & Ors Vs. Rewa Coalfield Ltd, AIR 1962 SC 361, the Hon'ble Supreme Court held that the court cannot be said to have acted non judicially when it dismisses an application for condonation of delay where no sufficient reasons are shown as it is a discretionary jurisdiction vested in the court. The Hon'ble Supreme Court in the case of R.B. Ramlingam vs R.B. Bhavaneshwari I (2009) SLT 701 laid down that the true guide for examining whether delay in filing has been properly explained is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal / petition.

In the present case however, the complainant has failed to even file any application for condonation of delay and is rather trying to cover up his own acts of omission and commission under the garb of protracted and continuous correspondence between himself and OP from 2007 to 2014 for disputed ATM withdrawals pertaining to period 2001-02 to cover his complaint under limitation. The Hon'ble Supreme Court in Anshul Aggarwal Vs. New Okhla Industrial Development Authority IV (2011) CPJ 63 (SC) observed that while dealing with such cases of delay, the court has to keep in mind the special period of limitation as prescribed under Section 24A of Consumer Protection Act 1986 and the object of expeditious adjudication and speedy redressal of consumer dispute will get defeated if this court was to entertain highly belated such like complaints in routine manner without any specific reasons supported by material as is squarely applicable in the present case.

The Hon'ble Supreme Court in Anshul Aggarwal (Supra), Cicily Kallarackal Vs Vehicle Factory IV (2012) CPJ I (SC) , R.B. Ramalingam Vs R.B. Bhavaneshwary I (2009) SLT 701 and Ram Lal Vs Rewa Coalfields Ltd AIR 1962SC 361 held that while deciding an application for condonation of delay, the court has to keep in mind the special period of limitation prescribed under Consumer Protection Act 1986 and whether the petitioner has acted with reasonable diligence and has explained the delay properly with emphasis on necessity to show sufficient cause since the proof of sufficient cause is a condition precedent for exercise of discretionary jurisdiction for condoning delay. The Hon'ble Supreme Court in Bikram Dass Vs Financial Commissioner and Ors AIR 1977 SC 1221 held that Limitation Act is a hard task master and judicial interpretation has encased it within a narrow compass. Therefore a litigant who is not vigilant about his right must explain every days delay. Sufficient cause has been explained by Hon'ble Supreme Court in Basavraj and Anr Vs The Spl. Land Acquisition Officer 2013 AIR SCW 6510 as that delay was due to bonafide on the part of party and that party has not acted in a negligent manner or remain inactive; therefore meaning adequate and enough reasons which prevented the applicant to approach the court within limitation. The above ratios of Hon'ble Apex court were followed by Hon'ble National Commission in State of Haryana Vs Santra, Anita I (2019) CPJ 211 (NC), Eclectic Developers Pvt Vs. Smita Datta Makhija II (2019) CPJ 545 (NC), Punjab State Power Corp. Ltd Vs. Lal Sarn Dass Sarve Hitkari School I (2019) CPJ 500 (NC) and Uttar Pradesh Madhyamik Shiksha Parishad Vs Gurmeet Kaur II (2019) CPJ 19 (NC). In Rishi Prabhat Vs. DDA AIR 1995 DEL 9, Hon'ble Delhi SCDRC held that after expiry of limitation period each day’s delay has to be explained. The Hon'ble National Commission in Jashomatinandan Das Vs State Bank of India (2006) 3 CPR 406 (NC) held in a case where the complaint was filed after three years of knowledge of cause of action that such a complaint was barred by limitation and upheld the decision of Hon'ble State Commission. The Hon'ble National Commission in Mr. Alok Kumar Mukherjee Vs Dr. Tapas Roy Choudhury (2006) 1 CPR 182 (NC) held that a delay of seven to eight years in filing complaint from date of knowledge cannot be condoned and is clearly barred by limitation of two years under Section 24A of the Act.

In the present case the complainant had admittedly acquired knowledge of the ATM withdrawals from his account made in 2001-02 in 2002 itself on passbook updation but has not file any communication on record between the parties till next five years and it was only in July 2007 when the complainant first wrote to OP to which OP responded in October 2007. Thereafter complainant took no action till next one year and sent a legal notice on December 2008. Thereafter yet again there is no correspondence between the parties for the entire 2009 and in 2010 complainant approached the banking ombudsmen. Thereafter complainant continued corresponding with OP from 2011 to 2013 and lastly early in 2014. However the law laid down by Hon'ble National Commission in Samruddhi (supra) case is already clarified that the period of limitation cannot be extended on the basis of communication exchanged between parties once cause of action has arisen.

After due appreciation of chronology of event spread over twelve years from the knowledge gained by the complainant of ATM withdrawals from the account in 2002 till last correspondence in 2014, the cause of action has arisen in 2002 itself after which the complainant was completely inactive till next five years when he first corresponded with OP in July 2007. The complaint was time barred in 2007 itself and the complainant was only trying to extend the limitation by entering into numerous correspondence with OP till 2014 which cannot come to his rescue as he is hit by the maxim interest republic up sit finis Mum (it is for the general welfare that a period be put to litigation). The Hon'ble National Commission in Ashok Kumar Sainia Vs DDA (2013) 2 AWC 457 (NC) held that exchange of letters between parties does not extent limitation under the ACT once the cause of action had arisen and held the complaint to be barred by time. The Hon'ble National Commission in M/s State India Express (Registered) Vs M/s Ranutrol Ltd and New India Assurance Co. Ltd in First Appeal Nos. 780/2006 and 116/2007 decided on 18.11.2013 held that wrong assumption of the date on which cause of action arose is no excuse to condone delay.

11.  Since the present complaint has been filed belatedly after almost ten years, the same is time barred from the date of cause of action, being perverse to the special limitation period prescribed under CPA to resolve the consumer disputes in a speedy manner, we therefore dismiss the present complaint as being time barred since entertaining such highly belated complaint on merits would defeat the object of letter and spirit of Section 24A of CPA   which bars adjudication of stale claims.
12.   Let a copy of this order be sent to both parties free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
13.   File be consigned to record room.
14.   Announced on  24.08.2020