Branch Manager, Axis Bank Ltd., Mathura Road, Palwal.

^{---Appellant/ Opposite Party No.1} 

^Versus

1.        Sh.Amar Singh son of Sh.Mohal Lal, r/o H.No.2008, Sector 28-C, Chandigarh, Assistant at Haryana Civil Secretariat, Chandigarh.

 ^{---Respondent/Complainant}

2       

^{---Respondent /Opposite Party No.2}

BEFORE:

Argued by:Sh.Gaurav Goel, Advocate for the applicant/appellant

Sh.Gaurav Bhardwaj, Advocate for respondent No.1/complainant

Service of respondent No.2(Opposite Party No.2) already dispensed with vide order dated 19.03.2014). 

PER PADMA PANDEY, MEMBER

“13]      In view of the foregoings, we are of the opinion that the complaint must succeed.  The same is accordingly allowed against OP No.1.  The OP No.1 is directed to make the reverse entry of Rs.10,000/- in the account of the complainant. The OP No.1 is also directed to pay a compensation of Rs.7,000/- to the complainant for causing him mental tension, physical harassment as well as financial loss, apart from paying litigation cost of  Rs.5000/-.

       This order be complied by the OP No.1 within a period of 30 days from the date of receipt of its copy, failing which it shall be liable to pay the amount of Rs.10,000/- plus compensation amount of Rs.7000/- along with interest @12% p.a. from the date of filing this complaint i.e. 27.06.2013 till its actual payment, beside paying litigation cost as aforesaid. 

14]      However, the complaint qua OP No.2 stands dismissed”.

2.                    In brief, the facts of the case are that the complainant on 28.4.2013 visited Axis Bank Ltd., Mathura Road, Palwal ATM at around 4.40 PM for the withdrawal of Rs.14,000/-. The complainant operated the machine and gave a command for an amount of Rs.14,000/- but the ATM machine did not dispense any amount.  The complainant after waiting for 8/10 minutes left the machine and visited the ATM of State Bank of India near Govt. Sr.Sec.School, Mathura Road, Palwal at 5.16 P.M. on 28.4.2013.  He operated the said ATM and withdrew an amount of  Rs.15,000/-.  However, when the complainant took mini statement from the said SBI ATM, it showed the debit entry of Rs.10,000/-.  The said amount was debited immediately before the transaction made from SBI ATM.  It was stated that since it was Sunday, therefore, no complaint could be made to the Branch Manager, Axis Bank Ltd., Mathura Road, Palwal.  It was further stated that on the very next day, the complainant reported the matter to the Branch Manager of SBI, Haryana Civil Secretariat, Sector 1, Chandigarh, who sent complaint in the form of mail to the concerned authority for settlement of the dispute.  It was further stated that though the concerned authority assured on the mail that the grievances would be settled within 18 days, but to no effect. It was further stated that the Opposite Parties were deficient, in rendering service, as also, indulged into unfair trade practice. 

3.                    In its written reply, Opposite Party No.1 admitted that on 28.4.2013, the complainant operated the ATM installed in the Opposite Party No.1-Bank.  It was stated that the complainant operated his ATM Card in Opposite Party No.1-Bank ATM at 4.51 P.M. on 28.4.2013 and withdrew the amount of Rs.10,000/- from the ATM and the balance in the account of the complainant after the said withdrawal was Rs.24,294/- (Annexure R-2).  It was further stated that the cash balancing report matched with the electronic journal of ATM Machine and there was no physical cash excess identified by the OP Bank (Annexure R-3). It was further stated that the ATM machines were supported by the highest technology and excellent surveillance. Thousands of account holders utilize ATMs and the machines had never failed to show the correct deposit or withdrawal.  It was further stated that the EJ File in the ATM was the final proof of the authenticity of the transaction accepted across the World by all banks and it could not be manipulated by any person in any way whatsoever. It was further stated that  

4.                    Opposite Party No.2, in its short reply, in the shape of a letter as at Page No.49 of the District Forum file, stated that Sh.Amar Singh used the ATM at Asix Bank ATM at Palwal, Haryana to withdraw Rs.10,000/- on 28.4.2013 and as per the record, the account was debited with Rs.10,000/- on the same date.

5.                    The Parties led evidence, in support of their case.

6.                    After hearing the complainant, in person, Counsel for Opposite Party No.1, Sh.Sambhu Kumar, Assistant Office of Opposite Party No.2, and, on going through the evidence and record of the case, the District Forum, allowed the complaint against Opposite Party No.1, as stated above. 

7.                    Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.1.

8.                    Alongwith the appeal, an application for condonation of delay of 75 days has been filed.

9.                    We have heard the Counsel for the  ^{parties, on the application, for condonation of delay, as also, in the main appeal, and have gone through record of the case, carefully.}

10.                  In the application for condonation of delay, the Counsel for the applicant/appellant submitted that after receiving certified copy of the order on 03.12.2013, the same was sent by the Counsel for the applicant/appellant to Palwal Branch of the applicant/appellant. It was stated that thereafter the applicant/appellant sent the documents on 15.12.2013 to its Head Office for approval to file an appeal and after getting the approval, the applicant/appellant had instructed the Counsel on 20.12.2013 to file an appeal and send the required judgment.   

11.                  In reply to the same, the respondent/complainant, stated that the applicant/appellant had concocted a false story and made no effort to file appeal within the stipulated time and decided to file the same after receiving the summons in the execution application.  

12.                  Coming to the application, for condonation of delay, it may be stated here, that the same is liable to be dismissed, for the reasons, to be recorded hereinafter. The first question, that arises for consideration, is, as to whether, there is sufficient cause for condonation of delay of  ^{75 days, in filing the appeal, under Section 15 of the Act. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the  Punjab & Haryana High Court,  that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In  New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court   held as under:-}

“No doubt the words “sufficient cause” should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all “sufficient cause” is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.”

13.                   In  Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it was held as under:-

“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.”

14.                  In, the Supreme Court observed as under:-

“We hold that in each and every case the Court has to examine whether delay in filing the Special Leave Petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition”.

15.                  Recently, Supreme Court in ^{Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) has laid down that:-}

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”

16.                  Keeping in view the principle of law, laid down, in the aforesaid cases, it is to be seen, as to whether, the applicant/appellant, has been able to establish that it was, on account of the circumstances, beyond its control, that it could not file the appeal, in time. The appeal could be filed within 30 days, from the date of receipt of a certified copy of the order. One of the grounds, set up, by the applicant/appellant, in the application, for condonation of delay, was that the delay aforesaid, in filing the appeal, occurred on account of getting approval from its Head Office.   The applicant/appellant must be having a large number of Officers and Officials working in its offices. Had diligent efforts been made, approval of the Head Office could be obtained within a few days. The process of getting approval could be started immediately on receiving the certified copy of the order, through e-mails, fax etc.  ^{The Officers/Officials of the applicant/appellant apparently acted at a snail’s speed hardly bothering about the period within which an appeal could be filed.    The delay of 75 days, which was about 2 ½ months than  the normal period of filing an appeal under Section 15 of the Act, was on account of  the complete inaction and lack of bonafides, attributable to  the applicant/appellant.  The cause, set up by the applicant/appellant, in the application, for condonation of delay, could not be said to be such, as was beyond their control, which prevented it, from filing the appeal in time.   Even though the Counsel for the applicant/appellant took a ground that the file was mixed with other briefs during the shifting of his residence, and when his clerk tried to locate the said brief, the same could not be traced, which was only traced after receipt of the summons in the execution proceedings. Yet this plea of his (Counsel) is not supported by the affidavit of his clerk. Even no date and the month, when the office was allegedly shifted were mentioned and, as such, such a story could not be said to be trustworthy. If the applicant/appellant, neglected, in filing the appeal, within the period of thirty days, from the date of receipt of a certified copy of the order of the District Forum,   then it could not be heard to say that there was no intentional or deliberate delay, on its  part, in filing the appeal. The applicant/appellant, therefore, failed to prove any sufficient cause, in filing the appeal, after such a long delay of 75 days. Since no sufficient cause is constituted, from the averments, contained  in the application, the delay of 75 days cannot be condoned. The application is, thus, liable to be dismissed.} 

17.                  The next question, that arises, for consideration, is, as to whether, even if, sufficient cause is shown, it is obligatory on the Commission, to condone the delay. The answer to this question, is in the negative. In  ^{Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it was  held as under:-}

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

18.                  It is evident, from the principle of law, laid down, in ^{Ram Lal & Ors.’s case (supra), that even if, sufficient cause is shown, then the Court has to enquire, whether, in its discretion, it should condone the delay. This aspect of the matter, requires the Commission, to take into  consideration, all the  relevant factors, and it is at this stage, that diligence of the party(s) or its/their bonafides, may fall for consideration. In the instant case, as stated above, it was obligatory upon the applicant/appellant, to take immediate steps, to ensure that the appeal was   filed within the stipulated period, as envisaged under Section 15 of the Act.  However, the applicant/appellant, just slept over the matter and did not take steps to file the  appeal in time.  It was, thus, a case of complete lack of bonafides and inaction, on the part of applicant/appellant. The principle of law, laid down in Ram Lal & Others’ case(supra) is fully applicable to the instant case.   This is, therefore, not a fit case, in which this Commission should exercise its discretion, in favour of the applicant/appellant, in condoning the delay.}

19.                  The next question, that arises for consideration, is, as to whether, the Commission can decide the appeal, on merits, especially, when it has  ^{come to the conclusion, that there is no sufficient cause, for condonation of delay of 75 days in filing the same (appeal).  The answer to this question, is in the negative, as provided by the Apex Court in  State Bank ofIndia Vs B.S.Agricultural Industries (I) II(2009)CPJ 29(SC), while considering the provisions of   Section 24A of the Act. Although, the question before the Apex Court, was only with regard to the condonation of  delay, in filing the complaint, in the first instance, beyond the period of two years, as envisaged by Section 24A of the Act,  yet it (Apex Court) was pleased to observe as under ;}

“Section 24A of the Act, 1986 prescribes limitation period for  ^{admission of a complaint by the Consumer Fora thus:}

“24A. ^{Limitation period—(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.}

(2) Notwithstanding anything contained in Sub-section (1), a complaint may be entertained after the period specified in Sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.”

                       It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The Consumer Forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in Section 24A is sort of a legislative command to the Consumer Forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the Consumer Forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, 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.”}

20.                  The principle of law, laid down, by the ^{Apex Court in}