Sri Subhra Sankar Bhatta, Judicial Member
This appeal under Section 15 of the C.P. Act, 1986 has been directed at the behest of the Appellant viz. Krishna Chandra Dutta Agency Pvt. Ltd., a company incorporated under the Companies Act who was the Complainant before the District Consumer Disputes Redressal Commission, Kolkata Unit—II, Central (hereinafter referred to as the “District Commission” for short) challenging the impugned judgment and order dated 15th July, 2019 passed by the DCDRF in consumer complaint case no. CC/219/2019 wherein and whereby Ld. District Commission was pleased to dismiss the complaint petition at the stage of admission hearing with the observation that the complaint has not been filed within the prescribed period of limitation.
Present Appellant as Complainant instituted the petition of complaint under Section 12 read with Section 13 of the Consumer Protection Act, 1986 against the Opposite Party/Respondent herein and prayed for relief/reliefs as sought for in the prayer portion of the petition of complaint.
Case of the Complainant, in brief, is that the Complainant had opted 30 numbers of SBI Special Bearer Bond being nos. A142131 to 142146 dated 24.04.1981 and nos. A142148 to 142161 dated 27.04.1981 in his name having the face value of Rs. 10,000/- each aggregating a total value of Rs. 3,00,000/-. Those bearer Bonds were matured on 30.05.1991 and the OP/Bank issued a bearer cheque of Rs. 3,60,000/- to the Complainant on 30.05.1991 but the said cheque was returned as unpaid on 05.06.1991. In such situation the Complainant again deposited the said cheque on 21.06.1991 but the same were returned unpaid on 24.06.1991.
Further case of the complainant is that he contacted the Opposite Party/Bank for issuance of cheque towards the repayment of Rs. 3,60,000/- against the matured Bearer Bonds but was of no avail. Complainant has also stated that there was a change of registered place of business of the Complainant which was duly informed to the OP/Bank. Time and again the Complainant visited the Opposite Party/Bank with the request to disburse the matured amount of Rs. 3,60,000/- against the said bearer bonds but no payment was made. It has been categorically alleged that each of the Opposite Party who assumed charge of the post in the said bank had given their assurances to release the matured sum in favour of the Complainant but none had done anything till date. It has been also contended that the directors of the Complainant had personally visited and met the OP/Bank and also communicated with the OP/Bank for release of the payment on regular intervals. The last of such communication calling upon the OP/Bank to make payment of the amount of Rs. 3,60,000/- against the said bonds was made through the Ld. Advocate of the Complainant on 27.12.2018. It is the further case of the Complainant that the OP/Bank being the service provider has adopted unfair trade practices and also committed deficiency in rendering services to the Complainant and as such they are liable to compensate the Complainant. The Complainant is a consumer in terms of the provisions of Consumer Protection Act, 1986 and as such is entitled to get relief in terms of the provisions of the said Act. It has been further contended that the Complainant had suffered agony and harassment and consequently entitled to get necessary order in order to cover up the loss so caused. The Complainant had prayed for an order directing the OP/Bank to make payment of Rs. 3,60,000/- against the 30 numbers of SBI Special Bearer Bonds together with interest @ 18% from the date of maturity till its realisation and to direct the OP/Bank to pay compensation of Rs. 1,00,000/- for causing harassment.
On 15.07.2019 the Complaint Case was taken up for admission hearing by the Ld. District Commission. After hearing the Ld. Counsel for the Complainant and having considered the pleadings of the Complaint petition Ld. District Commission was pleased to pass the order in the following manner: -
“Hence,
ORDERED
That the complaint is not admitted as it has not been filed within the prescribed period of limitation”.
Being aggrieved by and dissatisfied with the above order of the Ld. District Commission the Complainant as Appellant has preferred the present appeal on various grounds as canvassed in the body of the memorandum of Appeal. It has been contended in the memorandum of Appeal that the Ld. District Commission erred in passing the impugned order in connection with complaint case no. CC/219/2019; that the impugned order of the Ld. Commission below is perverse, bad in law and not maintainable in the eye of law; that the Ld. Commission below passed the order without considering the rights and interests of the Appellant herein; that the Ld. Commission below failed to consider that until 2018 the Appellant had continuously persuaded the Respondent/Bank for release of payment against the matured Bearer Bonds and despite assurance by the Respondent/Bank the Appellant has been deprived of the rightful claim against the matured bearer bonds; that the Ld. District Commission failed to consider that there has been continuous cause of action in the matter of filing of the complaint proceeding against the Respondent/Bank; that the Ld. District Commission rejected the complaint petition without any justification; that the Ld. District Commission failed to appreciate that the Respondent/Bank has adopted unfair trade practices and also committed deficiency in rendering the services upon the Appellant; that the impugned order of the Ld. District Commission below is liable to be set aside. On all such grounds the Appellant has prayed for allowing the present appeal after setting aside the impugned order.
POINTS FOR DETERMINATION
1. Whether the Ld. Commission below was justified in passing the impugned order.
2. Whether the Ld. Commission below has committed any irregularity or illegality in passing the impugned order.
3. Whether the impugned order deserves interference of this Appellate Commission.
4. Whether the impugned order can be sustained in the eye of law.
DECISION WITH REASONS
All the above four points are taken up together for the sake of brevity of discussion and in order to avoid unnecessary repetitions.
Moreover, all the above points are interlinked and interrelated with each other.
Ld. Counsel appearing for the Appellant Krishna Chandra Dutta Agency Pvt. Limited has advanced a marathon argument on the point of deficiency of service and unfair trade practices adopted on the part of the Respondent/State Bank of India, Entally Branch. It has been argued that the Appellant had opted for total 30 numbers of SBI Special Bearer Bond being nos. A142131 to 142146 dated 24.04.1981and nos. A142148 to 142161 dated 27.04.2021 in the name of the Appellant Pvt. Ltd. having the face value of Rs. 10,000/- each aggregating a total value of Rs. 3,00,000/- and the matured date was fixed on 30.05.1991. It has been also argued that the Appellant Pvt. Limited accordingly placed the call for payment of the matured sum on 30.05.1991 and the Respondent/Bank had consequently handed over a bearer’s cheque amounting to Rs. 3,60,000/-(matured sum) being no. 844888 dated 30.05.1991 in the name of the Appellant. The Appellant deposited the said cheque with its Banker viz. United Bank of India, Lohapatty Branch on 03.06.1991 but the said cheque was returned unpaid on 05.06.1991. It has been also argued that the Appellant again deposited the said cheque on 21.06.1991 but the same was returned as unpaid on 24.06.1991. It has been alleged that the Appellant on several occasion contacted the Respondent/Bank for issuance of the cheque towards payment of matured sum of Rs. 3,60,000/- against the said Bearer Bonds but was of no avail. It has been also contended that there had been a change of the registered business place of the Appellant which was duly informed to the Respondent/Bank. The Appellant till December, 2018 had time and again visited the Respondent/Bank with the request to disburse the matured amount of Rs. 3,60,000/- against the said Bonds but the Respondent/Bank did not pay any heed to the request of the Appellant. It has been also alleged that the Manager of the Respondent/Bank who assumed charges in the said Bank from time to time had given assurances to release the payment but none had done anything till date and as such the Appellant has been deprived of his rightful claim. It has been further alleged that the Respondent/Bank being the service provider has adopted unfair trade practices and also committed deficiency in rendering the services to the Appellant and as such they are liable to compensate the Appellant. It has been also contended that the impugned order dated 15.07.2019 is perverse, bad in law, not maintainable and liable to be set aside. It has been forcibly argued that the Ld. District Commission passed the impugned order without considering the rights and interests of the Appellant and as such caused material irregularity and illegality. Drawing my attention to the judgment of the Hon’ble Apex Court in the matter of Karnataka Power Transmission Corporation and Another—vs.—Ashok Iron Works Pvt. Ltd. Ld. Counsel has vehemently submitted that the Appellant being a consumer within the ambit of the Consumer Protection Act, 1986 is entitled to get the relief as sought for in the petition of complaint but the Ld. District Commission has failed to appreciate that the cause of action has been continuing till December, 2018 as the Directors of the Appellant Pvt. Ltd. visited the Respondent Bank time and again in order to release the payment against the said Bonds but the Respondent/Bank failed to discharge their bounden duty of releasing the payment in favour of the Appellant. It has been also urged that the Ld. Commission below failed to appreciate that till December, 2018 the Appellant had continuously pursued the Respondent/Bank for release of the said payments but despite giving assurance the Respondent/Bank did not pay any heed and consequently the Appellant has been deprived of the rightful claim of money. Ld. Counsel for the Appellant has further drawn my attention to the decision of the Hon’ble Apex Court reported in National Insurance Company Limited—vs.—Hindustan Safety Glass Works Limited [with National Insurance Co. Ltd.—vs.—Kanoria Chemicals and Industries Limited reported in (2017) 5 SCC 776] and submitted that the Hon’ble Apex Court was pleased to hold that in our opinion “In a dispute concerning a consumer, it is necessary for the courts to take a pragmatic view of the rights of the consumer principally since it is the consumer who is placed at a disadvantage vis-à-vis the supplier of services or goods. It is to overcome this disadvantage that a beneficent legislation in the form of the Consumer Protection Act, 1986 was enacted by Parliament. The provision of limitation in the Act cannot strictly construed to disadvantage a consumer in a case where a supplier of goods or services itself is instrumental in causing a delay in the settlement of the consumer’s claim. That being so, we have no hesitation in coming to the conclusion that the National Commission was quite right in rejecting the contention of National Insurance in this regard.” Ld. Counsel has prayed for allowing the present appeal after setting aside the impugned order of the Ld. District Commission.
In order to refute the above submission of the Ld. Counsel for the Appellant, the Ld. Counsel appearing for Respondent/Bank has submitted that the Ld. District Commission rightly observed that the case of the Complainant is hopelessly barred by the law of limitation as the cause of action for the present case arose on 24.06.1991 and the period of limitation applicable in this case is governed under Section 24A of the Act which is within two years from the date of arising the cause of action. It has been vehemently urged that the Appellant/Complainant failed to initiate any proceeding or action till 27.12.2018. Mere sending of legal notice through the Ld. Advocate at a belated stage cannot be construed as a legitimate ground for condonation of inordinate delay in filing the petition of complaint. It has been also submitted that the Appellant did not produce any valid, satisfactory and cogent document to establish the cause for not filing the complaint within the prescribed period of limitation as provided under the Act. On all such grounds the Ld. Counsel appearing for Respondent/Bank has prayed for outright dismissal of the Appeal with costs.
Appellant as Complainant instituted the petition of complaint before the District Consumer Disputes Redressal Commission, Unit—II, Central, Kolkata against the Opposite Party/State Bank of India, Entally Branch under Section 12 read with Section 13 of the Consumer Protection Act, 1986 praying for the following relief/reliefs:
a. To admit the petition of complaint and be pleased to issue notices upon the Opposite Party as to why the prayer of the Complainant shall not be allowed;
b. To pass an order directing the OPs to make payment of Rs. 3,60,000/- against the 30 numbers of SBI Special Bearer Bonds being nos. A142131 to 142146 dated 24.04.1981 and A142148 to 142161 dated 27.04.1981 together with an interest from the date of maturity until realisation;
c. To pay compensation of Rs. 1,00,000/- for causing agony and harassment along with adequate litigation cost to your Complainant;
d. To pass further order/orders as your Honour may deem fit and proper for the ends of justice.
In the petition of complaint at Paragraph no. 12 the Appellant/Complainant has disclosed that the cause of action for the case arose on 24.06.1991 and has been continuing as the OP/State Bank of India failed and neglected to make necessary payments towards the matured Bonds till date. It has been also disclosed that the complaint petition has been filed well within the stipulated period of limitation as envisaged under the Consumer Protection Act, 1986.
It reveals from the case record that the complaint case was fixed on 15.07.2019 for admission hearing. After hearing the Ld. Counsel for the Complainant and on perusal of the contention of the petition of complaint and other materials available on record Ld. District Commission was pleased to hold that “the Complaint is not admitted as it has not been filed within the prescribed period of limitation.” In the body of the impugned order Ld. District Commission was pleased to observe that the cause of action for filing the complaint arose as and when the Complainant came to know for the first time that the Bearer Cheque was returned as unpaid on 24.06.1991. Neither serving of the legal notice upon the OP/Bank nor their response to the said notice gave any fresh cause of action to the Complainant to file the complaint. The cause of action which accrued to the Complainant before the Forum cannot be said to be a continuing cause of action and once they have come to know that the Bearer Cheque was returned unpaid, they were required to approach this Forum within 02 years of acquiring the said knowledge. Ld. Commission was further pleased to refer the decision reported in Haryana Urban Development Authority Vs. B.K.Sood, MANU/SC/1683/2005 IV(2005) CPJ1(SC), the Hon`ble Supreme Court referring to provision of Section 24A of the Consumer Protection Act, 1986 inter alia observed under :-
“11. the section debars any fora set up under the Act, admitting a complaint unless the complaint is filed within 02 years from the date of which cause of action has arisen”.
Herein the present case it is crystal clear that the Appellant/ Complainant had opted for total 30 nos. of SBI Special Bearer Bonds being nos. A142131 to 142146 dated 24.08.1981 and A142148 to 142161 dated 27.04.1981 having the face value of Rs.10,000/-each aggregating a total sum of Rs. 3,00,000/- and the maturity date of those Bearer Bonds were fixed on 30.05.1991. The Appellant/Complainant accordingly placed the call for repayment of the matured sum on 30.05.1991. Consequently, the Respondent/State Bank of India, Entally Branch handed over a Bearer Cheque amounting to Rs.3,60,000/- vide cheque no. 844888 dated 30.05.1991 in favour of the Appellant/Complainant. Accordingly, the Appellant/Complainant had deposited the said cheque with its Banker viz. United Bank of India, Lohapatty Branch on 03.06.1991 but the same was returned unpaid on 05.06.1991. Under such circumstances the Appellant/Complainant again deposited the said cheque on 21.06.1991 but the same was also returned as unpaid on 24.06.1991. It has been categorically alleged by the Appellant/Complainant that despite repeated requests the Respondent/Bank did not issue fresh cheque towards the payment of matured sum amounting to Rs.3,60,000/- against the said Bonds. According to the Appellant/Complainant they visited the office of the Respondent/Bank time and again with the request to disburse the matured sum of Rs.3,60,000/- against the said Bonds but despite giving assurance the Respondent/Bank did not release the payment in favour of the Appellant/Complainant till date. It has been specifically averred that the Appellant/Complainant ultimately communicated the Respondent/Bank for payment of the matured sum against the said Bonds through their Ld. Counsel on 27.12.2018. It is the case of the Appellant/Complainant that the Opposite Party/Bank being the service provider has adopted unfair trade practice and also committed deficiency in rendering services to the Consumer/Complainant.
In Subhash Mehta Vs. HDFC Bank Ltd., Consumer Complaint Case no. 2073 of 2019 Hon`ble National Commission was pleased to hold that “as the Opposite Party has not paid the maturity amount of fixed deposit of Rs. 30,00,000/- which has been admitted in the written statement filed by the OP in OP no. 97 of 2005 the cause of action would be treated as continuing and, therefore, delay an issue in the present complaint as the same has been filed after the Complainant has been acquitted in the Criminal Case relating to alleged forgery filed by the OP only on 13.04.2018”. Undoubtedly, the Appellant/Complainant did not receive the matured the sum of Rs.3,60,000/- despite presenting the same before its Banker. It is also an admitted fact that the Bearer Cheques issued from the end of the Respondent/Bank were returned without encashment. Ultimately, the Appellant/Complainant sent Advocate`s notice on 27.12.2018 to the Respondent/Bank with the request to make payment of the matured sum of Rs.3,60,000/- against the said Bonds. Thus, it can be safely concluded from the documents and averments on record that the Respondent/Bank did not credit the matured sum in favour of the Appellant/Complainant till date and the said money is still lying with the OP/Bank. In our considered view, it is the bounden duty of a Nationalised Bank to hand over the matured sum to a Customer/Consumer against his/her deposit towards Fixed Deposits/Bonds. Until and unless the matured sum is disbursed to the Consumer/Complainant by the Service Provider/Bank against the Deposits at the time of maturity the cause of action will be considered as continuing. There is nothing on record to think otherwise. Moreover, Consumer Protection Act is a benevolent legislation in order to protect the interest of the Consumer.
Considering all aspects from all angles and having considered the submissions of both sides and keeping in mind the observations of the Hon`ble Courts we hold and firmly hold that the cause of action which accrued to the Complainant for institution of the petition of complaint is certainly a continuing cause of action as the matured sum against those Bonds has not yet been disbursed in favour of the Appellant/Complainant by the Respondent/Bank despite attaining maturity. Thus, we have no hesitation to conclude that the observation and ultimate conclusion arrived at by the Ld. District Commission at the time of admission hearing was not at all justified.
Practically, Ld. District Commission has committed gross mistake and irregularity in the approach. Hence, the impugned order certainly deserves interference of this Appellate Commission.
The impugned order cannot be sustained in the eye of Law.
All the points are thus answered in favour of the Appellant.
Resultantly, the appeal succeeds.
It is, therefore,
O R D E R E D
That the present First Appeal being no. A/653/2019 be and the same is allowed on contest but considering the circumstances without any order as to costs.
That the impugned order passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II, Central on 15.07.2019 vide order no. 2 in connection with complaint case no. CC/219/2019 at the admission stage is hereby set aside.
The Complaint petition is admitted.
Both the parties are directed to appear before the District Commission on 19.05.2023 for receiving further order/orders.
Ld. Commission below is directed to dispose of the complaint case as soon as possible in accordance with law. The above observations are made tentatively without touching the merit of the case.
Let a copy of this judgment and order be transmitted to the Ld. Commission below forthwith for information and taking necessary action.
Thus, the appeal stands disposed of.
Interim order, if any, be vacated forthwith.
Note accordingly.
