DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)

ISBT KASHMERE GATE DELHI

CC/262/2019

M/s Deepika Agencies

Through its Proprietor

Nishi Gulati

93/13B, Road No.-1A,

Mundla Industrial Area,

New Delhi-110041.…..COMPLAINANT

Syndicate Bank

Through its Manager

Rani Jhansi Road Branch

Jhandewalan, New Delhi-110055.

Also at:

Sarojini House, 6,

Bhagwandas Road,

New Delhi-110001.

United India Insurance Pvt. Ltd.

Regional Office-Delhi

18 Barakhamba Road,

Connaught Place, New Delhi-110001. …..OPPOSITE PARTIES

Coram:       Ms. Rekha Rani, President

                   Ms. Manju Bala Sharma, Member

                   Dr. R.C. Meena, Member

ORDER

Ms. Rekha Rani, President

1. Instant complaint has been filed by M/s Deepika Agencies (in short the complainant) under Section 12 of the Consumer Protection Act 1986 (in short the Act) as amended up to date inter-alia pleading therein that complainant is engaged in the business of trading products for hospitals and is having a current account bearing number 90231010009450 with Syndicate Bank (in short OP), Rani Jhansi Road Branch, Jhandewalan, New Delhi. Complainant was having regular business wherein there were several debits and credits in the said account.  In the month of December 2014, when the complainant got its passbook updated, it was shocked to find out several illegal and unauthorised debit entries amounting to a total of Rs. 8,00,000/- in the passbook (through NEFT) from the current account of the complainant to different accounts at different places as per details given in Para 5 of the complaint.  When complainant came to know about the illegal and unauthorised transactions, it immediately complained to SHO Paharganj Police Station, New Delhi on 04.12.2014 regarding the illegal transfer of Rs. 8,00,000/- from its current account. Said Police Station registered an FIR No. 0657 dated 27.12.2014 under section 420 of IPC. 

          During investigation, the police issued a notice under section 91 CrPC to the Bank Manager of OP.

          Complainant requested the branch manager and other officials of OP to take the matter seriously as fraudulent transactions led to huge loss to the complainant but till date no investigation report has been provided to the complainant by the OP Bank.

          Complainant moved an RTI application dated 02.04.2019 seeking information regarding fraud from OP Bank. OP Bank responded to RTI application vide letter dated 29.07.2019.

          Complainant has prayed for direction to the OP to pay it Rs. 8,00,000/- along with interest of Rs. 4,06,666/-, Rs. 2,00,000/- as compensation for causing mental agony and litigation expenses.

2. The case is at admission stage.  We have heard Sh. Anish Chawla, counsel for complainant.
3. The case is barred by limitation even as per complainant’s own pleadings.  It came to know about the alleged fraud in December, 2014 (Para 5 of the complaint) but the instant complaint was filed on 30.09.2019.
4. Section 24A in the Consumer Protection Act, 1986

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.
•      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.’’

5. Law and equity aid the vigilant and not the indolent. If statute provides for specific limitation for filing a claim, it vests right with the OP on expiry of said limitation period which right should not be defeated by casual condonation of huge, unexplained delay (Anshul Aggarwal Vs. New Okhla Industrial Development, IV (2011)  CPJ 63 (SC).     
6. In Ramlal Vs Rewa Coalfields Ltd , AIR 1962 Supreme Court 361, it was observed that diligence of the party or its bonafides are relevant facts to determine whether or not delay is reasonably and sufficiently explained.
7. In M Balakrishnan vs M. Krishnamurthy VII (1998) SLT 334 the Hon’ble Supreme court observed as under:

“Rule of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period of launching the remedy may leading to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maximum interest ‘‘reipublicae up sit finis mum (it is for the general welfare that a period be putt to litigation).The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.”

8. In Office Of The Chief Post Master General & Ors Vs Living Media India Ltd.& Anr., II (2012) SLT 312 it was held by the Apex Court that unless there is reasonable and acceptable explanation for the delay and there was bonafide effort delay should not be condoned because condonation of delay is an exception.
9. In R. B. Ramalingam Vs R. B. Bhavaneshwari . 2013 (1) CCC 525 (NS)  2009 (2) Scale 108  it was observed that the true  guide to condone delay is whether the petitioner has acted with reasonable diligence in prosecution of his petition.
10. In Cicily Kallarackal Vs Vehicle Factory , IV (2012) CPJ 1 (SC)=VIII (2012)  SLT 585, Hon’ble Supreme Court observed that while dealing with the application for condonation of delay special courts/ tribunals must keep in mind the special period of limitation prescribed under the statue(s) and further that condoning inordinate delay without any sufficient cause would amount to substituting the period of limitation in place of the period prescribed by the Legislature when the statures so prescribes.
11. In Nirkari Industries Vs Noida Industrial Authority IV (2016) CPJ 121 the Hon’ble NCDRC did not entertain a complaint, since not filed within a period of two years from the date of cancellation of letter, since barred by limitation.
12. In C.H. Vittal Ready Vs. The Manager, District vide order dated 04.12.2002 the Hon’ble NCDRC observed as under:

“Condonation of delay when it is the complaint has to be taken very seriously and that is why proviso to sub section (2) of Section 24A mandates recording of reasons. It must be understood that a suit filed in a Civil Court after the period of limitation prescribed under the Limitation Act has to be dismissed and there is no provision for condoning the delay on the ground of any sufficient cause being shown for not filing the suit within the period of limitation. This is the law which is in force since 1908 when the Limitation Act, 1908 came into force and same is the position of the Limitation Act, 1963. Sub section (2) of Section 24Ais a departure to the well settled law that a suit beyond the period of limitation prescribed under the Limitation Act has to be dismissed. A Consumer Forum has, therefore, to guard itself against the misuse of sub-section (2) of Section 24A and should not be quick to condone the delay unless cogent and verifiable reasons exist to condone the delay.”

13. In Baswaraj  Vs. Spl.Land Acquisition Officer 2013 (14) SCC 81 the Hon’ble Supreme court held that it is settled legal proposal that law of limitation may harshly affect a particular party so it has to be applied with all its rigour when the statute so prescribes.       
14. In Esha Bhattacharjee vs Raghunathpur Nafar Academy (2013) SCC 649 the Hon’ble Supreme court held that concept of liberal approach has to encapsule the concept of reasonableness and it cannot be allowed an unfettered free play.
15. In Sanjay Sidgonda Patil Vs National Insurance Co. Ltd & Ors, the Apex Court while dismissing the Special Leave to Appeal (Civil) No. 37183 of 2013 decided on 17.12.2013, upheld the order of the National Commission wherein delay of 13 days was not condoned.
16. Punjab State Commission in Pradeep Kumar Son of Shri Haridwar vs. Life Insurance Corporation First Appeal No. 1289 of 2009 dated 10.05.2013 had held that it is a settled law that the limitation for filing of the complaint starts form the date of knowledge of the repudiation of the claim to the person, who submit the claim as held by the Hon’ble State Consumer Disputes Redressal Commission, Panchkula in case “HUDA through it Administrator and Anr. Versus Raj Pal Singh”, 2010 (1) CLT 567.
17. Apex Court in Hameed Joharan Vs. Abdul Salam, (2001) 7 SCC 573 2001 Indlaw SC 21137 made the following observations:-

“Law courts never tolerate an indolent litigant since delay defeats equity - the Latin maxim vigilantibus et non dormientibus jura subveniunt (the law assists those who are indolent). As a matter of fact, lapse of time is a species for forfeiture of rights......"

            It is pleaded in the application seeking condonation of delay that “cause of delay in filing the present compliant is due to false assurances given by OP1 that they are investigating the matter & soon they will recover the cheated amount” (Para 7).  This is hardly any explanation.

18. Viewed from another angle it is complainant’s own case that it is a business entity and is engaged in the business of trading products for hospitals and is having a current account with OP Bank where there were several debits and credits in the said account.
19. Section 2 (1)(d) of the Consumer Protection Act which defines the term ‘consumer’,  to the extent it is relevant, reads as under:-

“Consumer” means any person who –

(i)      buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii)     hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who ^‘hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person  but does not include a person who avails of such services for any commercial purposes.

20. In Subhash Motilal Shah (Huf) & Ors vs Malegaon Merchants Co-Op Bank Ltd., a consumer complaint no. 87/2008 before District Consumer Disputes Redressal Forum, Nasik related to alleged deficiency in service on the part of OP bank for honouring various cheques, which according to complainant were the cheques not issued by the account holder and signature of the operating person were forged. Forum dismissed the consumer complaint on two counts, on the count of limitation and that the complainants were not consumers since it related to commercial transaction vis-a-vis services were hired for commercial purpose.

In appeal, State Commission vide its order dated 27.02.2012 dismissed the appeal while observing:

 “Admittedly, since Rainbow Corporation is a firm of Ajay Subhash Shah (HUF), i.e.jurisdic person there arise no question of self employment so as to cover the case under explanation to section 2(1)(d)(ii)of the Consumer Protection Act, 1986 (Act for brevity). It is a case relating to an action related with services given while operating the Current Account of Appellant Rainbow Corporation which was admittedly opened and used for business purpose, of the business of commission agent and business of yarn sale. Therefore, since the account itself is connected and related to the business transactions and such banking activity is required for the functioning of a given business enterprise of the appellant/complainant, services hired for that purpose would fall within the category of hiring services for commercial purpose. A useful reference can be made to free dictionary by FARLEX (on Internet) which defines the Business Activity as the activity undertaken as a part of commercial enterprise. Further, reference can be made to an article available on the internet Website Wise Geek (copy right protected 2003-12 by Conjecture Corporation) and which is written by Alexis.W, edited by Heater Bailey.

21. Learned counsel for complainant has relied on judgments of State Consumer Disputes Redressal Forum, Maharashtra, Mumbai titled Sh. Thomas Ninan vs. Axis Bank Limited &Anr. (Appeal No. A/14/755) dated 07.08.2017, States Consumer Disputes Redressal Forum, Telangana in ICICI Bank Limited vs. Mr. Kateka Sudhakar ( FA No. 1284/2013) dated 05.03.2018.

Facts in the cited cases were that the complainants were account holders of OP Bank having savings accounts. The complainants allegedly faced losses due to fraudulent transactions in their respective savings bank accounts. The cited judgments are not applicable to the present case because in the cited judgments the complainants were individuals having savings bank accounts whereas in the instant complaint, complainant is a company having current account with OP Bank.

22. The complainant is not a consumer since it is a business entity and it hired services of the OP Bank for commercial purposes. The account is in the name of the complainant firm and is related to its business transactions.  The complaint is also barred by limitation.  Complaint is therefore dismissed.  Copy of this order be sent to the parties as per rules. File be consigned to record room.

Announced this         of              2019.