Sri Utpal Kumar Bhattacharya, Member
Instant Appeal u/s 15 of the C.P Act, 1986 has been filed by the Appellant/Complainant challenging the judgment and order dated 27.09.2018 passed by the Ld. District Forum, Kolkata Unit—II in Complaint Case no.CC/211/2017 dismissing the complaint on contest observing the Complaint Case barred by limitation under Section 24A of the said Act.
The fact, in a nut-shell, leading to the instant controversy was that the Appellant/Complainant took a loan from the Respondent/OP No. 1 for an amount of Rs. 3,33,778/- for purchasing a car. Repayment of the first instalment of the loan was to be made for an amount of Rs. 9,520/- whereas the repayment in respect of the rest instalments were to be made at an EMI of Rs. 9,537/-.
The Appellant/Complainant had paid all the instalments excepting the 4th one when the cheques submitted for the purpose was dishonoured. The Appellant/Complainant, however, paid the said instalment in cash through the agent of the Respondent/OP No. 1 namely one Susanta. Repayment against the loan taken from the Respondent/OP No. 1 being fully made, the Appellant/Complainant demanded from the Respondent/OP No. 1 a clearance certificate of the subject loan which was essentially required for the registration of the subject vehicle to be converted from commercial carrier to private carrier. The Respondents/OPs, although had given the certificate for conversion and for duplicate registration but did not issue the most desired certificate towards clearance of the subject loan, as sought for by the Appellant/Complainant, on the pretext that the Appellant/Complainant was still to pay an amount of Rs. 30,977, being the total towards principal and interest of the loan for the amounts of Rs. 16,290/- and Rs. 14,687/- respectively. Repeated persuasion towards obtaining the desired certificate being gone in vain, the Respondent/Complainant came up with the complaint before the Ld. District Forum which disposed of the complaint dismissing it on the ground that the complaint was filed beyond the statutory period of limitation. Instant Appeal challenged the said order.
Heard both sides through their respective Ld. Advocates. Ld. Advocate appearing on behalf of the Appellant/Complainant, describing the entire issue in the same line narrated in the complaint, submitted that the Respondent/OP with its dishonest motive of deriving unlawful enrichment, did not issue the clearance certificate of the subject loan although repayment of the entire amount of loan was made by the Appellant/Complainant paying the last instalment as back as on 11.05.2011. The Appellant/Complainant, as the Ld. Advocate continued, had to suffer from a financial loss in the form of tax at a higher rate for continuing with the registration of the commercial carrier although he intended to get the carrier converted to a private one. The wanting clearance of loan which already stood in the way of her getting ownership of vehicle, stood in the way as well of the intended version.
Referring to the running page 57, the Ld. Advocate submitted that the Appellant/Complainant, with the said communication, demanded the “no due” certificate detailing therein the degree of agony and financial loss that the Appellant/Complainant had to sustain because of the deficiency in rendering services on the part of the Respondents/OPs.
Referring further to the running page 58, being the loan recall notice dated 12.01.2013, the Ld. Advocate denied the full repayment of loan as claimed by the Appellant/Complainant and demanded from her the outstanding dues. The matter was referred to Lok Adalat where, as contended, both sides were present but the Respondents/OPs did not furnish any copy of the order passed in the Lok Adalat.
As the Ld. Advocate continued, the dismissal order of the complaint was passed by the Ld. District Forum with the observation that the complaint was filed beyond the statutory period of limitation when the fact remained that there was continuous cause of action. The Ld. Advocate maintained that the Appellant/Complainant’s communication dated 23.02.2012, running page 57, expressing grievances against not issuing the loan clearance certificate in spite of full repayment already made was meted out with no response from the Respondents/OPs. This made the claim of the continuous cause of action even firmer.
As regards termination of loan agreement which the Respondents/OPs allegedly had made, the Ld. Advocate submitted that after recovery of loan in full, it was having no material value. The Respondents/OPs, as claimed, did not repossess the vehicle or prefer any debt recovery case which they must have filed before the proper Forum had the Appellant/Complainant been a loan defaulter.
Ld. Advocate prayed for the case to be remanded for hearing on merit before the Ld. District Forum.
The Ld. Advocate appearing on behalf of the Respondents/OPs, per contra, submitted that para (d) running page 28 being the written version filed by his clients was revealing about the fact that both sides appeared before the Ld. Lok Adalat. The Respondents/OPs denied the passing of order by the Ld. Lok Adalat with any direction upon them to issue the subject NOC (No objection certificate) to the Appellant/Complainant. Appellant/Complainant also failed to produce copy of any such order claimed to have been passed by the Ld. Lok Adalat.
Referring to running page 31, the Ld. Advocate submitted that the due date of repayment was fixed on 11th day of every month. Running page 34 indicated that there was delay in repayment also in every month which resulted in a cumulative delay of 1248 days creating accrual of interest on the overdues to the tune of Rs. 14,687/- which in addition to the due principal amount of loan of Rs. 16,290/- made the outstanding dues to Rs. (16290+14687)=30,977/- in total. As pointed out in the loan recovery statement delineated at running page 34, the loan instalment amounts were not always uniform. Sometimes even the loan instalment paid was lesser in amount.
The Ld. Advocate continued to submit, that running page 58 was the last communication dated 12.01.2013 made to the Appellant/Complainant by the Respondents/OPs denying the claim of repayment of the entire loan amount. Since there was no response, presumably the Appellant/Complainant had no grievance against the said correspondence. Now that the complaint case was filed by her, the date of initiation of the cause of action should not be treated on and from any latter date than 12.01.2013. Since the complaint was filed on 31.05.2017, the complaint case was hopelessly barred by limitation which the Ld. District Forum had correctly observed while dismissing the complaint.
As regards fourth instalment which was claimed to have been paid in cash through the agent of the Respondents/OPs after the cheque containing the amount of the said instalment was dishonoured, the Ld. Advocate submitted that it was difficult to believe that the Appellant/Complainant would pay the amount without any money receipt. There was no receipt in support of such payment in cash nor it was reflected in the Bank statement of repayment. Presumably, the Appellant/Complainant was trying to establish his claim on the false plea which should be discarded in limini.
The Ld. Advocate prayed for dismissal of the Appeal affirming the impugned judgment and order.
We have perused the papers on records and considered submissions of the Ld. Advocates appearing on behalf of both sides. We also consulted the copy of the LCR. The statement showing repayment at running pages 103 to 113 revealed that withdrawal of instalment amounts were recorded 34 times in place of 36 times which were admittedly scheduled for repayment of the entire loan. Therefore, prima facie, there was shortage of payment of at least two instalments.
Further, we did not find any money receipt supporting cash payment. The payment of fourth instalment in cash through one Susanta, the agent of the Respondent/OP, consequent upon the cheque issued for payment of the said instalment being dishonoured, hardly had acceptability in absence of the money receipt. Moreover, the veracity of the claim about cash payment could not be testified in absence of the agent who was not made a party to the complaint.
As regards determination of the vital point on limitation, we felt that the Ld. District Forum had probably made no mistake in viewing the petition time barred while dismissing the same. It appeared that the Respondent/OP Bank, in spite of the Appellant/Complainant’s claim of full repayment of loan through its communication dated 23.02.2012, issued the loan recall notice dated 12.01.2013, that is, much latter than the Appellant/Complainant’s communication refuting his claim and demanding from him the payment of outstanding dues.
It was clear that the cause of action of the instant issue actually initiated from 12.01.2013 on which the loan recall notice was issued because the notice, on the instant occasion, was conveying finally the refusal of acceptance of the Appellant/Complainant’s claim of full repayment of loan.
The Appellant/Complainant, inserting certain hand written lines beneath the para 8 of the Complainant at running page 19, referred to a letter dated 01.03.2017 allegedly sent by him further to the Respondent/OP pursuing the desired NOC. We did not find any copy of the said letter in the record. We, therefore, were led to assume with the subject letter was referred to in the complaint more as a measure to drag the date of initiation of the cause of action within the permissible ambit of the period of limitation.
It is a settled principle of law that mere communication cannot change the date of initiation of the cause of action to the benefit of the Complainant. The Ld. District Forum had amply elaborated the reason for non-acceptance of the plea raised before the Forum for extending the period of limitation citing the decisions of Hon’ble National Commission in at least three different cases. We find reasons behind the observation of the Ld. District Forum since the point raised by the Respondent/OP, being the statutory provision, reached the root of the issue.
Above being our observation, we are constrained to hold that the complaint was really time barred and was dismissed by the Ld. District Forum on right reason.
Hence,
Ordered
that the Appeal be and the same stands dismissed. Impugned judgment and order stands affirmed. No order as to costs.
