Per Mr.B.S.Wasekar, Hon’ble President
1) The complainant has filed this complaint u/s 12 of the Consumer Protection Act, 1986. According to the complainant, he opened savings account bearing No.515880 with the O.P./Bank, Parel Branch on 5th October, 1998 and since then he is operating. The complainant was working at Parel Mumbai till January-2001. From January-2001, he was transferred to Bhandup and it was not possible for him to visit the O.P./Bank frequently. The complainant was withdrawing the amount from his savings account by using withdrawal slips accompanied with pass book. On 6th July, 2001, he has deposited amount of Rs.15,000/- and Rs.3,500/- in his savings account and requested the concern staff to update his pass book. However, he was told that the computer of the bank was not working and he was asked to come later on for updating his pass book. According to the complainant, there should be balance of Rs.64,733/- as on 6th July, 2001. The complainant visited the O.P./Bank for updating his pass book for many times but his pass book remained unupdated till May-2004. Therefore, the complainant was not in a position to verify the balance in his savings account. On 17th May, 2004, the complainant requested the O.P./Bank to update his pass book in writing but he was asked to come after 15th August, 2004. The complainant visited the O.P./Bank on 8th September, 2004 and his pass book was updated. There was gap of entries for the period 8th March, 2001 to 28th February, 2002. The complainant raised objection vide letter dated 17th May, 2004. The same was replied after 15th August, 2004. On 8th September, 2004, the complainant forwarded letter objecting wrong entries in the pass book. On 9th November, 2004, the O.P. gave wrong explanation about withdrawals dated 11th April, 2001 for Rs.11,000/-, 6th May, 2001 for Rs.12,000/- and 17th August, 2001 for Rs.15,000/-. The complainant has never withdrawn this amount. The complainant was cheated by the O.P./Bank or by somebody else in collusion with the bank’s staff and misappropriated his amount of Rs.38,000/-. The complaint was lodged with Bhoiwada Police Station and also notice was issued to the O.P./Bank. There is deficiency in service by non updating his pass book for more than three years and as a result, the complainant suffered damages. Therefore, the complainant has filed this complaint for recovery of amount of Rs.38,000/- alongwith the interest at the rate of 5% per annum. He has also prayed for compensation of Rs.25,000/- for mental agony and cost of Rs.10,000/-.
2) The O.P. filed written statement. It is admitted that the complainant has savings account with it. It is not mandatory to produce the savings account pass book alongwith the withdrawal slip. It is the discretion of the branch manager to allow the withdrawal without production of the pass book. The pass book was updated and entries were correct. There is no negligence on the part of the O.P./Bank. The bank was under computerization and the entries were made manually. The deposit of Rs.3,500/- and Rs.15,000/- dated 6th July, 2001 are shown in the pass book. The complainant has withdrawn the amount and it is reflected in the pass book. The withdrawal slips are signed by the complainant himself. The complainant himself has withdrawn the amount Rs.38,000/-. The entries are correctly shown in the pass book. The complaint was lodged with Bhoiwada Police Station and the police has taken possession of three withdrawal slips and specimen signature card for the purpose of investigation. The matter is under investigation of police authorities. The documents are sent for handwriting expert opinion by the police authorities and the report is awaited. The complaint is barred by limitation. There is no application by the complainant to condone the delay. Therefore, the complaint is liable to be dismissed with cost.
3) The complainant has filed his evidence on affidavit dated 23rd November, 2006. The O.P./Bank also filed evidence on affidavit dated 23rd November, 2006. Thereafter, the complainant submitted written notes of argument on 13th December, 2006. The O.P./Bank also filed written notes of argument on 8th January, 2007. Both the parties have filed their documents on record. Thereafter, the letters were issued to the police authorities for production of handwriting expert opinion. The Bhoiwada Police Station informed this Forum that papers are sent for handwriting expert opinion. Copy of covering letter is also sent to this Forum. Thereafter, this Forum has delivered the judgment on 19th March, 2011 and allowed the complaint. Being aggrieved by this judgment, the O.P./Bank has filed appeal before the Hon’ble State Commission vide First Appeal No.A/11/508. The Hon’ble State Commission passed the order dated 9th August, 2012 and allowed the appeal. In para 5 of the judgment, the Hon’ble State Commission has observed as under :
Apart from that what we find is that the issue as to the limitation which perhaps arose needs to be taken into consideration, particularly, relevant dates as to when the complainant had a knowledge of the fraud committed i.e. withdrawl of the amount. Such statement is to be made clearly. Besides that complaint, as filed, is not against the Bank ( which is a service provider) but against its one of the employees, namely, ‘the Branch Manager’ of its Parel, Mumbai Branch. If the complaint is to be filed against the particular officer, i.e. the Branch Manager then his name ought to have been mentioned. If the complaint is to be prosecuted against the Bank, the title as described is a misdescription or otherwise. Since, we intend to remand the matter complainant is expected to take care of all these aspects.
The Hon’ble State Commission has specifically raised the issue as to limitation and directed the complainant to clarify it. The Hon’ble State Commission has also observed that the complaint is filed against the branch manager who is one of the employee and not against the bank which is a service provider. There is specific observation that the title is a misdescription. In view of this observation, it was necessary for the complainant to take steps in respect of the limitation and correct the description of the O.P. After remand, matter was fixed for hearing on 2nd November, 2012. Since 2nd November, 2012, matter was pending for hearing till 28th November, 2013. On 28th November, 2013, arguments of both the parties were heard.
4) After hearing both the parties and after going through the record, following points arise for our consideration.
POINTS
Sr. No. | Points | Findings |
1) | Whether the O.P. is service provider and the complaint is maintainable against the O.P. ? | No |
2) | Whether the claim is barred by limitation ? | Yes |
3) | Whether the complainant is entitled for the relief as claimed ? | No |
4) | What Order? | As per final order |
REASONS
5) As to Point No.1 :- The complaint is filed against the branch manager of the bank. In appeal, the Hon’ble State Commission has specifically raised the issue that the complaint is filed against the branch manager, the employee of the bank and not against the bank which is a service provider. It is also observed that if the complaint is to be prosecuted against the Bank then the title as describe is a misdescription. The complainant was also directed to take care of this aspect. In spite of these specific directions by the Hon’ble State Commission, no steps are taken by the complainant to correct the title and the complainant proceeded against the branch manager. The Hon’ble State Commission has specifically observed that branch manager is not the service provider and only the bank is the service provider. In spite of this observation of the Hon’ble State Commission, the complainant has not amended the complaint to prosecute the complaint against the bank instead of the branch manager. As the branch manager is not the service provider, this complaint is not maintainable in this Forum. At this juncture, we think it just to reproduce the observation of the Hon’ble State Commission in the case of The Managing Director And Chief Executive Officer, IDBI Bank Limited & Anr. –Versus- Krishna Chandra Pandey in First Appeal No. A/11/345 dated 12th October, 2011 as under :
In the instant case, IDBI bank who actually issued ATM cum Debit card and extended the facility to the complainant and his wife, is not a party. IDBI bank itself being the separate and distinct juridic person within the meaning of section 2(1)(m) of Consumer Protection Act, 1986 ought to have been made a party. Its ‘Managing Director’ or ‘Chief Executive officer’ and ‘Manager’ of a branch at Khar (West), certainly, are not one and the same like the bank itself. Each one of these officials is a separate and distinct juridic person. They are not ‘service providers’ in relation to which deficiency in service alleged, supra. When we brought this particular aspect to the notice of respondent/original complainant, he tried to submit that these officials during the trial before the forum did not contest the matter and at no point of time raised any objection that the bank is not a party. We are afraid whether they raised or not raised such objection is not the issue but such argument now advanced before us in appeal on behalf of the appellant and, basically, this particular issue goes to the root of the matter since the consumer dispute arose between ‘consumer’ and the ‘service provider’ and not with the person who are not ‘service providers’.
6) As to Point No. 2 & 3 :- In judgment, the Hon’ble State Commission has also raised the issue of limitation and the complainant was directed to take care of it. As per the complaint, there was withdrawal on three dates i.e. 11th April, 2001, 16th May, 2001 and 17th August, 2001. The complaint is filed on 5th August, 2006. Therefore, it is apparently barred by limitation. It is submitted by the learned advocate for the complainant that there were no entries in pass book about the withdrawals and therefore the complainant was not aware about it. On perusal of the copy of pass book, it appears that there was no entries in between 8th March, 2001 to 28th February, 2002. Even if, it is presumed that there was no entries till 28th February, 2002 still it was necessary for the complainant to file complaint within two years from 28th February, 2002. But, the complaint is filed in the year-2006 i.e. after four years. The learned advocate for the complainant has drawn our attention to the letter of complainant dated 17th May, 2004 asking details of withdrawals. It shows that the complainant was aware that there were no entries. The complainant has deposited amount Rs.15,000/- and Rs.3,500/- on 6th July, 2001. It was necessary for him to take entries in his pass book on the same day. If according to the complainant, bank employee failed to take entry in the pass book then it was necessary for him to give in writing to the officer of the bank. In para 6 of the complaint and evidence on affidavit, the complainant has stated that pass book remained unupdated till May-2004. It shows that the entries were taken in pass book in the month of May-2004. Even this statement is admitted still the complaint is not filed within two years from May-2004. In para 18 of the complaint and evidence on affidavit, the complainant has stated that no explanation was given for withdrawing the amount for more than three years. It shows that complainant was aware about the wrong withdrawal and filed complaint after three years from his knowledge. In written notes of argument dated 13th December, 2006, para 14, the complainant has stated that he is facing mental agony since last 4-5 years. It presumes that the complainant was knowing about the wrong withdrawals since 2001-2002. Thus, the complaint is apparently barred by limitation. There is no prayer for condonation of delay. Thus, the complaint is barred by limitation. At this juncture, we would like to rely upon the judgment of Hon’ble National Commission in Revision Petition No.3204 of 2013 in the case of Bulandshahar Development Authority –Versus- Jagannath Singh Tyagi, decided on 30th September, 2013. In this judgment, the Hon’ble National Commission has quoted the judgment of Hon’ble Supreme Court in case of Anshul Aggarwal – Versus- New Okhla Industrial Development Authority. In this judgment, the Hon’ble Apex Court has observed as under :
“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”.
As stated above, the complaint is apparently barred by limitation and there is no prayer for condonation of delay.
7) As discussed above, the complaint is not maintainable against the branch manager. It also barred by limitation. Therefore, the complainant is not entitled for the relief as prayed. Hence, the following order.
ORDER
1) Complaint stands dismissed.
2) Parties are left to bear their own costs.
3) Inform the parties accordingly.
Pronounced
Dated 7th December, 2013
