PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 27th day of August 2012
Filed on : 30-03-2012
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No. 212/2012
Between
E.P. Joseph, : Complainant
S/o. Late Paily, Residing at (By Adv. George Briston
House No. NNRA.61, M/s. Mizmorj & Lawyer
Nivya Nagar, Perandoor road, IIIrd floor, Swapnil Enclave
Kaloor, Kochi-682 017. Marine Drive, Kochi-31)
And
1. The Canara Bank, : Opposite parties
Fort Kochi Branch, (1st OP by adv. Nandakumar A
Ernakulam, Kochi, Seethu Pushpakaran, N.J.
Kerala-682 001. Associaates, Thuruthummel
rep. by its Manager. Buildings, Market road north,
Cochin-682 018)
2. Union Bank of India, (2ndOPBy Adv. Rajesh Thomas,
Edappally Branch, Ernakulam, 41/3792 C2, !st Floor,
Kochi, Kerala 682 024, Carmel Centre, Banerji road,
rep, by its Manager. Kochi-18)
O R D E R
C.K. Lekhamma, Member.
The case of the complainant is as follows:
The complainant is holding SB Account with the 1st opposite party. On 06-05-2009 the complainant tried to withdraw an amount of Rs.3,000/- through ATM counter of the 2nd opposite party bank. After pressing the button requesting for the transaction the money came out, but even before taking the money it went back into the machine but the complainant received a transaction slip showing withdrawal of Rs. 3,000/- from his account. The complainant immediately informed the matter with the managers of the opposite parties. The 1st opposite party’s manager asked the complainant to give complaint in writing and the complainant to do so. The manager assured that the money would be credited into the complainants account in a short span of time. But did not do so. The complainant waited for several months. Then the complainant approached the manager several times directly the manager said that the 2nd opposite party is still keeping the money with them and has not transferred the money to the 1st opposite party. But till date no positive steps was taken by the opposite parties to give back the money. The acts of the opposite parties amount to deficiency of service and also unfair trade practice. The complainant is seeking the following directions against the opposite parties.
i. to refund the amount of Rs. 3,000/- to the complainant with
interest.
ii. To pay compensation towards the hardships, other
incidental expenses and costs of the proceedings
2. The version of the 1st opposite party is as follows:
The complainant is maintaining his SB account with the 1st opposite party. But no transaction is recorded on 06-05-2009 in the account statement pertaining to the account of the complainant. The complainant’s oral complaint was taken up and since there was no debit on the said day the same was intimated to him. Any failed transactions, can be revealed only from the bank in whose ATM counter the cash is attempted to withdraw and that too with the proper withdrawal slip recording the date and time of transaction. The complainant failed to provide any such details by which opposite party would not be in a position to find out any non disposal of cash in ATM transaction. . The complaint is devoid of any merits and the same is to be dismissed with cost. Moreover the complainant is barred by limitation, which is not explained by the complainant to the satisfaction of this Forum.
3. Version filed by the 2nd opposite party is as follows:
The complaint is barred by limitation and no petition for condonation of delay has been filed by the complainant explaining the delay to the satisfaction of this Forum. Hence the plea of limitation may be taken as a preliminary issue as the complaint is liable to be dismissed on that ground alone. The complainant has not produced the transaction slip to prove his statement. The transaction is not recorded on the account statement of the complainant on 06/05/2009. The 2nd opposite party is the acquirer bank, and it is for the issuer bank to take up and settle such issue. Since no transaction has been recorded in the account of the complainant maintained with the 1st opposite party on the alleged date of transaction by the complainant, no deficiency of service can be alleged on the 2nd opposite party. The complaint is filed without even producing the account statement and transaction slips to primarily make out a case. The prayer in the complaint is totally misconceived as there is no cause of action and therefore the complaint is liable to be disallowed.
3. The complainant and the opposite parties appeared through counsel. The opposite parties raised the plea of limitation through their versions. Heard both sides regarding question of limitation.
4. The case of the complainant is that he is an account holder of the 1st opposite party. Being so he had tried to withdraw an amount of Rs. 3,000/- through the ATM counter of the 2nd opposite party on 06/05/2009. According to him before collecting the money it went back to the machine. After that the complainant received a transaction slip showing withdrawal of Rs. 3,000/- from his account. The complainant submitted a written complaint before the 1st opposite party. Even though the complainant waited for several months nothing was done by the 1st opposite party.
Both opposite parties raised the plea of limitation. They averred that according to the complainant the transaction was recorded on 06/05/2009 and no petition for condonation of delay has been filed. The complainant has not produced the account statement or the transaction slip in support of his contention.
The 1st opposite party produced the statement of Accounts for the period from 01/01/2009 to 30-04-2012 pertaining to the complainant’s account. The complainant alleged that the disputed transaction on 06-05-2009. As per the account statement there is no withdrawal on 06-05-2009. Nothing is on record to prove the transaction between the complainant and the 2nd opposite party on 06-05-2009. Moreover, admittedly that the complainant has not filed any petition to condone the delay in filing the complaint. The learned counsel for the complainant relied on the decision rendered by the Hon’ble Supreme Court in Lata Construction And others Vs. Dr. Rameshchandra Ramnikal Shah (2000) 1 Supreme Court Cases 586. It was so held that “since the rights under the first agreement had not been given up and appellant was constantly under an obligator to provide a flat to the respondents and deliver possession thereof to them, the “cause of action” has to be treated as a “continuing cause of action” and therefore, the claim was not beyond time – Moreover, since the whole amount has not been paid to the respondents, rights under the old agreement did not come to an end and respondents could claim specific performance of that agreement and hence their claim was not barred by time.” The said decision is pertaining to a Housing/Building agreement. The same is not applicable in this case.
In the absence of any evidence to substantiate the contentions of the complainant regarding the period of limitation we have no hesitation to hold that the complaint is preferred beyond the period as envisaged in S. 24 A of the Consumer Protection Act. This point is found against the complaint and the further discussion in the remaining points is not at all warranted. For the aforementioned reasons the proceedings in the complaint stands closed.
Pronounced in the open Forum on this the 27th day of August 2012.
Sd/-
Forwarded/By Order, C.K. Lekhamma, Member.
Sd/-
A Rajesh, President,
Sd/-
Senior Superintendent. Paul Gomez, Member.
