Kerala

Thiruvananthapuram

CC/10/118

G.Radhakrishnan Nair - Complainant(s)

Versus

The Manager, Federal Bank Ltd and other - Opp.Party(s)

Sajeev Kumar

27 Aug 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL

COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM

 

PRESENT

SRI.P.V.JAYARAJAN                : PRESIDENT

SMT.PREETHA G NAIR            : MEMBER

SRI.VIJU.V.R                           : MEMBER

CC.NO.118/2010 (Filed on : 25.05.2010)

ORDER DATED : 27/08/2021

COMPLAINANT

            G.Radhakrishnan Nair,

            S/o.R.Gopala Pillai,

            Sruthy, V.P.No.IX/372,

            Kallampally, Elamkulam  Junction,

            Sreekariyam.P.O

            Thiruvananthapuram

 

                              (BY Adv.Aji Gopinath)

                                                VS

OPPOSITE PARTIES

1. The Manager,

Federal Bank Ltd,

Pongumoodu Branch,

•  

 

2. The Chairman,

Federal Bank Ltd,

Head Office, Alwaye

 

(BY Adv.Sri.S.Reghu kumar & Adv.Sri.P.Babu)

ORDER

SRI.VIJU.V.R                    : MEMBER

      1. The complainant has presented this complaint before this Commission under section 12 of the Consumer Protection Act 1986 alleging that being a customer of the first opposite party he had given stop payment instructions on 15/5/1997 to first opposite party regarding his cheque No.296629 as it was lost. This factum of stop payment instruction was recorded in stop payment register and ledger of the bank and a signed copy of stop payment memo dated 15.05.1997 was given to the complainant by the Assistant Manager of the bank on 16.05.1997 in acknowledgment of receipt of stop payment instruction.  But on 19/3/1998 the complainant received an advocate notice which was sent by one Prasanth. The said notice intimated that the cheque was dishonoured due to insufficiency of funds. The complainant had been banking with Federal Bank, Pongumoodu Branch, Thiruvananthapuram. The act of opposite parties amounts to deficiency in service, for that effect the complainant had filed this complaint.

           2.     The opposite parties 1 & 2 entered appearance and filed version. The opposite parties 1 & 2 averred that the complaint is not maintainable as the complainant is barred by limitation. The complaint is liable to be dismissed as the opposite party is legally bound to look into the stop payment instruction only if there is sufficient fund in the account of the drawer the instrument to honour the cheque. If the cheque had been dishonoured for the reason of the stop payment instruction the complainant would not be in a position to stall the institution of the complaint under section 138 of the Negotiable Instruments Act. The dispute alleged in the complaint is regarding the failure of the then Manager of the opposite party bank to produce original of stop payment instruction memo before the Hon’ble Sub Court, Thiruvananthapuram in OS.No.197/1998, on being summoned by the court. The said act does not constitute a cause of action to institute a complaint before the Hon’ble Forum. Where summons is received by a witness from a court he goes there as a summoned witness and not as a consumer of the party to the suit. No service is rendered to any of the party to the suit but is only a discharge of legal duty bestowed on a witness by law. In the instant case there is no consideration between the parties with respect to the summoning of then manager as a witness and hence the complainant is not a consumer. The complainant never approached the first opposite party as he was well aware of the fact that there was insufficiency of funds in his account. It is further submitted that on getting summons from the Hon’ble Sub Court, Thiruvananthapuram the first opposite party produced the copy of stop memo register and was marked as Ext.X2 in OS.No.197/98. The request of the complainant the stop memo instruction was recorded in the stop memo register and the copy of the same was produced and marked as Ext.X2. However, the manager was summoned in the year 2005 was not working in the first opposite party branch at the relevant period and hence he was not in a position to identify the signature of Assistant Manager who had counter signed the copy of the stop payment instruction memo. In the said circumstance it is duty of the complainant/defendant in the suit, to summon the proper person to substantiate his case. However, the defendant deliberately did not summon the concerned person who had direct knowledge of the facts in issue. Further the allegation that the Hon’ble Sub Court passed decree against the defendant in the suit ie, the complainant in this complaint due to non production of the original of the stop payment instruction memo alone is absolutely incorrect. The Hon’ble Sub Court reached the conclusion solely based on the fact that the defendant failed to prove that there existed no legally enforcible debt between the plaintiff and the defendant. The complainant has filed this complaint on an experimental basis and there is no cause of action has arisen as stated in the complaint. Hence the complaint may be dismissed with costs.

3.       The evidence in this case consists of PW1 & Exts.P1 to P10 on the side of complainant (Exts.P5, P6 & P9 were marked subject to proof) and DW1 and Exts.D1 to D3 on the side of opposite parties.

Issues to be ascertained:

i.        Whether the complaint is barred by Limitation?

ii.       Whether there is deficiency in service from the side of opposite parties?

iii.      Whether the complainant is entitled to get the reliefs?

Issues (i) : 

     4.  The complainant had given Stop memo instruction to the first opposite party on 15/5/1997 & it was acknowledge by the first opposite party on 16/5/1997. The complainant received the advocate’s notice on 19/3/1998. So the complainant has came to know about the dishonor of the cheque was due to insufficiency of funds. So it can be seen that the first opposite party has not acted as per the instructions of complainant. The opposite parties has raised the contention that the complaint is barred by limitation since the case was not filed within 2 years from the date on which complaint received the advocate notice ie., the date on which cause of action has arisen.

           5.     The provisions of Sec.24A of the Consumer Protection Act,1986 were interpreted by  the Hon’ble Apex Court in State Bank Of India vs  B.S. Agriculture Industries 2009(3)CPR107(SC)  as:

“7. Section 24A of the Act, 1986 prescribes limitation period for admission of a complaint by the consumer fora thus:

"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.

(2) 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."

8. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, `shall not admit a complaint' occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside”.

The Hon'ble Supreme Court in State of Tripura & Ors. vs. Arabinda Chakraborty & Ors (2014) 6 SCC 460 has held that:

“13. It is a settled legal position that the period of limitation would commence from the date on which the cause of action takes place.”

   In Union of India and Another vs. British India Corporation Ltd. and Others, (2003) 9 SCC 50, the Hon’ble Supreme Court held that

 “7 the question of limitation was a mandate to the forum and, irrespective of the fact whether it was raised or not, the forum must consider and apply it”.

          In United India Insurance Company Ltd vs Small Tilda Riceland Pvt Ltd 2021(1) CPR 23 (NC) the National Commission has held that :

“It is a settle legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statue so prescribes. The court has no power to extend the period of limitation on equitable grounds.  A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim “dura lexsedlex” which means “the law is hard but it is the law”, stands attracted in such a situation. It has consistently been held that “inconvenience is not” a decisive factor to be considered while interpreting a statute”.  

        6.        The complainant has filed this complaint based on Ext P9, even though it was marked subject to proof, which was made to settle the dispute arised out of the dishonoured cheque. If any grievance has occurred to complaint due to opposite parties 1 & 2 the complainant has to file the complaint at the instance when he has got the knowledge about it. In this case the cause of action has arisen on 19.3.1998 the date on which the complaint has came to know about the act of opposite parties 1 & 2. The limitation, thus, began to run from March 19, 1998. The complaint ought to have been filed within two years there from, which in fact was not done as the complainant was filed much after i.e., on April 20, 2010. There was no impediment for the complaint to file a case before the District Commission, even though civil & criminal cases were pending against the complainant.

      7. So the complaint stands dismissed as time barred. The parties shall bear their own costs. Since the first issue is found against the complainant we are not going to the merit of the case.

         In the result, the complaint stands dismissed. There shall be no

order as to cost.

       A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

         Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this 27^th day of August, 2021.

                                                                                 Sd/-

                                                                       P.V.JAYARAJAN          : PRESIDENT

 

                                                                                      Sd/-

PREETHA G NAIR : MEMBER

 

                                                                                            Sd/-

VIJU.V.R     : MEMBER

 

 

 Be/

 

 

 

 

 

 

 

 

 

 

 

 

 

C.C.No.118/2010

APPENDIX

1. COMPLAINANT’S WITNESS
2.  

 

2. COMPLAINANT’S DOCUMENTS
3.  
4.  
5.  
6.  

& OS.283/04 dtd: 30.07.2005

1.  
2.  
3.  
4.  

dtd : .27.02.2009

1. 1.  
   2.  

OPPOSITE PARTY’S WITNESS

1.  

 

3. OPPOSITE PARTY’S DOCUMENTS
4.  

maintained in the Federal Bank, Pongumoodu for the

period 1996

1.  

maintained in the Federal Bank, Pongumoodu for the

period 1997

 

1.  

maintained in the Federal Bank, Pongumoodu for the

period 1998

 

4. COURT EXHIBITS   - NIL
   •  
5.  

 

 

 

 

 

 

 

 

 

 

 

 

BEFORE THE

 DISTRICT CONSUMER

DISPUTES REDRESSAL

COMMISSION VAZHUTHACADU

 THIRUVANANTHAPURAM

 

 

 

                                           CC.NO.118/2010

ORDER DATED :   27/08/2021