In brief Complainant’s Case is that Complainant has a saving account at HDFC Bank Ltd, Kapurbawadi Brach, Shop No. G-115, 116, 117, 118, High Street Cum Highland, Corporate Centre, P.S Kapurbawdi Junction, Thane- 400607, Maharashtra under Core Banking System (CBS) having with facility of CBS as well as Net Banking.
Complainant alleges that on 02.09.2019 he received three SMS regarding UPI transactions of Rs. 42,475/-, Rs. 50,000/- and Rs. 6,790/-, totaling amounting to Rs. 99,265/-. Then Complainant rushed to the concerned O.P. No. 1 Branch and intimated the entire facts. O.P. No. 1 advised Complainant to lodge specific complaint by supplying a proforma to the Complainant and accordingly Complainant lodged a complaint on the very same date.
Complainant further alleges that O.P. No. 1 tactfully bypassed the same day by day and did not take any step. It is absolutely a gross negligence on the part of O.P. No. 1 exhibiting deficiency in service.
Complainant also rushed to the local Police Station (New Town P.S) and intimated the entire facts by making a diary relating to the matter. Thereafter by mail O.P. No. 2 intimated Complainant that it is not their fault and also advised the Complainant to knock the door of the Appropriate Forum.
Thereafter Complainant lodged complaint against the O.Ps before the Grievance Cell of Reserve Bank of India (RBI), but no positive result came out till then.
Then Complainant further knocked the concerned RBI authority and though RBI authority assured Complainant, but no fruitful result came out finally.
Subsequently, Complainant lodged a complaint to the inspector in charge, Cyber Crime Police Station under Bidhannagar Police Commissionerate and forwarded a copy of complaint to the Police Commissioner, Bidhannagar Police Commissionerate, but no positive result came out.
Complainant also states that previously Complainant filed a complaint case no. CC/124/2020 before this Commission (the then Forum), but same was disposed off with a liberty to the Complainant to withdraw the said copy the Complaint Case no. CC/124/2020 due to want of jurisdiction and this Commission (formerly Forum) gave liberty to file complaint to resolve his dispute before Appropriate Forum/ Court whatsoever. But in present scenario after amendment of C.P. Act, it is mentioned in Section 34 (2) (d) of C.P Act, 2019 that where the Complainant resides and personally works for gain in such place Complainant can file complaint, so, complainant after elapse of long time and also after battled with pandemic situation filed the instant case. Complainant further states that he is the Consumer to the O.Ps who have highly acted unlawful, illegal and arbitrary act. Accordingly, Complainant has prayed for direction upon O.Ps to refund of money of Rs. 99,265/- along with compensation to the tune of Rs. 2,50,000/- towards mental agony and harassment and also has prayed for direction upon O.Ps to pay Rs. 1,50,000/- to the Complainant as deficiency in service and litigation cost.
O.P. No. 1 has contested the case by filing WV denying material allegations raised by the Complainant. It is specifically stated by O.P. No. 1 that vide order dated 25.06.2020 in connection with CC/124/2020 this Commission (formerly Forum) on the point of admissibility of Complainant’s allegation on the point of cause of action looked into already by this Commission (formerly Forum) observing that said complaint is not maintainable on the point of jurisdiction and accordingly dismissed the case giving liberty to the Complainant to file Complaint to resolve his dispute before the Appropriate Forum/Court/Commission, if not barred otherwise. However, Complainant instead of complying with the order dated 25.06.2020 of this Commission (formerly Forum) in connection with CC/124/2020, Complainant out of his own volition again came up before this Commission and as such the action of the Complainant shows disagreement with the directions of order dated 25.06.2020 of this Commission (formerly Forum) in connection with CC/124/2020.
O.P. No. 1 further states that O.P. No. 1 is not at all a necessary party. It is specifically highlighted by O.P. No. 1 that there is no negligence can be attributed upon the bank as because it is carried out without any manual role of the officials of bank and the process is controlled by the use of encryption technology which is such that it is not accessible to anyone including system administration. The alleged transaction was carried out by the Complainant electronically using UPI platform without any manual role of bank. UPI payment platform works instantly in transferring funds between two bank Accounts on a mobile platform by MPIN which is privy to the Account Holder only. The alleged transaction was processed electronically without any manual role of bank and or its officials inputting incorrect details.
O.P. No. 1 also states that Complainant has no justifiable right to initiate case against O.P. No. 1 and 2.
Finally, O.P. No. 1 has prays for dismissal of the case with exemplary costs.
It may be noted that though O.P. No. 1 filed WV, but from the contents of WV of O.P. No. 1 it is crystal clear that O.P. No. 1 made highlighting his case/defence involving O.P. No. 2 and in common O.P. No. 1 has clearly stated that Complainant has no justifiable right to initiate case against O.P. No. 1 and O.P. No. 2. So, it may be presumed that infact, O.P. No. 1 made its version defending him (O.P. No. 1) and also O.P. No. 2.
Now, further it may be noted that in this case apart from evidence on affidavit introduced by the Complainant, O.P. No. 1 and O.P. No. 2 filed evidence on affidavit. Moreover, O.P. No. 1 and O.P. No. 2 against the evidence of Complainant filed questionnaire separately. It is needless to mention that Complainant also filed questionnaire against the evidence of the O.Ps.
Moreover, apart from filing BNA by the Complainant in connection with argument, one BNA has also been filed on behalf of the O.P. No. 1, O.P. No. 2 and O.P. No. 3, but facts remain that in this case there are only existence of O.P. No. 1 and O.P. No. 2, so, this Commission is ignoring the words mentioning “O.P. No. 3” in the concerned BNA.
Points for Decision
- Whether the instant case is maintainable according to Law?
- Whether the Complainant is the Consumer to the O.Ps?
- Whether this Commission has territorial/ pecuniary jurisdiction to entertain the try this Case?
- Whether there is any deficiency in service on the part of O.Ps?
- Is the Complainant entitled to get reliefs as prayed for?
Decision with reasons
- It is pertinent to mention that this Commission (formerly Forum) vide order dated 25.06.2020 in connection with CC/124/2020 has clearly observed “……………..As this complaint is not maintainable the Complainant is at liberty to withdraw the copy of the complaint and other related documents as filed by him at the time of filing of this complaint from the Office of this Ld. Forum and in this respect the Complainant shall submit separate application to get return of the copy of the documents. Upon receipt of the said application the concerned Authority of this Ld. Forum is directed to take necessary steps forthwith so that the Complainant can get return of the copy of the complaint and other related documents.
Be it mentioned that the Complainant is at liberty to file complaint to resolve his dispute before the appropriate Forum/Court/Commission, if not barred otherwise. …………..”
Therefore, it is crystal clear that this Commission (formerly Forum) observed that the complaint relating to CC/124/2020 is not maintainable giving liberty to the Complainant to file the complaint to resolve his dispute before the Appropriate Forum/Court/Commission, if not barred otherwise.
We are seeing that against said order dated 25.06.2020 of this Commission (formerly Forum) relating to CC/124/2020 Complainant neither preferred any Appeal/Revision before any Higher Forum nor filed any complaint as per direction of this Commission (formerly Forum) already mentioned hereinabove before any Forum/Court/Commission.
It may also be noted that Complainant rather preferred to file the instant case being CC/206/2021 before this Commission on 07.09.2021.
From the contents of present complaint it is clear that on 02.09.2019 Complainant received the SMS in question relating to alleged transaction and in paragraph no. 10 of the present complaint Complainant specifically stated that the cause of action arose on 02.09.2019. Now, the period from 02.09.2019 to 07.09.2021 is covering a period more than two years and in paragraph no. 8 of the present complaint the Complainant very much tried to highlight that after elapse of long time and also after battled with pandemic situation Complainant instituted the present case as per the C.P. Act, 2019.
So, it is clear that exceeding the specified period for filing the complaint i.e. after two years Complainant has instituted the present case.
It will not be out of place to mention that the order of this Commission (formerly Forum) was passed on 26.06.2020 relating to CC/124/2020 and since then inspite of getting order of liberty to file complaint before any Appropriate Forum/Court/Commission, Complainant did not prefer to file any complaint before any such Forum/Court/Commission.
It is also to be noted that Complainant had been given liberty to file complaint to resolve his dispute before the Appropriate Forum/Court/Commission, if not barred otherwise. Now, the period of limitation in filing the present case has already crossed by the Complainant. So, it is the absolute folly on the part of Complainant to sit idle during the entire period of limitation. Thus, it can safely be said that for his own fault, Complainant has crossed the period of limitation in filing the present case and as such the case becomes non-maintainable so far its filing being not within the prescribed period of limitation.
Accordingly, when case becomes non-maintainable in view of the foregoing discussion made hereinabove, accordingly further discussion on other points becomes redundant.
In that view of the matter Complainant’s case fails.
Hence, it is,
Ordered
that the instant case being no. CC 206/2021 be and same is dismissed on contest against O.Ps without cost.
Let plain copy of this order be supplied to the parties free of cost.
Dictated and corrected by
[HON'BLE MR. Shri Sankar Kumar Ghosh]
PRESIDENT
