Karnataka

Gadag

CC/7/2014

Chief Executive Engineer, PAPSS Niyamith, - Complainant(s)

Versus

The Managing Director, K.C.C. Bank Limited, - Opp.Party(s)

R.V.Kumar

06 Aug 2016

ORDER

JUDGEMENT DELIVERED BY

SMT.C.H.SAMIUNNISA ABRAR, PRESIDENT:

The complainant has filed this Complaint against the Opposite Party (herein after referred in short as OP) u/s 12 of Consumer Protection Act, 1986 alleging deficiency in service against OP. 

 

2.    The brief fact of the case is that the Complainant holds a Cooperative Society in Hole Itagi Shirahatti Taluk and OP No.1 is a Cooperative Bank having a head Office at Dharwad District and holding  Branche’s at Gadag and Shirahatti. The Complainant use to fulfill the needs of the farmers like, seeds loan, fertilizers and crop loan through the Complainant Society.

 

3.      On 30.07.1979, the OP No.1 wrote a letter to the Complainant that under credit account No.67/7980 for supply the fertilizer to the farmers upto the credit limit of Rs.25,000/-. The Complainant had agreed to supply the seeds and fertilizers to the farmers under a credit for a period of one year. As per the agreement the Complainant had availed a fertilizer loan (L.O.C.) under credit No.67/7980 on 30.07.1970 bearing loan ledger No.2/2005 and the Complainant had supplied the fertilizers to the farmers. The same had been repaid to the OP No.3 which is a Branch of OP No.1. For which, the OP No.3 had furnished a passbook entries, the Complainant had said that he had repaid the total loan amount for which the OP had furnished balance ledger and the passbook showing LOC as nil on 08.08.1981. Even after the repayment of the LOC the Ops have debited an amount of Rs.1,22,443.40 paise from the Complainant’s Account alleging that the Ops have falsely stating as a balance in LOC created a false LOC account bearing No.3 and debited Rs.26,289.22 paise on 29.03.2010 and Rs.96,154.18 paise on 31.03.2010 from the Complainant’s account. Immediately the Complainant came to know the matter, he wrote a letter to the Ops on 29.04.2010 and informed that the LOC had been repaid and there is No dues against the LOC, the audit report from 1982 to 2010 had disclosed that there is no dues from the complainant. Taking this in consideration, the OP No.1 initiated an enquiry.

 

4.      The report of an enquiry submitted on 13.02.2010 by OP No.2 had clearly stated that LOC loan had been repaid in the year 1981. An amount of Rs.1,22,443.40 paise debited from the Complainant’s account by OP No.3 is unlawful and stated to refund the excess amount which had been debited from the Complainant account. Even though on 03.12.2010 the OP No.1 had written a letter to the Complainant stating that a due in LOC had been adjusted by debiting the amount from the Complainant’s account, the Complainant had requested the OP’s to refund the amount which had been debited from the Complainant’s account. But, the Ops failed to do so, on 23.02.2012 the Complainant issued a notice through his counsel to the OP but the OP No.1 has not replied for the same. Again, on 13.09.2013 the Complainant issued a notice to return the amount which had been debited by the Complainant’s account for which the OP had untenably replied by which the OP had committed deficiency in service.

The Complainant, Society passed a resolution and authorized its CAO (Chief Administrative Officer) to the represent the Court proceeding, to file a Suits to appoint an Advocate and other necessary works. The Complainant is a society the funds belongs to the farmers the OP NO.1 and 3 unlawfully debited the amount from which Complainant had faced a lot of problems and financial loss, hence Complainant had filed this Complaint praying to order the OP to repay the amount of Rs.1,22,443.40 paise along with the interest at the rate of 21% from 2010 and a compensation of Rs.50,000/- towards mental agony and Rs.10,000/- for litigation charges and the other relief  this Forum deems fit.   

 

5.      The predecessor on the seat registered the Complaint and notice was issued to OPs. The OP No.3 filed Objection and OP No.1 and 2 adopted the same objection. For that they had filed a Memo.

Brief facts of the Written Version of OPs:

The Ops have denied major contents of the Complaint made by the Complainant. The Ops have accepted the averments made in the Para No.1 of the Complaint except that the Complainant Institution is function under the control of KCC Bank, Dharwad and stated that the Complainant institution and OP Bank are an autonomous and independent institution, the Complainant Institution is merely a Member of the OP No.1’s Bank and also it is not functioning under the control of the Bank. It is a financing Bank the averments made in the Para NO.3 of the Complaint had partially accepted by the OP and denied that the Complainant had made the payment of LOC Manure Loan every month to OP No.3 to OP No.1. Further OP had denied that the Ops have shown the balance as NIL in Account on 08.08.1981. The OP No.3 had issued a balance letter and passbook for the payment of entire loan amount.

 

6.      Further, the Ops have denied that the sum of Rs.26,343.40 paise and Rs.25,343.40 paise have shown as a debit or balance on 18.06.1982 by creating LOC account No.3 of the Complainant. Further, Ops stated that it is false that Ops have debited a sum of Rs.26,289.22 paise and on 29.03.2010 and Rs.96,154.18 paise on 31.03.2010 totally sum of Rs.1,22,443.40 paise from the Complainant’s Account without notice. Further, OP stated that it is false that the OP No.2 in his report 13.02.2010 had admitted that the amount payable by the Complainant towards LOC’s credited in the year 1981. It is false that no amount is payable in March 2010. The Ops have informed the Complainant to repay the amount of RS.1,22,000.40 paise which had been recovered in March 2010.

 

7.      Further, the Ops states that under receipt of the letter dated: 31.12.2010 of OP NO.1, the Complainant had ought to file a Complaint during the month of December, 2012, the Complaint had filed on 29.01.2014  which is time barred as such, the Complainant is not maintainable under the ground of limitation and also stated that the Complainant had not filed a separate application for condonation of delay hence the Complaint is liable to be dismissed in lime-line.

 

8.      Further it is submitted that adjustment of outstanding amount against the fix deposit or any other deposit the OP No.1 had got general lien for the recovery of the amount due, since Ops are not have any legal obligation. Hence, the Complainant is not entitled for any relief as claim in the Complaint and hence Ops have prayed to dismiss the Complaint.        

 

9.      On the back ground of the above said pleadings, the Complainant himself examined before this Forum as CW-1 and produced 28 documents. On the other hand, OP No.3 had filed a Chief Affidavit and submits that he had sweared this affidavit on behalf of the OP No.1 and 2 and got marked EX. OP1 to EX. OP20.   

10.    On the basis of above said pleadings, oral and documentary evidence, the following points arises for adjudications are as follows:   

1.   2.	Whether the Ops prove that the Complaint is barred by limitation?   Whether the Complainant is entitled for any relief sought?
3.	What Order?

 

Our Answer to the above Points are:-

Point No.1 – Affirmative,

Point No.2 – Negative,

Point No.3 – As per the final order.

                

R E A S O N S

 11.  POINT NO.1 and 2:  Here, we proceed both the points together. On perusing of the pleadings evidence coupled with documents of respective parties on record. It is the case of the Complainant that the Ops have practiced a untrade practice.

 

   12.     The Complainant is a CAO of the Cooperative Society, the Ops are financial Institution whereas the Complainant Society is also member of OP NO.1’s bank.

 

  13.      The Complainant Society availed a manure loan from the Ops and supplied the manure, fertilizers to the farmers. As it the Complainant had availed a credit loan of Rs.25,000/- from OP No.1 on 30.07.1979 under credit NO.67/7980, further the Complainant stated that the LOC manure loan had regularly repaid to the OP No.1 through OP No.3 and the OP No.3 had entered in the passbook on 08.08.1981 and showed the balance as a NIL. Further, the OP alleges that again on 15.06.1982 the OP shows that there is outstanding balance of LOC account from the Complainant, other Ops have created a new account of LOC and account number had been numbered as 3 and shows the balance of Rs.26,343.40 paise and Rs.25,343.40 paise on the basis of this, the OP have debited Rs.26,289.22 paise on 29.03.2010 and Rs.96,154.18 paise on 31.03.2010. In total amount of RS.1,28,443.40 paise from the Complainant’s account.

 

   14.     The Complainant alleges that the total loan amount of LOC had been repaid, for which the OP No.3 had issued a passbook showing the balance towards the loan is NIL again the OP had debited Rs.1,22,443/- from the Complainant’s account.

 

    15.    The financial transaction between the Complainant and Ops are from the year 1982 to 2010 as per the Complaint. The excess amount debited from the Complainant’s account was in the year 2010. After a long period of two years i.e. 23.02.2012 Complainant issued a legal notice through his counsel to the Ops to refund the amount credited form the Complainant’s account again on 13.09.2012 the Complainant issued another notice to Ops through his counsel for which the Ops have replied that. The main controversial point of the case start here that the Complaint had been lodged before this Forum on 24.01.2014 and states that cause of action arises from 23.02.2012 and 13.09.2013. Here the Complainant  himself is not clear that actual cause of action raises from which date. On pursuance of the documents No.18 which had been produced by the Complainant it speaks that the Complainant had send a letter to OP No.3 and 29.04.2010 for which the OP had conducted an enquiry and submitted the report as the amount debited is correct and lawful. The documents produced before this Forum serially numbered as 20 and 21 i.e. produced by the Complainant states that, by which the Complainant came to know that the Ops have not ready to refund the amount as claim by the Complainant, immediately the Complainant society called a meeting on 25.01.2011 and passed a resolution to file a Complaint against the Ops in support of this Complainant himself produced the letter i.e. serially numbered as 22. But the Complainant failed to file the Complaint within limitation. While arguing the matter the Forum raise the question that when the cause of action arises?, the counsel of the Complainant answered that from the date of issuing the notice from the Complaint to the OP for which the OP have strongly objected and stated that the Complaint is barred by law of limitation and also OP had stated that the Complainant had not filed an application for condonation of delay merely sending on notice do not constitute a cause of action does not extend the period of limitation and also the sufficient cause of delay had not been shown and not filed any I.A. for condonation of delay. We rely upon the citation cited in CPJ January 2016 Part-I, Vol.I (Jansatta Sahkari Awar Samiti Ltd. V/s Kone Elevators India Pvt. Ltd., National C.D.R.C. (190), It reads as follows:

“Accrual of cause of action – Merely sending a notice does not constitute a cause of action nor does it extend period of limitation – complaint – time barred.

Consumer Protection Act, 1986 – Section 24 A, 21 () (i) – Limitation – Agreement executed to install lifts. Non-installation – Accrual of cause of action – cause of action arose when two letters sent by Opposite Party insisting on complainant to place purchase order for supply missing part from site – Complainant’s plea that cause of action arose when legal notice sent to Opposite Party cannot be accepted – Merely sending a notice does not constitute a cause of action nor does it extend period of limitation – As no application for condonation of delay has been filed there is no occasion to examine whether there was sufficient cause for delay or not – Complaint is time barred”

 

     Hence, the Complaint is barred by limitation. Hence, Complainant is not entitled for any relief. Hence, we answer the Point No.1 in affirmative and Point No.2 is negative.

 

16.   POINT NO.3:   For the reasons and discussion made above and finding on the above points, we proceed to pass a following:  

 

//ORDER//

1. This Complaint is dismissed.
2. Parties have to bear their own costs.
3. Send the copies of this order to the parties free of cost.

 (Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court 06^th day of August, 2016)

 

Member

Member

President