PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

Appellant has filed this appeal against the order dated 23.07.2009 passed by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, ‘the State Commission’) in Complaint No. 103/2009 –  Rajinder Jassal Vs. Union Bank of India & Ors. by which, complaint was dismissed at initial stage as barred by limitation.

2.      Brief facts of the case are that complainant/appellant Proprietor of Jassal Exports was running export business and having Bank account with OP No. 3/Respondent No. 3.  Complainant received cheque of $33,000/- dated 13.5.2004 and deposited it with OP No. 3 on 19.5.2004, which was cleared on 19.6.2004 and amount was credited in his account.  After 2½ years,  OP intimated complainant that aforesaid cheque of $33,000/- returned back as unpaid and deducted a sum of Rs.2,21,574/- from the account of complainant and asked complainant to arrange balance Rs.13,10,000/-.  It was further alleged that complainant received another cheque for $54,800 dated 10.8.2004 from Nigeria against export order which was deposited in complainant’s account with OP No. 3 and it was cleared on 2.9.2004.  By letter dated 31.3.2007, OP informed complainant that amount of fraudulent cheque of $ 33,000/- has been deducted from complainant’s account and further deducted illegally Rs. 2,12,515/- towards interest and Rs.32,000/- towards court fees and legal expenses.  Complainant requested OP to rectify aforesaid mistakes by letters dated 22.3.2007 and 5.3.2008, but OP by letter dated 17.3.2008 refused to rectify mistakes.  It was further submitted that OP filed suit for recovery of Rs.13,83,675/- in DRT-III at Mumbai and after filing the suit deducted aforesaid amount from complainant’s account and withdrew suit.  Alleging deficiency on the part of OP, complainant filed complaint before State Commission with a prayer to direct OP to credit amount of cheques of $ 33,000/- and $54,800/- and to refund the illegal deductions made from his account and further prayed  for interest   and compensation.  Complainant also filed application for condonation of delay, if any, along with complaint.  Learned State Commission vide impugned order dismissed complaint as barred by limitation against which, this appeal has been filed.

3.      Heard learned Counsel for the parties finally in appeal as well on M.A. No. 1327 of 2010 for recalling the order imposing cost.

4.      Learned Counsel for the appellant submitted that complaint was  within limitation from the date of order of DRT and on the safer side, complainant also moved an application for condonation of delay; even then, learned State Commission committed error in dismissing complaint as barred by limitation; hence, appeal be allowed and impugned order be set aside.  On the other hand, learned Counsel for the  respondent submitted that apparently complaint is time barred and order passed by learned State Commission is in accordance with law; hence, appeal be dismissed.

5.      Perusal of record clearly reveals that OP vide letter dated 31.3.2007 intimated to the complainant that amount pertaining to fraudulent foreign cheque for $ 33,000/- has been deducted from his cheque of $ 54,800/- and in such circumstances, complaint could have been filed only after this intimation.  Complaint was filed on 27.5.2009 and in such circumstances, there may be delay of less than 2 months in filing complaint and learned State Commission erroneously observed that complaint was not entertainable after 4 years of the happenings.  Not only this, OP had already initiated action before the DRT for recovery of amount of alleged fraudulent cheque in 2005, but during the pendency of proceedings adjusted aforesaid amount from complainant’s account and withdrew application on 5.9.2008 and learned DRT observed that both the parties are at liberty to adjudicate their claim in separate proceedings.  It is disputable question whether limitation can be claimed from 5.9.2008, or not, but apparently, cause of action arose on 31.3.2007 when OP deducted amount of alleged fraudulent cheque from the account of the complainant. In such circumstances, question of limitation is a mixed question of law and facts and learned State Commission ought not to have dismissed complaint as barred by limitation at the initial stage without recording evidence and impugned order is liable to set aside.

6.      Learned Counsel for the respondent submitted that as transaction was of commercial nature, complaint was not maintainable before State Commission.  At this stage, we cannot appreciate this argument because respondent is free to take all pleas before State Commission in his written statement and learned State Commission will decide all the pleas raised by the parties.

7.      As far M.A. No. 1327 of 2010 is concerned, learned Counsel for the respondent submitted that order dated 13.12.2010 imposing cost of Rs.10,000/- may be recalled as train reached late and Counsel for the appellant could not appear before the State Commission in time.  Learned Counsel for the respondent has placed railway ticket in support of his contention which reveals that Counsel for the respondent came to Delhi on that date, but as train reached late, he could not appear before State Commission in time and in such circumstances, we deem it appropriate to recall the order dated 13.12.2010 passed by this Commission.

8.      Consequently, order dated 13.12.2010 passed by this Commission in this appeal is recalled.  Appeal filed by the appellant is allowed and impugned order dated 23.7.2009 passed by learned State Commission in Consumer Complaint No. 103/2009 –  Rajinder Jassal Vs. Union Bank of India & Ors. is set aside and matter is remanded back to learned State Commission to decide question of limitation after taking evidence of the parties together with other issues.

9.      Parties are directed to appear before the learned State Commission on 8.9.2014.