This consumer complaint has been filed by the complainants Telangana State Minorities Finance Corporation & another against the opposite parties Vijaya Bank and others.

2.      Brief facts of the case are that the amount covered in the present case pertains to the scholarships & fees reimbursement to the students belonging to the minority community which include Muslims, Christians, Sikhs, Jains, Parsis & Buddhists & such other community as may be notified by the Government from time to time as a Minority Community. Complainant had deposited Rs. 78.01 crores for the said scholarships & fee reimbursement with 3 branches of Vijaya bank (OP), which are as under:

3.      On 8.10.2012, Complainant came to know that Rs.59.01 Crores was withdrawn without their consent. On enquiry with the bank, OP told that a sum of Rs. 59.01 Crores was withdrawn through 247 cheques in the name of 16 Organizations through current account No. 4003003011000242 maintained in the name of the A.P. State Minorities finance Corporation Ltd. & operated by the Accounts officer. Complaint was lodged by Vice Chairman & Managing Director of A.P. State Minorities Finance Corporation Ltd. with addl. Director General of Police, C.I.D., Hyderabad vide letter dated 9.10.2012. During the investigation the officer of Vijaya bank confessed the offence. After investigation, it was also concluded that the amount was withdrawn by creating fake accounts with the help of officials. Out of 78.01crores only 19crores were recovered. The legal notice dated 26.2.2013 was issued to OP calling them to pay the principal amount of Rs. 59.01 Crores & damages of Rs. 100 Crores along with interest of 24% p.a. Further, a Civil Suit OS. No. 188 of 2015 was filed by the complainant in the court of the Chief Judge, City civil court, Hyderabad for recovery of the principal amount of Rs.59.01 Crores along with interest total amounting to Rs.83.58 Crores with future interest & costs. Now, complainant has filed this complaint as there was deficiency in service by OP bank which caused heavy loss to the Complainant Corporation and resulted in erosion of trust of the public in banking system as well as also affected the image of the corporation in the public. Complainant prays to direct OP to pay 100 crores towards deficiency in service & interest @ 24% p.a.

4.      Heard the learned counsel for the complainants at the admission stage.  Learned counsel for the complainants stated that the amount relating to scholarships to be given to the students of the minority communities amounting to Rs.78.01 crores was deposited with the opposite party bank with different branches.  On enquiry with the bank, OP informed that a sum of Rs. 59.01 Crores was withdrawn through 247 cheques in the name of 16 Organizations through current account No. 4003003011000242 maintained in the name of the A.P. State Minorities Finance Corporation Ltd. & operated by the Accounts officer.  Accordingly, the complaint was filed also with CID department of the State Police.  On enquiry by CID, it was found that the amount was withdrawn by creating fake accounts with the help of officials and out of Rs.78.01 crores only 19 crores was recovered and therefore, legal notice dated 26.02.2013 was given to the bank for Rs.59.01 crores.    The complainants also filed a civil suit OS no.188 of 2015 for recovery of the principal amount of Rs.59.01crores alongwith interest and total amounting to Rs.83.58 crores.

5.      It was argued by the learned counsel that civil suit is only for the recovery of the principal amount and interest from the opposite party. However, civil court will not grant any compensation for deficiency in service on the part of the bank, therefore, the present complaint has been filed with the following prayers:-

“.It is, therefore, most respectfully prayed that the Hon’ble National Commission may be pleased to grant the following reliefs to the complainants, directing the opposite parties to pay:-

1. Rs.100 crores towards damages for the deficiency in service.

2. Interest at 24% per annum with monthly rests from the date of deposit of the amounts till the date of realization of damages.

3. Costs.

4. and pass such other further order or orders as may deem fit and proper in the circumstances of the case.”

6.      It was further argued by the learned counsel that the issue of deficiency in service cannot be adjudicated by the civil court and therefore, the complaint has been filed with this Commission.  It has been further stated that the complaint is maintainable before this Commission. Learned counsel stated that under Section 14(1)(d) of the Consumer Protection Act, 1986, the consumer forum has the power to award compensation for the loss and injury suffered by the complainant due to negligence of the opposite party.  In the present case also, the complainants have suffered loss of interest as well as injury to its reputation due to the negligence on the part of the opposite party bank. A huge amount of Rs.59.01 cores has been misappropriated by wrong means and the opposite party bank has allowed this misappropriation. The banks are required to honour the cheques only when the cheques are signed by the authorized persons and if any cheque with fraudulent signature is presented to the bank, the bank is duty bound to dishonour the same. 

7.      I have carefully considered the arguments advanced by the learned counsel for the complainants and examined the record.  First of all, it is seen that the complaint is highly barred by limitation.  The complainants got the information about the misappropriation of fund on 08.10.2012 and therefore, first cause of action arose on this date. The complainants also issued legal notice to the opposite parties on 26.02.2013.  Therefore, if there was no reply from the opposite parties, the complainants should have filed the complaint in the year 2013 itself or if some reply was received and complainants were not satisfied, they should have filed complaint within two years of this reply.  Thus, the complaint should have been filed in the year 2015 if this cause of action is taken into consideration. The complainants also filed a civil suit in the year 2015 for recovery of the amount from the opposite parties.  Even if the same date is taken as the date for cause of action, the complaint should have been filed before the end of 2017.  The complaint has been filed on 20.12.2018.  Thus, from all considerations, the complaint is barred by limitation.  This issue is required to be seen as the first issue as mandated by the Hon’ble Supreme Court in  State Bank of India Vs. M/s. B.S. Agricultural Industries (I) AIR 2009 SC 2210 wherein the following has been held:

 “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”.

8.      In the present case, neither any application for condonation of delay has been filed for condoning the huge delay nor, the learned counsel mentioned any reason for this delay during his arguments.  Thus, this Commission cannot even condone this huge delay as held by the Hon’ble Supreme Court in the matter of V N Shrikhande (Dr) vs Anita Sena Fernandes (2011) – 1 Supreme Court Case 53 decided on 20.10.2010 as follows:

   “15.          Section 24A(1) contains a negative legislative mandate against admission of a complaint which has been filed after 2 years from the date of accrual of cause of action. In other words, the consumer forums do not have the jurisdiction to entertain a complaint if the same is not filed within 2 years from the date on which the cause of action has arisen. This power is required to be exercised after giving opportunity of hearing to the complainant, who can seek condonation of delay under Section 24A(2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under Section 24A(1). If the complaint is per se barred by time and the complainant does not seek condonation of delay under Section 24A(2), the consumer forums will have no option but to dismiss the same. Reference in this connection can usefully be made to the recent judgments in State Bank of India v. B.S. Agricultural Industries (I) (2009) 5 SCC 121 and Kandimalla Raghavaiah and Company v. National Insurance Company and another (2009) 7 SCC 768.”

9.      The complainants have already filed a civil suit OS No. 188 of 2015 for recovery of misappropriated amount of Rs.59.01 crores. Section 3 of the Consumer Protection Act 1986, though states that remedy, under Consumer Protection Act, 1986 is an additional remedy, a party cannot seek relief in two courts simultaneously. It is true that the complainant has not filed this complaint for seeking payment of Rs.59.01 crores, which is misappropriated amount and the complaint has only been filed for deficiency in service.  The deficiency in service is also not proved as the civil suit is still pending in the civil court and the criminal case is also pending before the competent court.  No final decision has been taken in any of these cases, therefore, the deficiency in service cannot be taken to be proved.  This Commission cannot examine the deficiency in service separately independent of examining the payment made through forged accounts.  The same is being examined by the civil court in the civil suit filed by the complainant.  Until the deficiency is proved by a competent court, there is no question of any compensation to be given to the complainant.  As per Section 14(1)(d) of the Consumer Protection Act, 1986, compensation is to be awarded for any injury or loss suffered by the complainant due to negligence of the opposite party. Section 14(1)(d) of the Consumer Protection Act, 1986 reads as under:-

14.  Finding of the District Forum- (1) If, after the proceeding conducted under section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to [do] one or more of the following things, namely:-

(a) ………….

(b) ……………

(c) ……………

(d) “to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party”

10.    The negligence is being examined by the civil court and until the negligence is proved there should not be any question of compensation for negligence.  Moreover, the negligence or deficiency in service is to be proved as per the procedure given in Section 13 of the Consumer Protection Act, 1986 and then only the compensation will be awarded by the Consumer Forum.  As this Commission is not to examine the matter for refund of the misappropriated amount, as the same is being examined by the civil court, no compensation can be granted under Section 14(1)(d) of the Consumer Protection Act, 1986.

11.    Moreover, a plaintiff is required to put all his claims in the civil suit as per Order II Rule 2 of the civil Procedure Code which reads as under:-

2.(1) Suit to include the whole claim –(1)  Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3)  Omission to sue for one of several reliefs.- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.”

12.    Thus, based on the above provision, a separate complaint on the same cause of action cannot be permitted and his claims raised in the present complaint would be treated as waived off by the plaintiff in the civil suit.  As per Section 3 of the Consumer Protection Act, 1986, the provisions of the Consumer Protection Act cannot be in derogation of any other law for the time being in force.  As CPC does not allow splitting of claims under Order II Rule 2, this provision cannot be derogated by filing a part complaint/claim under the Consumer Protection Act, 1986.

13.    The complainants have already prayed for interest on the amount to be recovered from the opposite parties under civil suit.  Interest is also in the form of compensation as held by the Hon’ble Supreme Court in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65 and therefore, even compensation part has been prayed in the civil suit.  Thus, a separate complaint cannot be filed for compensation on the same cause of action.

14.    Based on the foregoing discussion, the consumer complaint No.2770 of 2018 is dismissed in limine as hopelessly barred by limitation and not being maintainable before a consumer forum.