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Judgment
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This revision petition has been filed under section 21(b) of the Act 1986 in challenge to the Order dated 20.05.2011 of the State Commission in appeal no. 110 of 2011 arising out of the Order dated 11.04.2011 of the District Commission in complaint no. 245 of 2010.
We have heard the learned counsel for the petitioner (who was the opposite party no. 4 before the District Commission) and perused the record.
The petition has been filed with a delay of 659 days i.e. 01 year 09 months and 20 days.
The factual matrix of the case has been succinctly captured by the District Commission in para 2 of its Order of 11.04.2011. The same is reproduced below:
In brief, the case of the complainants is that complainant No.1 after availing VRS from Food Corporation of India in the year 2004, on being allured by OPs No.2 and 4, paid his retiremental money to OPs No.2 and 4 for onward depositing with State Bank of Patiala in Fixed Deposits but instead of depositing the same with State Bank of Patiala, OPs No.2 and 4 deposited the amount of the complainants with OP No.1 – State Bank of Patiala Employees Cooperative U.S.E. Thrift and Credit Society Ltd. (hereinafter to be referred as the Society) C/o State Bank of Patiala in terms of Fixed Deposits as under: -
Sr. FDR No. In the Name of: Amount Maturity Date of Maturity
No. Deposited Value (Rs.)
(Rs.)
7517 Sant Lal 24,420 26,862 11-7-2008
7519 Monica Garg 48,840 53,724 11-7-2008
7520 Monica Garg 48,840 53,724 11-7-2008
7522 Deepak Garg 42,735 47,008 11-7-2008
7522 Sant Lal 42,375 46,612 11-7-2008
Total Amount: 2,07,210 2,27,930
Thus, the complainant invested a total sum of Rs.2,07,210/- on 28.3.2008 (value dated 11.7.2007) with the OPs in terms of FDRs, as shown in the above table, with common date of maturity as 11.7.2008. It is alleged that on the maturity date of the FDRS in the year 2008, when the complainants approached the OPs for releasing the amount of the said FDRS, it was to their utter surprise that OPs refused to pay the matured amount of the FDRs as OP No.1 was running short of funds. As per the complainants, the said amount of Rs.2,07,210/- was given to OPs No.2 and 4 for depositing with State Bank of Patiala and instead the same was deposited with OP No.1. Thus, it is alleged by the complainants that non refund of their maturity amount on the date of maturity i.e. 11.7.2008 amounts to deficiency in service and unfair trade practice on the part of OPs. In these circumstances, the present complaint has been filed seeking the reliefs mentioned above.
The District Commission allowed the complaint and made its award as contained in para 6 of its Order: The same is reproduced below:
In view of the above findings, this complaint is allowed and the OPs are jointly and severally directed to pay to the respective complainants in whose names the FDRs were originally issued by the OPs, the following amounts: -
(i) Rs.2,27,930/- (Sh. Sant Lal – Rs.73474/-, Ms. Monica Garg - Rs.1,07,448/-, Sh. Deepak Garg -Rs.47,008/-) being the total maturity amount of the five FDRs of the complainants, as shown in tabular chart in Para No.2 of the order.
(ii) Rs.50,000/- as compensation for mental agony and harassment.
(iii) Rs.7,000/- as costs of litigation.
The opposite parties appealed before the State Commission. The State Commission dismissed the appeal with cost.
Extracts of the appraisal made by the State Commission as contained in paras 9 to 15 of its Order are reproduced below:
After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellants, and on going through the record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage. Deposit of amounts, in question, by the complainants/respondents, at the instance of OP NOs.2 & 4, President and Secretary of OP NO.1 is not in dispute. Annexure 1 to 5 are the photocopies of various FDRs, issued in the name of the complainants, and the maturity date of all the FDRs is mentioned as 11.7.2008. These FDRs were issued by OP NO.1 Society on 28.3.2008(value date 11.7.2007). These were duly signed by the President, Secretary and the Treasurer of the said Society. It was the duty of the OPs to pay the amount of FDRs, to the complainants, when the same matured, alongwith interest, but they failed to do so. Under these circumstances, the District Forum, was right, in holding that the OPs were deficient, in rendering service to the complainant.
Coming to the jurisdiction of the District Forum, it may be stated here, that Sections 55 and 82 of the Punjab Cooperative Societies Act, did not bar the remedy of filing a complaint, under the Act, before the Consumer Fora. Section -3 of the Act clearly lays down that the remedy under the same is in addition to and not in derogation of the remedies, available under other Acts. In Smt. Kalawati & Ors. Vs. Unitedvaish Co-operative Thrift & Credit Society Ltd.-I (2002) CPJ 71 (NC), Nawal Kishore Kashyap Vs. Bihar State Housing Co-operative Federation Ltd. & Ors.-II (2009) CPJ 47 (NC) and KEB Employees Co-operative Society Ltd. Vs. V. Munivenkatappa-2006(3) CLT 302 (NC) such a question was raised, but it was repelled, by the Hon’ble National Commission holding that even where there is a provision for arbitration, where the dispute between the parties is to be decided, by conciliation or by some other authority, the Consumer Fora would still have the jurisdiction to decide the dispute, because the remedy, under Section 3 of the Act, has been afforded in addition to any other remedy, available to the aggrieved party. In Secretary, Thirumurugan Co-operative Agricultural Credit Society Vs. M. Lalitha (dead) through L.Rs & Ors.-I (2004) CPJ 1 (SC), it was held that the remedy under the 1986 Act, is in addition to and not in derogation of other remedies available. In Secretary, Thirumurugan Co-operative Agricultural Credit Society Vs. M. Lalitha (dead) through L.Rs & Ors’s case(supra) t here was a dispute, between the members and the management of a Cooperative Society, which under Section 90 of the Tamilnadu Cooperative Societies Act, was to be decided ,by the Registrar. In that case too, a similar argument, was raised, but was not accepted. Under these circumstances, the ratio of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case, and as such, the complaint was maintainable before the District Forum.
The mere fact, that earlier a complaint was filed by the complainants before the Lok Adalat, and the same was dismissed, on the ground, that the disputed questions of law and fact were involved, and it would be appropriate if the complainants approached the Civil Court, for the desired relief , would not oust the jurisdiction of the Consumer Fora, in view of Section 3 of the Act. It was a simple case of handing over the money by the complainants, on the allurement of complainants for deposit of the same in the State Bank of Patiala, but, on the other hand, in violation of such instructions, given by the complainants, they ( OP Nos.2 & 4) deposited the same with OP No.1 Society. The OPs were, therefore, required to pay the amount when the FDRs matured, but they refused to do so. No complicated question of law, and fact, was involved, in this case, which required recording of exhaustive evidence critical analysis thereof. Under these circumstances, order dated 11.3.2010 passed by the Lok Adalat, did not debar the complainants from filing a Consumer Complaint before the District Forum. The submission of the Counsel for the appellants, in this regard, being without substance, merits dismissal and the same stands rejected.
Deposit of retrial benefits, in the FDRs, by the complainant to earn interest thereon, for supplementing their income, for livelihood, did not constitute the activity of money lending, at a large scale, for earning profits. This activity of the complainants, therefore, is not of commercial nature. The OPs were thus, the service providers and the complainants were the consumers. The submission of the Counsel for the appellants is, thus, rejected.
If OP NO.1 has no money, at present , that is not the headache of the complainants. If the loans were advanced by OP No.1, to fictitious loanees, and the recovery of the amount, running in crores of rupees, has not been effected, that cannot make the complainants/respondents remediless. Before advancing loan, out of the amount, deposited by the depositors, the OPs were required to properly verify the financial condition and the genuineness of the loanees. If the loanees were financial unsound or fictitious, and the loan was advanced, without obtaining any sound security/surety of any movable or immovable property, by the OPs, then the complainants/respondents cannot be blamed. At this stage, it cannot be ordered that the payment be made to the complainants/respondents seniority-wise. The amount was deposited in the year 2007. Now it is 2011. If the recovery is not made by the OPs/appellants from the loanees for years together that cannot deprive the complainants of their hard-earned money indefinitely. Under these circumstances, the submission of the Counsel for the appellants, in this regard, being without substance, stands rejected.
The impugned order of the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission.
For the reasons recorded above, the appeal, being without merit, must fail, and the same is dismissed with costs, quantified at Rs.3000/-.
The award made by the District Commission, as upheld and sustained by the State Commission, was joint and several against all the opposite parties (inclusive of the opposite party no. 4 i.e. the petitioner herein).
It has been conclusively determined in the concurrent findings of the two fora below that on 11.07.2007 the complainant no. 1 (a retired person) deposited a total amount of Rs. 2,07,210/-with the State Bank of Patiala Employees Cooperative U.S.E. Thrift and Credit Society Ltd.; the society issued 05 fixed deposit receipts in the names of the complainant no. 1, the complainant no. 2 (daughter of complainant no. 1) and the complainant no. 3 (son of complainant no. 1); however, on their maturity on 11.07.2008, the maturity value of the fixed deposits totaling Rs. 2,27,930/- was not paid back to him.
Learned counsel for the petitioner attempts to enter into the merits of the case in order to assail the impugned Order of the State Commission. But as the petition has been filed much beyond the expiry of the limitation period, the application for condonation of delay is being taken up first and learned counsel has been heard apropos the delay.
The principal reason for delay, as stated in para 3 of the said application, is reproduced below:
That, in fact, the petitioner came to know about the aforesaid orders passed by the learned District Forum as well as by the learned State Commission, on 25.4.2013, when he received summons in Execution Application through the Branch head of his employer i.e. State Bank of Patiala, Sector 17-C, Chandigarh, at the present place of his posting i.e. State Bank of Patiala, Sector 9, Ambala City (Haryana).
The principal reason for the huge delay of 659 days is that the petitioner was not aware of the Orders passed by the District Commission and the State Commission and he came to know about the Orders of the two fora only on 25.04.2013 when he received summons in execution proceedings.
The petitioner was the opposite party no. 4 before the District Commission. The District Commission has categorically mentioned in para 3 of its Order that “Initially, Sh. Gunjan Mehta, Advocate, appeared, on behalf of OP Nos.1 and 2, whereas, Sh. A. N. Pahwa OP No.4 appeared in person. They did not appear later on, nor any authorized agent appeared on their behalf. - - - ”. It, thus, belies logic and common sense that when the petitioner was present before the District Commission (and then chose to absent himself), he is now taking a plea that he was not aware of the District Commission’s Order.
In the appeal filed before the State Commission, the petitioner was himself appellant no. 4. All the four appellants were represented by an advocate. It again belies logic and militates against reason that when the petitioner himself was one of the appellants, he is now taking such incongruous plea that he was not aware of the State Commission’s Order.
Such kind of explanation, on the very face of it, is unpalatable and beyond comprehension. The petitioner had presented himself in person before the District Commission, he was aware of the complaint instituted against him, the petitioner was the appellant no. 4 before the State Commission, that is to say, it was his own appeal, therefore a plea that he was not aware of the Orders of the District Commission and of the State Commission is fallacious and self-defeating.
Ordinarily we lean liberally in favour of the petitioner for the purpose of condoning the delay and prefer to decide the lis on merits rather than rejecting the same at the threshold stage but even a liberal exercise of such kind will require at least some semblance of a plausible explanation being proffered to bridge up the colossal gap after which the revision has been filed. Here, but, we find that the principal ground being taken is a barefaced untruth, professed brazenly. It concomitantly bears emphasis that the complainants have favourable Orders of the two fora below in their hand. The right which has accrued to them cannot be made a victim of inordinate efflux of time.
The powers which have been conferred on us to condone the delay have got to be exercised judiciously and not arbitrarily. We cannot afford to act at will either whimsically or capriciously. Certainly the discretion to be exercised in such matters is not an exercise of some kind of royal privilege or prerogative bestowed upon us, it is essentially a legal exercise and has to be lawfully harnessed with judicious discipline. The object and purpose behind the law of limitation cannot be either swung into oblivion or be ignored with apathy nor can the same be blissfully ignored. A complete disregard of the law of limitation will eventually frustrate and defeat the salutary purpose which inspires the enactment wherever it has been provided.
In the present matter before us we see not even a semblance of explanation which may constitute a good ground to condone the delay. The onus of the petitioner to show us the factual basis from which may emanate such ground(s) remains undischarged.
Learned counsel for the petitioner agrees and has not disputed that the petitioner presented himself before the District Commission.
But in respect of the appeal before the State Commission he submits that the petitioner had not filed the appeal and his name was included as appellant no. 4 by the other appellants without his knowledge. But there is not even an iota of evidence or fact or circumstance which may corroborate or substantiate such submission. Looking it at another way, even if, for the sake of argument, one contends that the petitioner had not filed the appeal, then it clearly flows and connotes that the petitioner was not aggrieved with the District Commission’s Order and as such the same became binding on him. Thus, looking at it either way, the argument caves in and fails.
We thus find no worth in the application for condonation of delay. Sufficient cause to condone the delay is totally lacking. As such we have no hesitation in dismissing the application for condonation of delay. Resultantly the appeal stands dismissed on limitation.
The amount, if any, deposited by the petitioner in compliance of this Commission’s Order dated 16.07.2013 along with interest if any accrued thereon shall be utilised by the District Commission towards satisfaction of the award.
The award shall be made good in its entirety by all the opposite parties no. 1 to no. 4 (inclusive the opposite party no. 4 i.e. the petitioner herein), failing which the District Commission shall undertake execution, for ‘e nforcement ’ and for ‘p enalty ’, against all the opposite parties, as per the law.
The Registry is requested to send a copy each of this Order to all parties in this petition and to their learned counsel immediately. The stenographer is also requested to upload this Order on the website of this Commission immediately.