Rabin Ray vs Branch Manager Of The Kidderpore Branch Of United Bank Of India

Heard the learned counsel for the appellant as also the learned counsel for the respondent and perused the impugned order dated 17-06-2016 passed by the State Consumer Disputes Redressal Commission, West Bengal (hereinafter referred as 'the State Commission').

It appears that a complaint was filed by the appellant being Complaint Case No.CC/169/2013 seeking relief of refund of Rs.98,00,000/- lying in suspense account of inward payments with the opposite party, interest from the date of setting off payment of the said advances at an interest at the rate of 22% p.a., compensation, release of all LICI documents and litigation costs, etc..

The matter was contested by the opposite party and the State Commission framed five issues, the foremost being whether the appellant is a consumer within the meaning of Section 2(1) (d) of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act'). Secondly, whether the complaint is barred by principles of res judicata and, thirdly, whether the complaint is barred by limitation.

On the question, as to whether the appellant is a consumer or not, the State Commission had recorded the following findings:

"On perusal of the petition of complaint, it comes to surface that the opposite party bank provided cash credit facility to the complainant. The complainant in his petition of complaint has not averred that he has availed such cash credit facility for the purpose of earning his livelihood by means of self employment. Therefore, the only conclusion should be drawn that so called services which are claimed to be deficient were availed by the complainant for commercial purpose. Therefore, the complainant does not fall within the category of 'consumer' as defined in Section 2(1) (d) of the Act.

Accordingly, when it is found that complainant is not a 'consumer' under the purview of the Act, the complaint in not maintainable on this score alone the case is liable to be dismissed."

So far as the question as to whether the complaint is barred by principles of res judicata is concerned, the State Commission has recorded the following findings:

"However, complainant has suppressed this fact in his petition of complaint. In this regard, Mr. M. M. Das, Ld. Advocate for the OP has drawn our attention to a decision of National Consumer Commission reported in 2013 (4) CPR 272 (Tata Motors Ltd. & Anr. Vs. Hazoor Maharaj Baba & Anr.). In the said decision, it has been held that one who does not come to Court with clean hands and withholds vital documents in order to get advantage on other side, he would be guilty of playing fraud on Court and has no right to approach the Court. In this regard, a decision of Hon'ble Supreme Court of India in S. P. Chengalvaraya Naidu (dead) Vs. Jagannath (dead) & Ors. reported in (1994) 1 SCC is a pointer where the Court held "where a preliminary decree was obtained by withholding any important document from the Court, the party concerned deserves to be thrown out at any state of the litigation".

The suppression of earlier complaint lodged by the complainant before a consumer forum certainly creates a dent to the complainants case. Be that as it may, when the complainant earlier initiated a complaint u/s 12 of the Act being CDF Case No.71/1993 against the present OP over the same set of facts and in respect of actual cause of action, the present complaint is barred by principles of res judicata."

Insofar as the question of limitation is concerned, the State Commission has recorded the following findings:

"In the petition of complaint, complainant has mentioned that the cause of action arose on 11-05-2013 and within two years from that date the instant application has been filed. However, on going through the documents contained in Annexure - 1 and 2 series it reveals that all those documents are relating to transactions in between 1990-1992. In para - 10 of the petition of complaint, complainant himself has mentioned that the OP illegally withheld out bound payments from the complainant to his suppliers on 16-06-1993. Perhaps for that reason, complainant lodged CDF Case No.71 in the year 1993. All further developments are nothing but correspondences and representations. In 2015 (4) CPR 50 (Punjab State Warehousing Corporation Vs. United India Insurance Co. Ltd.) it has been held that a consumer complaint must be lodged within two years from the date of cause of action as embodied in Section 24A of the Act and by serving legal notice or by making representation, period of limitation cannot be extended. The provisons of Section 24A is peremptory and mandatory in nature and delay in preferring the complaint cannot be entertained unless an application for condonation of delay is filed after showing sufficient cause. Perhaps, complainant did not file any application for condonation of delay out of fear that after appearance of OP, the complaint might be dismissed on its threshold.

In any case, the complaint being hopelessly barred by limitation, this point is also decided against the complainant."

On a query being made as to whether any averment was made in the complaint that the appellant was having its only source of livelihood from the business in question, the learned counsel for the appellant fairly submitted that the appellant has not made any such averment, however, it is implied in complaint that the appellant was having its only source of livelihood from the business in question. This submission is wholly misconceived as no specific averment has been made in the complaint that the services were availed by him for the purpose of earning his livelihood by means of self employment. As no submission having been made in this regard and the matter relates to the availing of cash credit/loan facilities from the opposite party, it prima facie establishes that it was a commercial transaction. The finding of the State Commission does not suffer from any illegality.

So far as the question of principles of res judicata being made applicable in the present case is concerned, we find that the appellant had filed CDF Case No.71/1993 before the learned Kolkata District Consumer Disputes Redressal Forum and which was dismissed on contest with the findings recorded by the District Forum that there was no deficiency in service on the part of the opposite party-bank which fact was not disclosed by the appellant while filing the present complaint. The provisions of Section 11 of the Code of Civil Procedure,1908 though have not been specifically made applicable to the Act in question yet general principle of res judicata is applicable and, therefore, the State Commission had rightly held it against the appellant.

So far as the question of limitation is concerned, we find that the documents filed as Annexure 1 & 2 along with complaint relates to its transactions between 1990 to 1992 and the present complaint was filed in the year 2013. These very transactions were also the basis of the earlier complaint which was filed in the year 1993. That being the case, the complaint filed in the year 2013 is specifically barred by limitation.

The order passed by the State Commission suffers with no infirmity, illegality or material irregularity which calls for interference in the appellate jurisdiction.

The appeal fails and is, accordingly, dismissed