Radha Agro Packs Ltd vs ICICI BANK LTD

AGGRIEVED by order dated 5.12.2011, passed by Haryana State Consumer Disputes Redressal Commission, Panchkula (for short ''State Commission ''), appellant/complainant has filed this First Appeal against respondents/opposite parties..

BRIEF facts are that appellant raised loan on 6.12.2006 for Rs. 34,62,750 from respondent No. 1. Appellant handed over two blank cheques to respondent No. 1, stating the same to be by way of security towards repayment of outstanding loan, with an understanding that cheques would not be presented for encashment without consent and notice to the appellant. It is further alleged that despite appellant making regular payment towards repayment, respondent No. 1 started harassing it. Further, respondent No. 1 in an arbitrary manner directed appellant to remove the stocks from warehouse within seven days from the issuance of their letter dated 29.8.2007. It was further alleged that respondent No. 1, recalled their loan amount vide their notice, dated 8.12.2007. Respondent No. 1 did not even permit the officials of appellant to enter the cold storage for operating the freezing unit and this caused loss to the vegetable stored in the cold storage, which were destroyed. Appellant even requested for settlement of account subject to respondent releasing the entire stocks of appellant and further agreeing to pay 10% of the amount on acceptance of OTS and balance 90% with interest in six equal instalments. Vegetable stored started giving foul smell, because of being destroyed. Matter was taken up with the administration. In the meanwhile, respondent presented the cheques, which were dishonoured and consequently respondent also filed complaint under Section 138 of the Negotiable Instruments Act. The administration constituted a committee, which opened the locks of cold storage for the purpose of removing the destroyed vegetables. Material in the shape of green peas weighing 1,45,500 kg., amounting to Rs. 43,65,000 was damaged. Alleging it as deficiency in service, complaint was filed. Cause of action was stated to have arisen on 29.8.2008 when the committee appointed by Deputy Commissioner headed by SDM, opened the cold storage. Appellant filed a complaint under Section 12 of the Consumer Protection Act, 1986 (for short as ''Act '') on 28.11.2011. Along with it, an application seeking condonation of delay of 454 days was also filed. Delay has been sought to be condoned on the ground that, papers were given to Shri Pardeep Gupta and Ashok Gupta, Advocates who had agreed to file the complaint within time. A letter was also sent by the appellant through UPC to know the position of the case but they did not file the complaint.

STATE Commission, vide its impugned order dismissed the complaint of the appellant as the same was barred by time prescribed under Section 24-A of the Act.

AGGRIEVED by the order of State Commission, appellant has filed the present appeal. We have heard learned Counsel for the appellant. In support, learned Counsel cited following judgments: (i) Harpreet Singh Kohli and Anr. v. Neelu Estate and Movers Pvt. Ltd., IV (2010) CPJ 28 (NC); (ii) N. Balakrishanan v. M. Krishnamurthy, VII (1998) SLT 334=(1998) 7 SCC 123; and (iii) State (NCT of Delhi) v. Ahmed Jaan, Criminal Appeal No. 131 of 2006, decided by Apex Court.

AS per averments made in the appeal, delay in filing of the complaint was unintentional, bona fide and due to the reasons beyond the control of the appellant. In the first week of April, 2010, appellant engaged the services of two Counsel and relevant papers for filing of the complaint were handed over to them. However, those Counsels gave false assurance that time limit for filing the complaint is three years. Appellant not satisfied with their verbal assurance, wrote a letter to them on 15.5.2010. In reference to that letter, Advocate informed the appellant telephonically that requisite fee amounting to Rs. 4,000 has been deposited with the State Government Treasury. Copy of the treasury challan was also sent to the appellant. Being satisfied, appellant awaited for filing of the complaint by those Counsels, but in vain. In the last week of October, 2011, those Counsel returned the papers of the case to the appellant. Thereafter, appellant engaged another Counsel who filed complaint along with application for condonation of delay. It is further stated that main reasons for not filing the complaint in time are that, appellant remained busy to save green peas from its deterioration which were stored in the cold storage. However, the peas deteriorated due to the high handedness and negligence on the part of respondent No. 1.

APPELLANT with regard to cause of action has averred in para 26 of the complaint and the same read as under: "That the cause of action for filing present complaint raised on 29.8.2008 when the locks of the cold storage got opened by the committee consisting of SDM, Brara, Tehsildar, Manager, ICICI Bank, etc., constituted by the learned DC, Ambala vide order dated 24.8.2008. "

As per appellant ''s own case, cause of action arose on 29.8.2008. Admittedly, complaint before the State Commission was filed on 28.11.2011. Thus, complaint is barred by period of 454 days.

MAIN plea taken by appellant is that their earlier Counsel told them that, there was limit of three years for filing the complaint. Assuming for arguments sake that this plea of appellant is correct, nevertheless that period of three years also expired in August 2011. Admittedly, the complaint was filed in November, 2011. Thus, on the face of it, the complaint is barred by limitation.

ANOTHER plea taken by appellant is that, a sum of Rs. 4,000 was deposited as the requisite fee and copy of challan was sent to the appellant. However, appellant has not placed that crucial document on record. Further, there is nothing on record to show that appellant ever took any action against his previous Counsels by filing any complaint before any statutory authority, for not filing the complaint after taking the requisite fee. Interestingly, in ground No. (vi) of the present appeal, appellant introduced a new story for not filing the complaint, which states: "(vi) That complainant/appellant remained busy to save green peas from its deterioration which were stored in cold storage and the same were later on deteriorated due to the highhandedness, negligence and deficiency in service on the part of ICICI Bank which was against the trade practice. "

THIS plea of deterioration of peas, was nowhere taken in the application for condonation of delay.

STATE Commission in its impugned order observed: "Cause of action had taken place, when the OP No. 1-Bank recalled the loan vide their letter dated 29.8.2007 and did not permit the complainant to operate the cold storage. OP No. 1 had recalled their loan on 8.12.2007. The OP No. 1 even filed the complaint under Section 138 of the Negotiable Instruments Act against complainant on 16.7.2008 and still the complaint was filed on 28.11.2011. Though complainant to his suitability has stated the cause of action to have arisen when the SDM opened the cold storage, however, even that was done on 29.8.2008 and yet the complainant waited for more than three years to file the complaint. The cause of action arose on 29.8.2008, when the loan was recalled and complainant was directed to remove the goods from cold storage. The terms ''cause of action '' is neither defined in the Act nor in the Code of Civil Procedure, but is of wide import. Hon ''ble Supreme Court has defined cause of action in judgment reported as Kandimalla Raghavaiah v. National Insurance Co. and Another, III (2009) CPJ 75 (SC)=2009 CTJ 951, SC. It has been held as under - The term ''cause of action '' is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of wide import. It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described as ''bundle of facts '', which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, ''cause of action '' means the cause of action for which the suit is brought ''Cause of action '' means the cause of action for which the suit is brought. ''Cause of action '' is cause of action which gives occasion for and forms the foundation of the suit (See Sidramappa v. Rajasthetty and Others). In the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out. ''

Thus cause of action having arisen firstly on 8.12.2007 when loan was recalled and subsequently on 29.8.2008 and complaint being filed on 28.11.2011 was certainly not maintainable being barred by time prescribed under Section 24A of the Consumer Protection Act, 1986 according to which complaint was to be filed within two years from the date of cause of action. " Section 24A of the Act read as under: "24-A. Limitation period -(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. (2) Notwithstanding anything contained in Sub-section (1) a complaint may be entertained after the period specified in Sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period: Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay. "

THE above provision is clearly peremptory in nature requiring the Consumer Fora to see at the time of entertaining the complaint, whether it has been filed within the stipulated period of two years from the date of cause of action.

IN R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) SLT 701=I (2009) CLT 188 (SC)=2009 (2) Scale 108, it has been observed: "We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition. "

On the point of recurring cause of action reference may be made to the observation made by the Hon ''ble Supreme Court in Raja Ram Maize Products, etc. v. Industrial Court of M.P. and Other, III (2001) SLT 839=AIR 2001 SC 1676, wherein it has been held: "10. The concept of recurring cause of action arising in a matter of this nature is difficult to comprehend. In Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, AIR 1959 S.C. 798, it was noticed that a cause of action which is complete cannot be recurring cause of action as in the present case. When the workers demanded that they should be allowed to resume work and they were not allowed to resume work, the cause of action was complete. In such a case the workers going on demanding each day to resume work would not arise at all. The question of demanding to allow to do work even on refusal does not stand to reason. "

RECENTLY , Apex Court in case Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), has observed: "It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras. "

THE observations made by the Hon ''ble Apex Court in the authoritative pronouncements discussed above, are fully attracted to the facts and circumstances of the present case. None of the judgments cited by learned Counsel are applicable to the facts of the present case.

LOOKING from any angle, no illegality or infirmity can be found in the impugned order passed by the State Commission. The order passed by State commission is well reasoned order and it rightly rejected the application for condonation of delay and dismissed the complaint.

UNDER these circumstances, present appeal is not maintainable. The same is hereby dismissed with costs of Rs. 10,000. Appellant is directed to deposit the costs of Rs. 10,000 by way of demand draft, in the name of "Consumer Legal Aid Account " of this Commission, within eight weeks from today.

IN case, appellant fails to deposit the said costs within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.

LIST on 13.7.2012 for compliance. Appeal dismissed.