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Judgment
BEING aggrieved by order dated 15.9.2011, passed by Maharashtra State Consumer Disputes Redressal Commission, Mumbai (for short ''State Commission '') dismissing the application for condonation of delay as well as complaint filed by appellant, present appeal has been filed.
APPELLANT filed a consumer complaint before the State Commission claiming a sum of Rs.42,68,795/- being the fixed deposit amounts with interest as well as compensation and costs from the respondents. In the complaint, it has been averred that, the first of action arose when ; "(a) opposite parties failed to pay the claimed amounts on 20.9.2007, and on date of maturity of the fixed deposit amounts, being 31.12.2007 and 10.1.2008 ; and even after receipt of the legal notice, dated 23.1.2008 ".
ALONG with the complaint, appellant filed an application seeking condonation of delay of 414 days.
STATE Commission, vide impugned order dismissed the application for condonation of delay and accordingly did not entertain the complaint. It is contended by learned counsel for the appellant that the State Commission has ignored the material facts of the case while concluding that there was no sufficient reason in condoning the delay. The deficiency of service complained of by the appellant pertains to non-refund of fixed deposit by the respondent. Appellant had been pursuing other legal remedies and she was seriously ill in January, 2008 and Nov., 2010, which fact State Commission has failed to consider.
FURTHER , it is contended that it was a recurring cause of action and fresh cause of action arose, when the deficiency of service continued to exist. Moreover, in the month of February 2008 the appellant, who was ailing on account of a cyst on her head, had to leave for USA for consultation/treatment on 19.2.2008. Appellant returned to India on 2.5.2008, after having learnt of her last sister ''s death due to brain aneurysm. After her sister ''s death, appellant was shattered and the prospect of being all alone thereafter in India led her to deep depression and a nervous breakdown, followed by memory loss. Thus, there were sufficient ground for condonation of delay. However, the State Commission took a very rigid and narrow conspectus of the matter and wrongly rejected the application for condonation of delay and dismissed the complaint.
THE main ground pleaded in the application for condonation of delay filed before the State Commission, read as under ; "The applicant left for USA in 2008, for medical reasons. Applicant ''s advocate filed a criminal complaint against the Bank in ACJM Court, Pune in 2008 and after police investigation in 2009, the Hon ''ble Court issued process against the four accused Bank Officers u/s 420, 403, 406, 504 r/w 120-B. Her advocate informed the applicant that the only remedy for her dues, was in a civil suit, which would take 20 years, and heavy court and lawyer ''s fees ; that Bank would compromise, after outcome of the criminal complaint in her favour, since the Bank officer had given a written confession that he had himself taken her FDR amounts ; and had therefore, issued cheques of FDR amounts to the Chief Manager of the Bank. The applicant ''s last living sister, died of brain aneurysm in 2008. The applicant was now completely alone in India, and she suffered from acute depression and a nervous breakdown. In 2009, applicant had undergone MRI brain-scan, surgery was scheduled, and was and is under treatment since then ; she suffered from memory lapses and was ordered complete rest, without any stress. Therefore, High Court and Supreme Court expedited her matter in 2010. In 2010, after the favourable verdict of High Court and Apex Court in her one Crore case, she again contacted the Banking Ombudsman and Governor of RBI, who sent replies on 4.8.2010 and 13.10.2010 respectively. Learned counsel in High Court informed her about State Commission, and she immediately gave the complaint and the delay condonation application, to her advocate in Nov., 2010 to be filed, and to which the opposite party submitted their reply on 23.4.2011. All through 2007-2011 she has been in personal and telephonic contact with the main branch of Bank of India, where she continues to have her SB A/c 72754 and some fixed deposits, requesting for her rightful dues, apprising them of her grave condition, when her days on earth are limited ; hoping that banking conscience would prevail. The cause of action arose on 22nd Sept., 2007 and the complaint was filed on 12.11.2010 ; which totals 1144 days (2 years + 414 days). There has been a delay of 414 days, beyond the period of limitation due to genuine reasons and events and no procrastination on her part, as she was consistently following it up with Banking authorities, Police, court, as her health permitted, for this continuing offence u/s 472 of Cr.P.C., which needs to be condoned, to prevent irreparable harm and prejudice to an innocent helpless Senior citizen and Social worker. "
State Commission, while dismissing the application in the impugned order observed ; "We heard both the parties at length. In the instant case, what we could get from the statement made by the applicant/complainant in her revised application dated 25/08/2011 is that right from the beginning she had an advantage of legal advice through a competent lawyer. Admittedly, alleged deficiency in service relates to not refunding the amount of deposit on maturity. First of such deposits was matured on 31/12/2007 and another was matured on 10/01/2008. Therefore, this consumer complaint was filed on 11/11/2010. The cause of action as stated in para 12 of the revised application dated 25/08/2011, arose on 22/09/2007. We may take date of maturity i.e. 31/12/2007 and 10/01/2008 on which dates the respective causes of action arose. Therefore, obviously consumer complaint in respect of later matured date ought to have been filed on or before 10/01/2010 and, thus, there is a delay in filing this consumer complaint when it was filed on 11/11/2010. As earlier pointed out, the applicant/complainant was receiving legal advice from her lawyer from time to time. As per said advice, she initially filed a criminal complaint in the Court of Chief Judicial Magistrate at Pune in the year 2008. Thereafter, as further stated in para 7 of her revised application dated 25/08/2011, her lawyer advised her that only proper remedy to collect her dues would be by filing a civil suit but he also warned her that such civil suit would take 20 years and heavy court fee and lawyer ''s fee. Therefore, perhaps the criminal complaint was filed with a hope that bank would compromise the matter, once the Criminal Court decides the matter in her favour. Matter was also in the course of time taken upto the High Court. It is stated that in the year 2010 a favourable verdict of the High Court and the Apex court in her one crore case has arrived and then she contacted Banking Ombudsman and Governor of RBI, who sent their reply respectively on 04/08/2010 and 13/10/2010 and, thereafter, advocates practicing in the High Court informed her about this State Commission and she immediately filed consumer complaint along with delay condonation application. Thus, it could be seen that the applicant/complainant was pursuing her legal remedies available to her as per her own choice and election. She was already advised about a civil suit but for the reasons mentioned earlier, she preferred not to file the same. Consumer complaint stands on different footing than the civil suit since it travel within the area of deficiency in service in the background of the present case. Certainly, it is not a case where wrong remedies were followed or were persuaded, bonafidely. Therefore, after traveling through other remedies including approaching Bank Ombudsman, if some advocates practicing in the High Court informed her about the State Commission also and then if she filed a consumer complaint, this reason cannot be taken as a ''sufficient reason '' or ''sufficient ground '' to condone this enormous delay. No doubt the issue of limitation is to be considered sympathetically and with due diligence but not that to deprive the other side of the rights vested in it due to lapse of limitation. There must be sufficient reason to do so and in the instant case, same is lacking. "
AS per appellant ''s own case, cause of action arose for the first time on 20.9.2007, when opposite party failed to pay the claimed amounts. Complaint in the present case was filed on 12.11.2010, which means that there was delay of 414 days in filing of this complaint. Mere fact that the complainant has been in correspondence with other authorities, will not enlarge the period of limitation.
IT is well settled principle of law that any relief can be claimed under the Consumer Protection Act, 1986 (for short as ''Act ''), within two years from the date on which the cause of action accrues. Section 24-A of the Act, 1986, deals with this situation which is reproduced 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.
HON ''ble Apex Court in case of Kandimalla Raghavaiah and Co. versus National Insurance Co. Ltd. and another, 2009 CTJ 951 (Supreme Court) (CP) took view of the observations made in case State Bank of India v. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, as under:- "12. Recently, in State Bank of India Vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, this Court, while dealing with the same provision, has 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. "
In para No.13, it has been held by the Hon ''ble Supreme Court "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 " is cause of action which gives occasion for and forms the foundation of the suit. 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. "
In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361,it has been observed; "It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. "
IN R.B. Ramlingam Vs. R.B. Bhavaneshwari, 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. Vs. Industrial Court of M.P. and Other, AIR 2001 SUPREME COURT 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. 798it 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 Vs. 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.
IN the entire complaint filed before State Commission, petitioner has nowhere stated about her illness. It is only in the application for condonation of delay, petitioner has stated about her illness and even that illness pertains to the year 2008 year. Appellant has not placed on record any medical evidence to show about the ailment, except for one document, (placed at page 92 of the paper book) in which she has been suggested ''Stereotactic Biopsy '' of the lesion (brain) in Oct., 2009. However, there is nothing on record to show as to whether any such biopsy was done or not and for how many days, the appellant remained confined to the bed. 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 also dismissed the complaint.
UNDER these circumstances, present appeal being without any legal basis is meritless. 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 cross cheque, in the name of "Consumer Legal Aid Account " of this Commission, within four weeks from today. In case, appellant fails to deposit the said costs within the prescribed period, then she shall also be liable to pay interest @ 9% p.a., till realization.
LIST on 30.3.2012 for compliance.