M/S.Roshini George (Minor) Vs. the Manager, State Bank of Travancore - Court Judgment

SooperKanoon Citationsooperkanoon.com/1109839
CourtTamil Nadu State Consumer Disputes Redressal Commission SCDRC Chennai
Decided OnJan-31-2011
Case NumberC.C. No.1/2006
JudgeHONOURABLE THIRU JUSTICE M. THANIKACHALAM PRESIDENT, THIRU J. JAYARAM, M.A., M.L., JUDICIAL MEMBER & THIRU S. SAMBANDAM, B.SC., MEMBER II
AppellantM/S.Roshini George (Minor)
RespondentThe Manager, State Bank of Travancore
Excerpt:
this petition coming on before us for hearing finally on 18.11.2011, upon perusing the material documents, and upon hearing the counsels for both the parties, and having stood over till this day for consideration, this commission made the following order. m. thanikachalam j, president 1. this is a complaint filed under section 17 of the consumer protection act, claiming a total sum of rs.35,78,370/-, against the opposite party, leveling, alleging, negligent act, as well as deficiency in service. 2. facts necessary for the disposal of this case:- the complainant was having with the opposite party, a fixed deposit receipt bearing no.132285 for rs.1,50,000/-, dated 16.08.99, having maturity period of three years. at the time of maturity, the complainant informed the opposite party and handed over the matured fdr, to them for renewal, but the same was not renewed, returned, despite number of requests and letters. because of the fact, the opposite party bank failed to realize their mistake, the complainant had to foreclose all the fdrs, as described in document no.5 with the opposite party, resulting heavy loss of interest of rs.31,72, 164/-. 3. upon, refusal to renew the fdr, the complainant approached the banking ombudsman, and they have also dismissed the complaint on 22.12.2004, as if, the complainant has not proved the cash deposit of rs.1,50,000/-. thus, the opposite party had committed deficiency of service, in failing not only to renew the fdr dated 16.08.99 on surrender, but also mishandling the situation, causing huge loss of interest, resulting foreclosure of the fdrs. hence, a complaint is filed for the relief, as detailed in last paragraph of the complaint. 4. the opposite party admitting that the complainants father was a valuable customer for them, opposed the claim, inter alia contending, that the claim is barred by limitation, that the fdr was given by them, on the understanding that the complainants father would issue a cheque to debit the amount from the savings bank account, but failed, and in this view, the fdr is not supported by consideration and on that ground alone, when it was sought to be renewed, the situation was informed to the complainant, that for the foreclosure of the fdrs, with the opposite party bank, either by the complainant or his relatives, since voluntarily, for the alleged loss of interest, the opposite party cannot be held responsible for the fantastic and fabulous amount of rs.31,72,164/- since had nothing to do with the complainant or the deficiency alleged, that if really, cash has been paid for the fdr, the complainant should have produced the receipt/counterfoil, which they failed and taking into account, the banking ombudsman also negatived the claim and as such, the opposite party is not liable to answer any of the claim of the complainant, since they have not committed any negligent act or deficiency in service, as the case may be, thereby praying for the dismissal of the complaint. 5. the parties have filed affidavits in support of the respective cases, and in addition, on behalf of the complainant ex.a1 to ex.a12 are marked and on behalf of the opposite party ex.b1 to ex.b12 marked. no witness has been examined. 6. points for determination are:- 1. whether the complaint is barred by limitation? 2. whether the complainant is entitled to the fdr amount or other amount, if any, to what extent? point no.1: 7. ex.a1 is the xerox copy of the fdr issued in the name of the minor complainant, on 16.08.99 for a sum of rs.1,50,000/-, for a period of 36 months, for the matured value of rs.2,06,206/-. after the maturity, as seen from ex.a2, the complainants father or relative, requested the opposite party, to renew the fdr for a further period of three years. though the opposite party had received the fdr, admittedly, they have not renewed or paid the maturity amount, resulting ex.a4-notice also, accusing the opposite party on 13.09.2002. as seen from ex.a6, the opposite party informed the complainant, that there was a mistake while issuing the fdr and the fdr was not supported by any credit to the deposit account, thereby, denying their responsibilities, refusing to concede the demand of the complainant also, on 07.10.2000 itself, thereby giving cause of action, even to agitate the right, from that date onwards. 8. the complainant, instead of seeking relief before the consumer forum or before any civil court, approached the banking ombudsman, since that kind of remedy was also available, as per the banking ombudsman scheme 2002. it appears, banking ombudsman also conducted enquiry, asking the complainant to produce documents, evidencing the payment of rs.1,50,000/- as consideration for the fdr, which the complainant failed, resulting rejection of the complaint under clause 19 (1)(a) of the banking ombudsman scheme 2002, as per the proceedings, dated 22.12.2004. thereafter alone, as said above, this complaint has been filed, claiming that the complainant is a consumer and the bank is a service provider, in which, generally there cannot be any dispute. 9. before going into the question of limitation, which is the main point urged before us, we feel, it may be proper, to see the fabulous and fantastic claim made by the complainant without any basis even vexatiously. as far as the first prayer is concerned, the complaint may be justifiable, since the bank had issued fixed deposit receipt no.132285 and even after maturity, as per the receipt, amount not paid. as far as other reliefs are concerned, the complainant cannot have any cause of action, especially for the second prayer namely for the recovery of a sum of rs.31,72,164/-. this amount is claimed, as seen from para 2 of the complaint that because of the conduct of the opposite party, he had foreclosed all the fdrs, resulting heavy loss of interest of rs.31,72,164/- as detailed in document no.5, which is exhibited as ex.a5. 10. the complainant is roshni george [minor] represented by father/guardian, thereby showing, father is not the party. it is not the cause title in the complaint, that the father is also a party or father suffered in the hands of the opposite party. entire complaint reads, as if, the complainant alone has suffered the loss etc., but, as seen from ex.a5, probably the complainants family members or relatives had several deposits, with the opposite party bank to the extent of rs.1,07,33,476/-, having the maturity amount of rs.1,39,05,910/-. we do not have any particulars, when the deposits were foreclosed or terminated, what was the actual amount paid etc., though it is an admitted fact that fdrs were closed, by the depositors on their own, for which, the bank cannot be held responsible, since it is not the case of the depositors, that by the negligent act of the opposite party, connected to the depositors, they were compelled, to foreclose or terminate the deposits. as seen from ex.a5, the depositors are different, and we do not find even the name of the complainant except for two fdrs. therefore, for the volunteer foreclosure of the fdrs, even assuming that the bank had committed any negligent act, in not renewing the fdr in question, for the loss of interest if any, which has nothing to do with this transaction and the complainant cannot claim that amount, which is the imaginary amount, for which, the consumer forum cannot provide any remedy. be it as it may. now, we will decide the main dispute, in this case namely question of limitation. 11. as per the pleadings, cause of action had arisen on 16.08.99, 16.08.2002 and finally on 22.12.2004, on which date, the banking ombudsman had rejected the complaint. the complaint was filed on 26.12.2005, that is within two years from 22.12.2004, which cannot be the date of cause of action for the reliefs sought for and the date of cause of action should be the date of maturity of the fixed deposit, namely 16.08.2002 for repayment, or at the maximum, when the complainant was informed under ex.a6 on 07.10.2002 rejecting or refusing the claim of the complainant, which was known to the complainant also, since they have received ex.a6, not in dispute. therefore, the date of cause of action as contemplated under section 24(a) must be the denial, to renew or refusal to pay the amount or at the maximum the intimation given by the bank, namely 07.10.2002. 12. section 24(a)(1) mandates, that the complaint should be filed within two years from the date of cause of action, failing which, mandating the state commission not to admit the complaint, which is the dictum of the apex court also, affirming the section. in this view, the complaint ought to have been filed on or before 07.10.2004, but admittedly filed on 26.12.2005 that is beyond two years. therefore, as rightly contended on behalf of the opposite party, the claim should be dismissed as barred by limitation and this commission cannot exercise its jurisdiction, to find out the negligent act or deficiency of the opposite party in order to ascertain or pass an order, as claimed. 13. the learned counsel for the complainant urged before us, that as contemplated under banking ombudsman scheme 2002, they have approached the ombudsman, for relief and the date of dismissal alone should be the date of cause of action or the period consumed in prosecuting the case before ombudsman should be excluded, under section 14 of the limitation act. we find no legal flavour in this submission, and there is a fallacy also and therefore, we cannot invoke section 14 of the limitation act. 14. section 14 of the limitation act is not made applicable to the consumer forum, since the act is a self-contained act, where itself limitation is prescribed, under section 24(a). section 14 of the limitation act contemplates exclusion of time consumed before the civil court where the party had initiated, the proceedings or prosecuted the case, in another civil proceeding that should be excluded. the proceedings, bonafidely before this commission, will not come within the meaning of suit and the proceedings before the banking ombudsman also will not come within the meaning of civil proceedings and in this view, as if, the complainant, bonafidely prosecuted the case, it is not possible to exclude the period consumed by the complainant, before the banking ombudsman. 15. section 24 (a) itself contemplates to condone the delay, as seen from sub-section (ii) of section 24 (a). but, the complainant has not invoked this provision, by filing a petition to condone the delay, pleading sufficient cause, for not filing the complaint, within the period of limitation prescribed under section 24(a)(1) of the consumer protection act. in case, if the complainant had filed a petition under section 24(a)(2), there would have been a chance to condone the delay, taking into account, the proceedings initiated by the complainant before the banking ombudsman and not otherwise. neither the consumer protection act, nor banking ombudsman scheme bars the proceedings, simultaneously or parallelly. nowhere in the act, it is said, if a proceedings is initiated elsewhere, a case is not maintainable before the consumer forum under the consumer protection act, whereas section 3 specially permits the complainant, to avail the remedy as additional remedy. in the banking ombudsman scheme also, there was no prohibition. it contemplates, filing a complainant before the banking ombudsman, within a year after the cause of action has arisen, and does not mean a consumer complaint is barred here. in the absence of any specific petition, seeking condonation of delay, invoking section 14 of limitation act, we cannot exclude the period of limitation, thereby bring the case, within the period of limitation under consumer protection act. for the above said reasons, we are of the considered opinion, that the claim is clearly barred by limitation, and therefore, the same is liable to be dismissed, thereby, we answer this point against the complaint. 16. in view of our findings on point no.1, we have no jurisdiction to exercise our right, to find out the genuineness of the claim in view of the legislative command, not to admit the claim after two years and in this view, we conclude, the complainant is not entitled to any compensation, for the alleged negligent act or deficiency in service. hence, this point is answered accordingly. 17. in the result, the complaint is dismissed. there will be no order as to cost.
Judgment:

This petition coming on before us for hearing finally on 18.11.2011, upon perusing the material documents, and upon hearing the counsels for both the parties, and having stood over till this day for consideration, this Commission made the following order.

M. THANIKACHALAM J, PRESIDENT

1. This is a complaint filed under Section 17 of the Consumer Protection Act, claiming a total sum of Rs.35,78,370/-, against the opposite party, leveling, alleging, negligent act, as well as deficiency in service.

2. Facts necessary for the disposal of this case:-

The complainant was having with the opposite party, a Fixed Deposit Receipt bearing No.132285 for Rs.1,50,000/-, dated 16.08.99, having maturity period of three years. At the time of maturity, the complainant informed the opposite party and handed over the matured FDR, to them for renewal, but the same was not renewed, returned, despite number of requests and letters. Because of the fact, the opposite party bank failed to realize their mistake, the complainant had to foreclose all the FDRs, as described in Document No.5 with the opposite party, resulting heavy loss of interest of Rs.31,72, 164/-.

3. Upon, refusal to renew the FDR, the complainant approached the Banking Ombudsman, and they have also dismissed the complaint on 22.12.2004, as if, the complainant has not proved the cash deposit of Rs.1,50,000/-. Thus, the opposite party had committed deficiency of service, in failing not only to renew the FDR dated 16.08.99 on surrender, but also mishandling the situation, causing huge loss of interest, resulting foreclosure of the FDRS. Hence, a complaint is filed for the relief, as detailed in last paragraph of the complaint.

4. The opposite party admitting that the complainants father was a valuable customer for them, opposed the claim, inter alia contending, that the claim is barred by limitation, that the FDR was given by them, on the understanding that the complainants father would issue a cheque to debit the amount from the Savings Bank Account, but failed, and in this view, the FDR is not supported by consideration and on that ground alone, when it was sought to be renewed, the situation was informed to the complainant, that for the foreclosure of the FDRs, with the opposite party bank, either by the complainant or his relatives, since voluntarily, for the alleged loss of interest, the opposite party cannot be held responsible for the fantastic and fabulous amount of Rs.31,72,164/- since had nothing to do with the complainant or the deficiency alleged, that if really, cash has been paid for the FDR, the complainant should have produced the receipt/counterfoil, which they failed and taking into account, the Banking Ombudsman also negatived the claim and as such, the opposite party is not liable to answer any of the claim of the complainant, since they have not committed any negligent act or deficiency in service, as the case may be, thereby praying for the dismissal of the complaint.

5. The parties have filed affidavits in support of the respective cases, and in addition, on behalf of the complainant Ex.A1 to Ex.A12 are marked and on behalf of the opposite party Ex.B1 to Ex.B12 marked. No witness has been examined.

6. Points for determination are:-

1. Whether the complaint is barred by limitation?

2. Whether the complainant is entitled to the FDR amount or other amount, if any, to what extent?

POINT NO.1:

7. Ex.A1 is the xerox copy of the FDR issued in the name of the minor complainant, on 16.08.99 for a sum of Rs.1,50,000/-, for a period of 36 months, for the matured value of Rs.2,06,206/-. After the maturity, as seen from Ex.A2, the complainants father or relative, requested the opposite party, to renew the FDR for a further period of three years. Though the opposite party had received the FDR, admittedly, they have not renewed or paid the maturity amount, resulting Ex.A4-notice also, accusing the opposite party on 13.09.2002. As seen from Ex.A6, the opposite party informed the complainant, that there was a mistake while issuing the FDR and the FDR was not supported by any credit to the deposit account, thereby, denying their responsibilities, refusing to concede the demand of the complainant also, on 07.10.2000 itself, thereby giving cause of action, even to agitate the right, from that date onwards.

8. The complainant, instead of seeking relief before the Consumer Forum or before any Civil Court, approached the Banking Ombudsman, since that kind of remedy was also available, as per the Banking Ombudsman Scheme 2002. It appears, Banking Ombudsman also conducted enquiry, asking the complainant to produce documents, evidencing the payment of Rs.1,50,000/- as consideration for the FDR, which the complainant failed, resulting rejection of the complaint under Clause 19 (1)(a) of the Banking Ombudsman Scheme 2002, as per the Proceedings, dated 22.12.2004. Thereafter alone, as said above, this complaint has been filed, claiming that the complainant is a consumer and the Bank is a Service Provider, in which, generally there cannot be any dispute.

9. Before going into the question of limitation, which is the main point urged before us, we feel, it may be proper, to see the fabulous and fantastic claim made by the complainant without any basis even vexatiously. As far as the first prayer is concerned, the complaint may be justifiable, since the Bank had issued Fixed Deposit Receipt No.132285 and even after maturity, as per the receipt, amount not paid. As far as other reliefs are concerned, the complainant cannot have any cause of action, especially for the second prayer namely for the recovery of a sum of Rs.31,72,164/-. This amount is claimed, as seen from Para 2 of the complaint that because of the conduct of the opposite party, he had foreclosed all the FDRs, resulting heavy loss of interest of Rs.31,72,164/- as detailed in Document No.5, which is exhibited as Ex.A5.

10. The complainant is Roshni George [Minor] represented by Father/Guardian, thereby showing, father is not the party. It is not the Cause Title in the complaint, that the father is also a party or father suffered in the hands of the opposite party. Entire complaint reads, as if, the complainant alone has suffered the loss etc., But, as seen from Ex.A5, probably the complainants family members or relatives had several deposits, with the opposite party Bank to the extent of Rs.1,07,33,476/-, having the maturity amount of Rs.1,39,05,910/-. We do not have any particulars, when the deposits were foreclosed or terminated, what was the actual amount paid etc., though it is an admitted fact that FDRs were closed, by the depositors on their own, for which, the Bank cannot be held responsible, since it is not the case of the depositors, that by the negligent act of the opposite party, connected to the depositors, they were compelled, to foreclose or terminate the deposits. As seen from Ex.A5, the depositors are different, and we do not find even the name of the complainant except for two FDRs. Therefore, for the volunteer foreclosure of the FDRs, even assuming that the Bank had committed any negligent act, in not renewing the FDR in question, for the loss of interest if any, which has nothing to do with this transaction and the complainant cannot claim that amount, which is the imaginary amount, for which, the Consumer Forum cannot provide any remedy. Be it as it may. Now, we will decide the main dispute, in this case namely question of limitation.

11. As per the pleadings, cause of action had arisen on 16.08.99, 16.08.2002 and finally on 22.12.2004, on which date, the Banking Ombudsman had rejected the complaint. The complaint was filed on 26.12.2005, that is within two years from 22.12.2004, which cannot be the date of cause of action for the reliefs sought for and the date of cause of action should be the date of maturity of the fixed deposit, namely 16.08.2002 for repayment, or at the maximum, when the complainant was informed under Ex.A6 on 07.10.2002 rejecting or refusing the claim of the complainant, which was known to the complainant also, since they have received Ex.A6, not in dispute. Therefore, the date of cause of action as contemplated under Section 24(A) must be the denial, to renew or refusal to pay the amount or at the maximum the intimation given by the Bank, namely 07.10.2002.

12. Section 24(A)(1) mandates, that the complaint should be filed within two years from the date of cause of action, failing which, mandating the State Commission not to admit the complaint, which is the dictum of the Apex Court also, affirming the Section. In this view, the complaint ought to have been filed on or before 07.10.2004, but admittedly filed on 26.12.2005 that is beyond two years. Therefore, as rightly contended on behalf of the opposite party, the claim should be dismissed as barred by limitation and this Commission cannot exercise its jurisdiction, to find out the negligent act or deficiency of the opposite party in order to ascertain or pass an order, as claimed.

13. The learned counsel for the complainant urged before us, that as contemplated under Banking Ombudsman Scheme 2002, they have approached the Ombudsman, for relief and the date of dismissal alone should be the date of cause of action or the period consumed in prosecuting the case before Ombudsman should be excluded, under Section 14 of the Limitation Act. We find no legal flavour in this submission, and there is a fallacy also and therefore, we cannot invoke Section 14 of the Limitation Act.

14. Section 14 of the Limitation Act is not made applicable to the Consumer Forum, since the Act is a self-contained Act, where itself limitation is prescribed, under Section 24(A). Section 14 of the Limitation Act contemplates exclusion of time consumed before the Civil Court where the party had initiated, the proceedings or prosecuted the case, in another civil proceeding that should be excluded. The proceedings, bonafidely before this Commission, will not come within the meaning of Suit and the Proceedings before the Banking Ombudsman also will not come within the meaning of civil proceedings and in this view, as if, the complainant, bonafidely prosecuted the case, it is not possible to exclude the period consumed by the complainant, before the Banking Ombudsman.

15. Section 24 (A) itself contemplates to condone the delay, as seen from sub-section (ii) of Section 24 (A). But, the complainant has not invoked this provision, by filing a petition to condone the delay, pleading sufficient cause, for not filing the complaint, within the period of limitation prescribed under Section 24(A)(1) of the Consumer Protection Act. In case, if the complainant had filed a petition under Section 24(A)(2), there would have been a chance to condone the delay, taking into account, the proceedings initiated by the complainant before the Banking Ombudsman and not otherwise. Neither the Consumer Protection Act, nor Banking Ombudsman Scheme bars the proceedings, simultaneously or parallelly. Nowhere in the Act, it is said, if a proceedings is initiated elsewhere, a case is not maintainable before the Consumer Forum under the Consumer Protection Act, whereas Section 3 specially permits the complainant, to avail the remedy as additional remedy. In the Banking Ombudsman Scheme also, there was no prohibition. It contemplates, filing a complainant before the Banking Ombudsman, within a year after the cause of action has arisen, and does not mean a consumer complaint is barred here. In the absence of any specific petition, seeking condonation of delay, invoking Section 14 of Limitation Act, we cannot exclude the period of limitation, thereby bring the case, within the period of limitation under Consumer Protection Act. For the above said reasons, we are of the considered opinion, that the claim is clearly barred by limitation, and therefore, the same is liable to be dismissed, thereby, we answer this Point against the complaint.

16. In view of our findings on Point No.1, we have no jurisdiction to exercise our right, to find out the genuineness of the claim in view of the legislative command, not to admit the claim after two years and in this view, we conclude, the complainant is not entitled to any compensation, for the alleged negligent act or deficiency in service. Hence, this Point is answered accordingly.

17. In the result, the complaint is dismissed. There will be no order as to cost.