DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PURULIA
CONSUMER COMLAINT No. 21 OF 2008
Date of filing: 23rd July 2008
Date of Order: 20th February 2009
Complainant Opposite Party
Sri Ashok Agarwalla, Bank of Baroda,
C/o. PARIWAR, Rep. By Branch Manager,
Chaibasa Road, Purulia, Purulia Branch,
Post Office: Purulia, Court Road, Purulia,
Police Station: Purulia (Town), Post Office: Purulia,
District: Purulia. Police Station: Purulia (Town),
District: Purulia.
Present: 1. Shri R.N. Sarkar, President.
2. Sri A. Sinha, Member.
3. Smt. S. Sengupta (Santra), Member.
For the Complainant : Sri P. Roy, Adv.
For the O.P. : Sri K.B. Chandra, Adv.
Order No. 11, dated 20.02.2009/C.C.No. 21 of 2008
Complainant Ashok Agarwalla filed this complaint praying for direction to the O.P.-Bank of Baroda to pay the draft amount of Rs. 50,000=00 with interest and Rs. 10,000=00 for harassment and mental pain and Rs. 5,000=00 towards litigation cost on the plea that he deposited two Demand Drafts (DDs) bearing Nos. 336582 and 336583 of Rs. 50,000=00 (Rs. 25,000=00 each) on 22.12.2000 to the O.P.-Bank for encashment of the DDs amount and to credit the same to his S.B A/c. No. 41/4517. The aforesaid two DDs were issued from S.B.I, Bargarh Branch, Orissa in favour of the complainant. The O.P.-Bank issued encashment of deposit of the
aforesaid two DDs to the complainant by issuing receipts. On 20.6.2008 on scrutiny the complainant came to know that the DDS amount in respect of the aforesaid two DDs were not credited to his S.B.A/c. Thereafter, he made a contact with the O.P.-Bank for verification of the Bank documents and found that the said two DDs were not credited to his S.B.A/c. Despite service of written complaint to the O.P.-Bank no action was taken by the O.P. to credit that amount to his account which constitute deficiency in service and this gives rise to the complaint with the prayer stated above.
The O.P. by filing written version contended inter alia that the complaint is hopelessly barred by limitation and the same is not maintainable in law and facts. The specific case of the O.P. is that it is true that the receipt was issued by the Bank authority on 22.12.2000 showing an acknowledgement of the alleged DDs and the O.P. has sufficient reasons to believe that if the said DDs were genuine then must have acknowledged the said DDs and credited to the account of the complainant. After lapse of seven years and more the complainant disclosed non-encashment of the drafts in question to the bank. The bank has computerized in the mean time. After depositing the drafts the complainant never contacted the Bank in relating to the issue of non-encashment of the said drafts. No part of cause of action has arose on and from 20.6.2008. The complainant could not lay any claim after the expiry of long about eight years. The O.P. prayed for dismissal of complaint with cost.
Upon the pleadings of the parties the following issues are framed for determination of the disputes raised by the parties:
1. Is the complaint barred by limitation?
2. Is the complainant entitled to relief prayed for?
3. To what other relief/reliefs he is entitled to?
Issue No. 1:
In order to substantiate the case both the parties examined one witness each and the complainant produced the documents marked Exhibit. “1” to “3”. No documents produced by the O.P.
It is undisputed that two DDs were deposited to the O.P. on 22.12.2000 (Exbt. “1”) and entry was made in the passbook (Exbt. “2”). It is the case of the complainant that the cause of action for the present complaint arose on and from 20.6.2008 from the date of detection of non-deposit of draft amount to the S.B A/c. of the complainant.
Ld. Advocate appearing for the complainant has submitted that the complainant may for any reason be forgetful so far as to ascertain the cash balance in his account for any span of time since he may have so many of accounts in so many banks. As the process of operation regarding drafts in question is still continuing and the O.P.-Bank has failed to established as to whether the drafts amount in question has been credited on a particular date to S.B.A/c. of the complainant or not and cause of action arose on 22.12.2000 will be closed on the date of its encashment and to credit the DDs amount to S.B A/c. of the complainant. As the O.P.-Bank has failed to submit the drafts clearance letter of payee bank and copy of the ledger of the S.B. A/c., the cause of action though accrued on 22.12.2000 is continuing till date and the stands taken by the O.P.-Bank on the point of limitation is not tenable either in law or in fact.
As against this Ld. Advocate appearing for the O.P. has submitted that the instance case is not only hopelessly barred by limitation but also estoppels waiver and acquience which has been filed by the complainant after the expiry of 7 ½ years for wrongful gain and to cause wrongful loss to the O.P.
P.W. 1 in his evidence has stated that he deposited both the drafts on 22.12.2000. Several transactions were made with the Bank in his account after 22.12.2000. He also produced passbook several times to make the account up to date. He admitted that the present complaint has been filed after lapse of seven or eight years.
O.P.W. 1 during cross-examination admitted the seal of the bank but not the initial signature on the receipt (Exbt. “1”). He failed to say the fate of the disputed draft till date.
The question arose for consideration is whether the instant complaint is barred by limitation or not. Admittedly, the two drafts were deposited on 22.12.2000 and the present complaint has been filed on 23.7.2008 showing cause of action on and from 20.6.2008 from the date of detection. No sufficient cause has been shown by the complainant for not filing the complaint within the periods of two years from the date on which the cause of action has arisen. Under Section 24A of the C. P. Act the accepted legal position is that the period if limitation is two years from the date on which the cause of action has arisen. In this case surely the cause of action arose on 22.12.2000, not from the date of detection or knowledge. No application has been filed by the complainant for condonation of delay as provided u/S. 24A sub-section 2 of the C. P. Act. Section 24A of the Act debars any Fora set up under Act admitting a complaint unless the complaint is filed within two years from the date of which the cause of action has arisen. The limitation started running from 20.12.2000 from the date of depositing of the two drafts in the O.P.-Bank. Thereafter, no effort was made by the complainant to make entry of his passbook up to date whether validity of the DD is six month. From the passbook (Exbt. “2”) it appears that several entries were made after 22.12.2000 and fresh computerized passbook was issued to the complainant by the O.P. Bank.
Accordingly, we hold that the complainant filed this complaint belated stage and there was inordinate delay in filing this complaint. When the statute itself prescribed the period of limitation for filing a complaint, we do not find any reason to agree with the views expressed by the Ld. Advocate for the complainant that the cause of action arose on the date of detection.
In view of above findings, we hold that the present complaint is hopelessly barred by limitation as the two years period prescribed by Section 24A of the Act, it expired much before the complaint was admitted. We find no reason to discussed the other issues as the complaint is barred by limitation.
Issue No. 1 is decided in the affirmative.
Accordingly, it is
O r d e r e d
That the complaint is dismissed on contest as per by limitation.
Let a certified copy of this order be supplied to the parties free of charge.
Sri A.K.Sinha Smt. S.Sengupta Sri R.N.Sarkar
Member Member President.
Tags: Bank of Baroda