Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2067 OF 2002
State Bank of India ... Appellant
Versus
M/s B.S. Agricultural Industries (I) ...Respondent
J U D G E M E N T
R.M. Lodha, J.
In this appeal by special leave an order passed by the
National Consumer Disputes Redressal commission (hereinafter
referred to as ‘National Commission’) on October 1, 2001 is under
challenge. The District Consumer Disputes Redressal Forum, Ist,
Agra (hereinafter referred to as ‘District Forum’) vide its order dated
November 16, 2000 allowed the complaint filed by the present
respondent (for short, ‘the Complainant’) and directed the present
appellant (for short, ‘the Bank’) to pay to the complainant Rs.
2,47,154/- with interest @ 15% per annum from April 21, 1994 and
Rs. 5,000/- towards compensation. The Bank challenged this order
in appeal before the State Commission for Redressal of Consumer
Disputes, Uttar Pradesh, Lucknow (for short, ‘State Commission’)
but without any success. The National Commission upheld the
concurrent orders of consumer fora to which the Bank is aggrieved.
2. The complainant filed a complaint against the Bank on
May 5, 1997 claiming an amount of Rs. 2,47,154/- for deficiency in
service alongwith interest @ 12% p.a., litigation expenses and
compensation. The complainant averred; that it has been carrying
on business of manufacturing and supply of engines and pump
sets all over India through their dealers and distributors; that it sent
to the Bank seven bills amounting to Rs. 2,47,154/- drawn on M/s
Unique Agro Service, P.O. Heria, District Midnapore (W.B.) together
with GR’s of transporters for collection of payment and remittance of
proceeds to the complainant; that it instructed the Bank to deliver
the bills and GR’s against payment to the drawee (M/s Unique
Agro Service) and charge interest @ 24% per annum from May 22,
1994 (if the documents are not retired by the drawee from the Bank
within 30 days of the presentation of the bills); that the Bank was
also instructed to return the bills and GR’s if the drawee did not
retire the bills within 45 days of the presentation of the bills i.e. upto
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June 7, 1994 and that despite repeated letters dated March 15,
1995, May 4, 1996, March 1, 1997 and March 20, 1997 and legal
notice dated April 3, 1997, the Bank has neither sent the amount of
Rs. 2,47,154/- nor returned the said bills and GR’s necessitating the
complaint before the District Forum, Agra.
3. The complainant admitted in the complaint that vide
letter dated March 28, 1995, the Bank informed it that they have
returned the bills and GR’s to B.M Konar (complainant’s sales
manager) on May 10, 1994. However, according to the complainant
on May 4, 1996, a letter was sent to the Bank asking them under
what authority they delivered the documents to B.M. Konar and the
Bank was asked to send either a demand draft for Rs. 2,47,154/-
together with interest or return the documents without further delay.
The complainant is stated to have again sent the reminder to the
Bank on March 1, 1997 to which Bank asked the complainant to
arrange to forward a copy of the letter dated May 4, 1996 for
necessary action.
4. The bank resisted the complaint on diverse grounds, inter
alia, (i) that the complainant was not a consumer within the meaning
of Consumer Protection Act, 1986 (for short, ‘Act, 1986’); (ii) that
the complaint was clearly time barred and beyond the period of
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limitation; (iii) that the bills and GR’s were returned to B.M. Konar,
the Sales Manager of the complainant firm; (iv) that the drawee
( M/s Unique Agro Service) had accepted the liability of payment of
the bills to the complainant vide letter dated May 11, 1994 and also
deposited a cheque to the complainant in that regard.
5. The District Forum framed two points for determination;
(one) whether there is any deficiency on the part of the opposite
party and (two) whether B.M. Konar was authorized agent in
collecting the bills and GR’s from the Bank? Pertinently, despite
the specific plea having been raised by the Bank that the complaint
was time barred, point for determination in this regard was neither
framed nor considered.
6. The District Forum held that there was deficiency in
service by the Bank and that the Bank was liable to compensate the
complainant and consequently, directed the Bank to pay to the
complainant a sum of Rs. 2,47,154/- with interest @ 15% per
annum from April 21, 1994 and Rs. 5,000/- as compensation. As
stated earlier, the State Commission affirmed the order of the District
Forum and the National Commission also did not interfere with the
concurrent orders of the consumer fora.
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7. Section 24A of the Act, 1986 prescribes limitation period
for admission of a complaint by the consumer fora thus:
“ 24A. 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.”
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
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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.
9. In Union of India and Another v. British India Corporation
Ltd. and Others, (2003) 9 SCC 50, while dealing with an aspect of
limitation for an application for refund prescribed in Business Profits
Tax Act, 1947, this Court held that the question of limitation was a
mandate to the forum and, irrespective of the fact whether it was
raised or not, the forum must consider and apply it.
10. In Haryana Urban Development Authority v. B.K. Sood,
(2006) 1 SCC 164 , this Court while dealing with the same provision
viz., Section 24A of the Act, 1986 held:
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“10. Section 24-A of the Consumer Protection Act,
1986 (referred to as the Act hereafter) expressly
casts a duty on the Commission admitting a
complaint, to dismiss a complaint unless the
complainant satisfies the District Forum, the State
Commission or the National Commission, as the
case may be, that the complainant had sufficient
cause for not filing the complaint within the period of
two years from the date on which the cause of
action had arisen.
11. The section debars any fora set up under the
Act, admitting a complaint unless the complaint is
filed within two years from the date of which the
cause of action has arisen. Neither the National
Commission nor the State Commission had
considered the preliminary objections raised by the
appellant that the claim of the respondent was
barred by time. According to the complaint filed by
the respondent, the cause of action arose when,
according to the respondent, possession was
received of the booth site and it was allegedly found
that an area less than the area advertised had been
given. This happened in January 1987.
Furthermore, the bhatties which were alleged to
have caused loss and damage to the respondent,
as stated in the complaint, had been installed
before 1989 and removed in 1994. The complaint
before the State Commission was filed by the
respondent in 1997, ten years after the taking of
possession, eight years after the cause of alleged
damage commenced and three years after that
cause ceased. There was not even any prayer by
the respondent in his complaint for condoning the
delay.
12. Therefore, the claim of the respondent on the
basis of the allegations contained in the complaint
was clearly barred by limitation as the two-year
period prescribed by Section 24-A of the Act had
expired much before the complaint was admitted by
the State Commission. This finding is sufficient for
allowing the appeal.”
11. In a recent case of Gannmani Anasuya and Others v.
Parvatini Amarendra Chowdhary and Others, (2007) 10 SCC 296,
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this Court highlighted with reference to Section 3 of the Limitation
Act that it is for the court to determine the question as to whether the
suit is barred by limitation or not irrespective of the fact that as to
whether such a plea has been raised by the parties; such a
jurisdictional fact need not be even pleaded.
12. Insofaras the present case is concerned, at the first
available opportunity in the written statement itself the Bank raised
the plea that the complaint was barred by limitation. However, the
objection with regard to limitation went unnoticed by all the three fora,
namely, District Forum, State Commission and National
Commission. Since the question relating to limitation goes to the
root of the matter and may render the order illegal, we would now
see whether the complaint was filed within time i.e., within two years
of accrual of cause of action.
13. In this regard, the letter dated April 21, 1994 with which
bills and GR’s were sent by the complainant to the Bank assumes
significance. We reproduce the said letter as it is ;
“M/s B.S. Agriculture Industries (India)
12/15 AA NAWAL GANJ AGRA -6
Ref. No. BA/659/94-95/30 Registered Dated:- 21.4.94
The Agent,
State Bank of India
Khejuri Branch Post. Khjuri Distt. Midnapur
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Dear Sir,
Sub.:Our Invoice No. 17 Date 21.4.94 for Rs. 41,906.48
18 ,, Rs. 42,438.96
19 ,, Rs. 39,645.60
20 ,, Rs. 40,537.44
21 ,, Rs. 23,093.04
22 ,, Rs. 30,755.52
23 ,, Rs. 28,776.96
__________
TOTAL Rs.2,47,154.00
__________
Drawn on M/s Unique Agro Service
P.O. Heria, Distt. Midnapur- 721 430 (W.B.)
Enclosed please find herewith our invoice referred above
alongwith GR. No. 8680, 81, 82, 83, 84, 85, 86 …………..
Dated 21.4.94. Please deliver these documents to the party
on collection of Rs. TWO LAC FORTY SEVEN THOUSAND
ONE HUNDRED FIFTY FOUR ONLY.
Plus your collection charge and remit the proceeds to us by
Demand Draft Payable at Agra under Regd. Post only.
Thanking you for your kind co-operation.
Yours faithfully,
For B.S. Agriculture Ind.(India)
Partner
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Instructions
1. Please collect your charges from drawee.
2. Please return the document if not honoured by dt. 07.06.94.
3. Please charge interest @ 24% PA from dt. 22.05.94
4.
PLEASE COLLECT “C” FORM IF THE PARTY IS UNABLE TO
FURNISH “C” FORM PLEASE COLLECT 6% EXTRA ON COST
OF GOODS.
IF THE DOCUMENT RETIRED WITHIN 15 DAY
FROM BILL DATE DISCOUNT WILL BE ALLOWED
5% AND WITHIN 20 DAYS @ 3% AND WITHIN 30
DAYS @ 1%
Copy to:- M/s Unique Agro Service
Heria, Distt. Mindnapur (W.B.)
With a request to kindly retire the documents on presentation
by the bank and oblige us with your kind intimation of date
when the bill is paid by you.
CC TO PARTY ENCLOSE – AS ABOVE.”
14. The said letter clearly instructs the Bank to return the
documents if not honoured by drawee by June 7, 1994. Obviously,
the cause of action accrued to the complainant on June 7, 1994
when it did not receive the demand draft for Rs. 2,47,154/- nor
received the documents. The limitation, thus, began to run from
June 7, 1994. The complaint ought to have been filed within two
years therefrom which in fact was not done as the complaint was
filed much thereafter i.e., on May 5, 1997. The complaint was
apparently time barred. Learned counsel for the complainant
would, however, submit that the complainant sent various letters to
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the Bank and vide their reply dated March 11, 1997, the Bank
asked the complainant to forward a copy of the letter dated May 4,
1996 for necessary action. It was thus contended by the learned
counsel for the complainant that complaint filed on May 5, 1997 was
within time. We are afraid the letters dated March 15, 1995, May
4, 1996 and March 1, 1997 sent by the complainant to the Bank
and the Bank’s reply dated March 11, 1997 are of no help to the
complainant. The Bank has not by their reply dated March 11,
1997 acknowledged its liability. The Bank only wanted the
complainant to send a copy of the letter dated May 4, 1996 for
necessary action. By no stretch of imagination, it can be said
that the limitation came to be extended by Bank’s reply dated
March 11, 1997. As a matter of fact, the Bank had communicated
to the complainant long back vide its letter dated March 28, 1995
that the bills have been returned to B.M. Konar (Sales Manager of
the complainant firm) on May 10, 1994 and the matter should be
taken up with him (B.M. Konar). The complaint filed on May 5,
1997 is even beyond two years therefrom. There is no application
for condonation of delay nor any sufficient cause shown and,
therefore, the question of condonation of delay in filing the
complaint does not arise.
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15. On its plain averments, the complaint is barred by time
and ought to have been dismissed as such but curiously this aspect
was not examined by any of the consumer fora although specific
plea to this effect was taken by the Bank.
16. Since the complaint is barred by time and liable to be
dismissed on that count, it would be unnecessary to examine the
other grounds of challenge.
17. By way of foot note, we may observe that the learned
counsel sought to raise an equitable plea that the bank was under
an obligation to protect the interest of the complainant and in this
regard placed reliance upon the decision of this Court in Sumatidevi
M. Dhanwatay v. Union of India & Ors., 2004 (4) SCALE 607 .
Firstly, the cited judgment has no application to the present fact
situation. Secondly, and more importantly, the complaint having
been held time barred, this plea is not of much significance.
18. In the result, the appeal is allowed, and the decision of
the National Commission dated October 1, 2001, affirming the
orders of State Commission and District Forum, is set aside. The
complaint stands dismissed as time barred. The parties shall bear
their own costs.
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……………………..J
(D.K. Jain)
……………………..J
(R.M. Lodha)
New Delhi,
March 20, 2009.
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