State Bank of India Vs.
M/S. B.S. Agricultural Industries (I)  INSC 578 (20 March 2009)
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 JUDGEMENT 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 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 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.
7. Section 24A of the
Act, 1986 prescribes limitation period for admission of a complaint by the
consumer fora thus:
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.
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 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:
6 "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
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, 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 ;
Agriculture Industries (India) 12/15 AA NAWAL GANJ AGRA -6 Ref. No. A/659/94-95/30
Registered Dated:- 21.4.94 The Agent, State Bank of India Khejuri Branch Post.
Khjuri Distt. Midnapur 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.
Thanking you for your
Yours faithfully, For
B.S. Agriculture Ind.(India) Partner 9 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 -
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 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.
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
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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