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2009 DIGILAW 17 (CHH)

STATE BANK OF INDIA v. SALINI CHOUDHARI

2009-01-14

S.C.VYAS, V.K.PATIL

body2009
ORDER Hon'ble Shri S.C. Vyas, President: 1. District Consumer Disputes Redressal Forum, Dhamtari (hereinafter called "District forum" for short) has, vide order dated 03.05.06, decided a complaint case against the appellant Bank bearing complaint case No.06/06, that order is under challenge in this appeal. 2. The order passed by the District Forum was an ex-parte order, it was found that the appellant has failed to appear before District Forum in spite of service of notice. The grievance of the respondent/complainant before District Forum was that a Saving Bank Account of respondent was with the appellant Bank, in which amount of pension of minor was being deposited. Rs.44,964/- was the amount which was deposited in that account and was all of a sudden withdrawn on 24.04.02 by the appellant Bank, without notice to the respondent, resulting a consumer complaint before District Forum. 3. Learned District Forum after taking into consideration the material placed before it, found the complaint case proved and directed the appellant to re-deposit Rs.44,964/- along with interest in the account of the respondent. 4. This order firstly was challenged before District Forum by way of application under order 9 rule 13 of CPC with a prayer to set aside the ex-parte order. That application was not maintainable and was dismissed as such by the District Forum. Then, ultimately appellant came before this Commission by way of this appeal against the order of dismissal of application as well as against the impugned order passed by District Forum, against the appellant Bank. 5. Firstly, this objection has been raised by learned counsel for the respondent that the appeal is not maintainable against original order in the complaint case, as being time barred. She submitted that original order in the complaint case was passed by the District Forum on 03.05.06, whereas this appeal has been filed on 30.10.07. She submitted that no explanation has been provided for this inordinate delay and only delay from the date of order passed on the application under order 9 rule 13 of CPC has been explained and other delay has not been explained. 6. We have considered these arguments. She submitted that no explanation has been provided for this inordinate delay and only delay from the date of order passed on the application under order 9 rule 13 of CPC has been explained and other delay has not been explained. 6. We have considered these arguments. From perusal of record, it appears that the appellant was fighting a litigation under order 9 rule 13 of CPC before District Forum wrongly, as the same was not maintainable under the provisions of Consumer Protection Act, 1986, before District Forum and that application was ultimately dismissed. We find that if that application was moved on account of wrong advice given by some counsel by the Bank then mistake of filing such application can be termed as bonafide mistake and can be ignored. We find that the period, which was spent in contesting that application before District Forum, which was not proper Forum for that prayer, can very well be excluded in computing the period of limitation. Delay from the date of passing of order of application under order 9 rule 13 of CPC has already been condoned. Therefore, we find that after condoning this delay, appeal can very well be heard. 7. The acknowledgement of registered post sent by District Forum in the complaint, shows that it bears a round seal of State Bank of India along with some signature, which is an indication that notice sent by District Forum by registered post was received by someone of the appellant Bank, such post must have been entered in the inward register of the Bank also. Learned counsel for the appellant submitted that no intimation regarding receipt of such notice was ever given to the Manager or Officers of the Bank, and therefore, the Bank was not in a position to appear and contest the complaint, filed by the respondent. 8. More or less same facts have been stated in the affidavit of the Manager of the Bank, filed along with application for condonation of delay. Otherwise also it appears that the appellant is a Nationalized Bank and if some employee of the Bank had shown negligence in performing his duties and had not informed Higher Authorities of the Bank, regarding the complaint of the respondent, then on account of his personal mistake the Bank cannot be penalized. Otherwise also it appears that the appellant is a Nationalized Bank and if some employee of the Bank had shown negligence in performing his duties and had not informed Higher Authorities of the Bank, regarding the complaint of the respondent, then on account of his personal mistake the Bank cannot be penalized. We find that at least one opportunity should be provided to the appellant Bank to put its case before District Forum, in respect of double entries in the Saving Bank Account of the respondent, regarding deposit of pension of few months as per revised pension payment order and also depositing pension of that month as per earlier pension payment order, by producing pension payment order, received by the Bank at different point of time and record of entries of deposit in respect of those payment orders. Thus we find it appropriate and in the interest of justice to provide one opportunity to the appellant to file written version and to lead evidence in the matter. 9. So, this appeal is allowed subject to payment of cost of Rs.1,000/- to the respondent. Both parties are directed to appear before District Forum on 03.02.09. Learned District Forum is directed to provide one opportunity of leading evidence and producing written version to the appellant in the complaint case. Opportunity of rebuttal of such evidence be also provided to the respondent and then the matter be decided afresh. It is made clear that in case it is found that amount was unnecessarily withdrawn from the account of the complainant then District Forum may direct for payment of interest on the amount. With these directions the appeal is disposed off. Case Remanded.