Ajjappa Venkappa Shelwadi v. Manager Syndicate Bank
2009-06-11
D V SHYLENDRA KUMAR, K.N.KESHAVANARAYANA
body2009
DigiLaw.ai
Judgment :- 1. We find the office is really without any substance or tenability as pointed out by the learned Counsel appearing for writ petitioners, therefore, we have taken up the writ petition itself for preliminary hearing. 2. We have heard Sri.G.R. Andanimath, learned Counsel appearing for the petitioners. 3. Sri. Andanimath, learned Counsel appearing for the petitioners would submit that the order passed by the State Commission dismissing the appeal is a very laconic order that it does not spell out any reason nor as it dealt with the various contentions raised by the petitioners before the State Commission, particularly the legal contentions such as the principles of res-judicata, which is a principle statutorily incorporated in Section 11 of the Code of Civil Procedure, is not applicable to the proceedings before the forum under the Consumer Protection Act, 1986 and therefore, the District Forum was not justified in dismissing the complaint No.585/07 before it. Further, that the appeal to the State Commission was also dismissed without going into the merits and not even adverting to the contentions raised in the appeal and therefore, the order is bad in law and also submitted that the other contention of limitation which is put against the petitioners before the State Commission and District forum are also not very correct in law particularly as in a special enactment like the present Act, which does not prescribe a period of limitation, it could not have been pressed against the petitioners – complainants to the detriment of the complainant. 4. We have perused the orders passed by the District Forum and the State Commission. Complaint itself was against certain earlier auction taken by the bank in course of recovery of the amounts advanced to the complainant’s father during his life time and for recovery of such amount which had been advanced for purchasing a tractor and for non-payment of such amount, the bank has high handedly seized the tractor and auctioned the same without prior notice, etc., this would vitiate such action and therefore, the amount recovered by the father of the petitioner was not justified and for compensation in respect of illegal action by the Bank, a complaint lodged before the Consumer Forum. 5. The Consumer Forum dismissed the complaint particularly holding that the principles of res-judicata and the period of limitation operated against the complainants. 6.
5. The Consumer Forum dismissed the complaint particularly holding that the principles of res-judicata and the period of limitation operated against the complainants. 6. We find on facts that the events in respect of which the complaint had been lodged by the petitioner-complainant was one that took place in the year 19.03.1999, the bank had seized the tractor and sold it in auction, held on 28.3.2000 for Rs.73,500/-and the complainants-legal representatives of the original borrower had filed a complaint earlier in No.64/06 and that had come to be dismissed as per the order dated 28.11.06 and that had become final. 7. It is, thereafter, yet another complaint was brought before the District Forum in complaint No.585/07 and dismissal of this complaint had given cause for filing of Appeal No.1387/08 before the State Commission and this appeal also being dismissed, the present writ petition. 8. The District Forum had occasion to examine the very complaint lodged earlier and had dismissed it on merits. 9. Sri. Andanimath, learned Counsel appearing for the petitioners would urge that the complainants had come across of set of new facts as against the Bank and that gave a fresh cause to file another complaint. We are not impressed by the submission. 10. A complaint urging or alleging the respondent playing fraud is not a matter free from doubt as to whether a specialized forum like Consumer Forum is meant only for causes in the nature of deficiency of service. 11. Be that as it may, when once the District Forum had examined the very complaint and had found no merit in that complaint and dismissed the same and the complainants allowed that to become final; bringing a like cause in the second round and that being dismissed on the ground not only because of the earlier proceedings but also as a belated complaint, as the complaint is now of the year 2007 in respect of a cause that took place in the year 2000 is not a matter which requires examination in article 226/227 jurisdiction, independent of the legal contentions urged by the learned Counsel appearing for the petitioners. 12.
12. We also do not find this is a fit case for expressing views on the legal contentions raised such as the principles of Section 11 being applied in respect of proceedings before the Consumer forum though in an opinion excluding the principle from its applicability to the proceedings before the Consumer Forum would certainly cause considerable uncertainties and lead to multiplicity of avoidable litigation. 13. The argument of Sri. Andanimath about the period of limitations prescribed under the Limitation Act, 1963 in respect of initiation of proceedings before the Consumer Protection Forum over looks the period of limitation prescribed under Section 24-A of the Act which reads as under: 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. 14. We do not find any error or mistake in the view taken by the District Forum. 15. The order passed by the State Commission being only a confirming order no elaborate reason need be given, except for the appellate forum to indicate that it has examined the order and has found reason to agree with it. 16. Even otherwise, we find that it is not as though the State Commission has not given any reason at all had not applied it mind. The State Commission by referring to Section 26 strongly viewed that the District Forum has rightly dismissed the complaints and with reference to Section 26 held that no interference is called for in the order passed by the District Forum. 17. We are also of the view that the complaint before the District Forum in the second round was a matter, which does attract the provision of Section 26. In this view of the matter, these writ petitions are dismissed.