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2013 DIGILAW 725 (CAL)

HDFC Bank Limited v. Ranjit Kumar Saha

2013-09-25

TARUN KUMAR GUPTA

body2013
JUDGMENT : Mr. Tarun Kumar Gupta, J. This is an application under Article 227 of the Constitution of India challenging order dated 24th October, 2011 passed by learned State Consumer Dispute Redressal Commission, West Bengal in S. C. Case No. F.A. No.180 of 2011. 2. It is the case of the petitioner bank that the O. P.s. lodged a false complaint before the District Consumer Forum that out of total aggregate loan amount of Rs. 5,25,000/- only a sum of Rs. 4,00,000/- was disbursed by the petitioner bank and failed to release the balance amount of Rs. 1,25,000/-. The O. P.s. being complainants made allegations of deficiencies in service by the bank in said complaint suppressing the facts that they received a notice under Section 13(2) of the SARFAESI Act for non-payment of major part of the loan amount. On receipt of a copy of said complaint under Section 12 of the Consumer Protection Act, 1986 (hereafter to be referred as the Act of 1986) the petitioner appeared being O. P. and filed written version on 11th of February, 2009. On the ground of not having any official seal of the bank the District Forum directed the bank to file fresh written version with official seal. The District Forum without considering the written version of the bank proceeded to adjudicate said complaint on merit ex parte and by an order being No.17 dated 23rd of March, 2010 passed an award purportedly holding the bank responsible for deficiencies in service and thereby directing the bank to release a sum of Rs. 1,25,000/- being the balance amount of the loan and to pay a sum of Rs. 50,000/- towards compensation and further Rs. 5,000/- towards cost of litigation. Being aggrieved with said order the petitioner bank preferred an appeal before State Consumer Dispute Redressal Commission (hereafter to be referred as State Commission) being S. C. Case No. F.A.180 of 2011 together with an application for condonation of delay of 375 days in filing said appeal. After contested hearing learned State Forum rejected said petition praying for condonation of delay resulting dismissal of the appeal being barred by limitation vide order dated 24th October, 2011. Being aggrieved with said order this revisional application has been filed. 3. Mr. After contested hearing learned State Forum rejected said petition praying for condonation of delay resulting dismissal of the appeal being barred by limitation vide order dated 24th October, 2011. Being aggrieved with said order this revisional application has been filed. 3. Mr. Amitesh Banerjee appearing for the petitioner bank submits that in the petition under Section 5 of the Limitation Act the petitioner bank gave detailed reasons for said delay of 375 days but learned State Commission did not consider the same in its proper perspective. He further submits that learned State Commission did not apply the settled principles of law in the matter of disposing of said application under Section 5 of the Limitation Act. According to him, the words sufficient cause' should receive a liberal construction so as to advance substantial justice. He further submits that at the time of disposing of an application under Section 5 of the Limitation Act the court should concentrate on the grounds mentioned in the petition and not on other grounds. He further submits that in the case in hand learned State Commission without considering the grounds mentioned in the application under Section 5 of the Limitation Act put much stress for certifying the order of learned District Forum as a right one. In support of his contention he refers a case law reported in (2002) 3 SCC 195 , [2002 (2) ICC (S.C.) 1] (Ram Nath Sao alias Ram Nath Sahu and others v. Gobardhan Sao and others) wherein it was held that the term sufficient cause' under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice. He has also referred a case law reported in ( (2010) 3 SCC 732 Secretary and Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity and others) which puts stress upon passing an order duly supported by reasons with the following words:- "Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, it becomes lifeless. Reasons substitute subjectivity by objectivity. Absence of reasons renders the order indefensible/ unsustainable particularly when the order is subject to further challenge before a higher forum." Lastly he submits that existence of an alternative remedy is no bar to invoke the powers under Article 227 of the Constitution of India. Reasons substitute subjectivity by objectivity. Absence of reasons renders the order indefensible/ unsustainable particularly when the order is subject to further challenge before a higher forum." Lastly he submits that existence of an alternative remedy is no bar to invoke the powers under Article 227 of the Constitution of India. In support of his contention he has referred case laws reported in (2000) 7 SCC 522 (Shama Prashant Raje v. Ganpatrao and others), 2005 (1) CHN 165 : [2005(2) ICC (Cal.) 636] (Adarsh Mahila Shiksha Pratisthan & another v. Municipal Assessment Tribunal & Ors.) and AIR 2007 Calcutta 230 (Hooghly Co-operative Agriculture and Rural Development Bank Ltd. v. Nemai Chandra Ghosh). 4. Mr. Partha Chakraborty appearing for O.P. complainants, on the other hand, submits that against the impugned order of rejection of the application under Section 5 of the Limitation Act resulting dismissal of the appeal preferred by the petitioner bank, the petitioner should have moved the National Commission under Section 21 (b) of the Act of 1986. According to him, when there is an alternative remedy then the petitioner should not be permitted to file a revisional application under Article 227 of the Constitution of India as per his whim without availing said alternative remedy. In support of his contention he refers case laws reported in (2012) 2 WBLR (SC) 38 (Nivedita Sharma v. Cellular Operators Assn. of India & Ors.), 1995 (2) CLJ 218 (Visva Bharati v. Smt. Rakhi Debnath & Ors.) and 2009 (2) CLJ (Cal) 685( The Manager, Burdwan Co-operative Agriculture and Rural Development Bank Limited v. Anath Bandhu Dhara). He further submits that in the petition under Section 5 of the Limitation Act the petitioner bank took the plea that though the ex parte judgement was passed on 23rd of March, 2010 but they came to learn about the same for the first time in the first week of December, 2010 and thereafter they took necessary steps for filing the appeal but the same could not be filed before 1st of April, 2011 resulting a delay of 375 days. He submits that in the written objection it was categorically stated by the O.P. complainants that a copy of said judgment dated 23.03.2010 was sent to the petitioner bank by the O. P. complainants on 6th of May, 2010 through registered post with A/D in its proper address but the same returned with the postal remark refused' which amounted to good service. He next submits that learned State Commission has taken note of the overall conduct of the petitioner bank and came to a finding of fact that the petitioner bank failed to explain the delay of 375 days satisfactorily resulting dismissal of the application praying for condonation of delay and the appeal being time barred. He next submits that for making delay a substantial right accrues to the opposite party and that the same cannot be taken away just on asking. According to him, the petitioner praying for condonation of delay should establish that he was not guilty of any latches or negligence. According to him, as the petitioner failed to establish that they were not guilty of any latches or negligence learned State Commission rightly rejected their application as well as appeal being barred by limitation. 5. I have considered the submissions made by learned counsels of the parties and perused the order impugned and other materials on record. It appears from the petition filed by the petitioner bank under Section 5 of the Limitation Act that it tried to make out a case that though the ex parte order was passed on 23rd of March, 2010 but they were not aware of the same till first week of December, 2010. They also took the plea that after knowing about said order in the first week of December, 2010 their office machinery started to roll into motion and that only on 1st of April, 2011 the appeal could be drafted in form. It is further case that thereafter the bank being busy with its year ending process took sometime for approval of the memorandum of appeal and then only said appeal could be filed with a delay of 375 days together with an application for condonation of delay. 6. In terms of Section 15 of the Act of 1986 an appeal against an order of District Forum can be filed in the State Commission within a period of 30 days. 6. In terms of Section 15 of the Act of 1986 an appeal against an order of District Forum can be filed in the State Commission within a period of 30 days. However, the State Commission may entertain the appeal after the expiry of said period of 30 days if it is satisfied that there was sufficient cause for not filing it within that period. Admittedly, the petitioner bank as O. P. appeared in the original case in the District Forum and also filed written version but as the same was not in proper form it was asked to file a fresh one with necessary seal of the bank but it did not file the same. Ultimately the ex parte order was passed on 23rd of March, 2010. It appears that the O.P. complainants sent a copy of said order to the petitioner bank through a registered letter dated 6th of May, 2010 but the same returned with the postal endorsement "refused" which amounted to good service. As such, the knowledge of the petitioner bank about passing of said ex parte order may be traced back to 8th of May, 2010 when said postal article was refused to be accepted by the petitioner bank. It further appears from the materials on record that O. P. complainants initiated an execution proceeding in the District Forum, and that the notice of said case was again served upon the petitioner bank but the petitioner bank did not take any step. 7. Learned State Commission has specifically noted that in different paragraphs of the petition for condonation of delay the appellant stated several facts for such long delay but in support of such facts the appellant did not adduce any corroborative evidence and as such said fact cannot be accepted. Even if the explanations as given in the petition under Section 5 of the Limitation Act are taken on their face value still it cannot be said that those explanations are convincing and sufficient for condonation of delay of 375 days. The Hon'ble Apex Court has consistently held that the words sufficient cause' in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fide, deliberate inaction or negligence on the part of the petitioner [emphasis added]. The Hon'ble Apex Court has consistently held that the words sufficient cause' in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fide, deliberate inaction or negligence on the part of the petitioner [emphasis added]. It was also held by the Hon'ble Apex Court that even if the term sufficient cause' has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. It was further held that once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the petitioner, particularly when the delay is directly a result of negligence, default or inaction of that party and that justice must be done to both parties equally. 8.From the overall conduct of the petitioner bank it is palpable that the assertion that it first came to learn about said ex parte order dated 23rd of March, 2010 in the first week of December, 2010 is not believable. Their subsequent conduct also showed that they were utmost negligent in the matter of filing of the appeal. In every stage of preparation and then filing of the appeal as made out in the application under Section 5 of the Limitation Act it is apparent that they were guilty of latches and negligence. They took it for granted that the delay, if any, would be condoned by the authority as a matter of rule. It is true that at the time of rejection of the application under Section 5 of the Limitation Act learned State Commission made some unnecessary reference to the past conduct of the petitioner bank at the time of hearing of the complaint in the District Forum but that by itself cannot take away the foundation of the order impugned. 9. I have gone through the case laws referred by both sides as to the applicability of Article 227 of the Constitution of India when there is an alternative remedy. 9. I have gone through the case laws referred by both sides as to the applicability of Article 227 of the Constitution of India when there is an alternative remedy. It was held in those case laws that existence of an alternative remedy cannot take away the right of the party for seeking relief from the High Court under Article 227 of the Constitution of India. However, it was held that said relief can be given to a party under Article 227 of the Constitution of India in spite of having an alternative remedy under certain circumstances which are as follows:- 1. in a case where such alternative remedy would not be an efficacious one 2. when an order has been passed by an authority without jurisdiction 3. when an order has been passed by an authority in violation of the principles of natural justice. 10. Admittedly the petitioner bank could have moved the National Commission against the order impugned under Section 21 (b) of the Act of 1986. In terms of said Section 21 (b) of the Act of 1986 the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that said Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise so vested, or has acted in exercise of said jurisdiction illegally or with material irregularity. Admittedly, the alternative remedy as prescribed under Section 21(b) of the Act of 1986 cannot be said to be not an efficacious one in this case. Again it is not a case that the order was passed by an authority without jurisdiction. It is also not a case where an order has been passed by an authority in violation of the principles of natural justice. Here an application under Section 5 of the Limitation Act and the appeal were rejected after contested hearing by passing an order with reasons. It may be that the party aggrieved is not satisfied with the reasons given in the judgment or the order. But that cannot be a ground to brand said order as an order passed in violation of the principles of natural justice. The party concerned has every right to move the appropriate forum against said order. 11. It may be that the party aggrieved is not satisfied with the reasons given in the judgment or the order. But that cannot be a ground to brand said order as an order passed in violation of the principles of natural justice. The party concerned has every right to move the appropriate forum against said order. 11. As such, I am of the opinion that the order impugned is also not coming within the three exceptions as mentioned above to call for exercising extraordinary power under Article 227 of the Constitution of India. 12. As a result, this revisional application is hereby dismissed on contest but without costs. Urgent photostat certified copy of this judgment be supplied to the learned counsels of the parties, if applied for.