Sri Shyamal Gupta, Member

Present Appeal is directed against the Order dated 21-09-2011, passed by the Ld. District Forum, Kolkata-I (North) in CC No. 132/2005, whereof the complaint has been allowed.

In short, case of the Complainant was that he took a business loan from the OP Bank by pledging shares worth Rs. 3,96,000/-.  Subsequently, the OP Bank vide its letter dated 19-02-1994 intimated the Complainant that a sum of Rs. 68,210.63 stood overdue in respect of the Complainant’s loan account and called upon the Complainant to clear the same with interest.  In terms of the said demand, the OP was asked to liquidate some shares those were pledged with the OP Bank.  Although OP Bank was given such instruction in the first week of April, 1994, the OP Bank actually sold the same on 09-05-1994.  Allegation against the OP Bank was that owing to its belated action, the Complainant suffered monetary loss; hence, the complaint case.

Counter case of the OP was that the Complainant was not a consumer as he availed of the service for commercial purpose.

Decision with reasons

Heard the parties and gone through the documents on record.

At the very outset, it bears mentioning that on the self same cause of action, an Appeal bearing no. FA/166/2009 was filed before this Commission.  By passing an Order on 30-10-2009, although the Ld. District Forum was directed to consider the maintainability point while deciding the fate of the complaint case, it appears that the Ld. District Forum grossly erred in interpreting the true purport of the order of this Commission and accordingly, without considering the maintainability point decided the fate of the case.

We are fully at one with the view of the Ld. Advocate for the Appellant that without considering the maintainability aspect in detail, particularly when the same was challenged by the contesting party, it was grossly improper on its part to delve into the merit of the case.

Accordingly, let us first consider whether the complaint case was at all maintainable under the Consumer Protection Act, 1986, or not.

While deciding the maintainability of a case, it is imperative on the part of the District Forum/State Commission/National Commission, as the case may be, to consider the following aspects: (1) status of the Complainant as a ‘consumer’; (2) limitation aspect; (3) pecuniary jurisdiction.

Undisputedly, the cause of action of the instant complaint case arose in the year 1994, more precisely, on 09-05-1994, when the shares of the Respondent were sold by the Appellant.  As against this, as it appears, a consumer case though filed in the year 1994 itself, the same was prematurely withdrawn by the Respondent.  Thereafter, once again a fresh complaint was filed in the year 2005. 

There is nothing to show that any delay condonation petition was filed on behalf of the Respondent before the Ld. District Forum justifying the delay in filing the complaint case beyond the statutory period of limitation and that the Ld. District Forum passed any order condoning such delay.  Thus, we find that the instant complaint case was hopelessly time barred and hence not maintainable. 

Needless to say, by overlooking this vital aspect, the Ld. District Forum made gross legal infirmity which renders the impugned order into a nullity in the eye of law. In fact, the Ld. Advocate appearing on behalf of the Respondent did not utter a single word in this regard.  Delay being not explained properly, the complaint case was not maintainable. 

In view of above findings, we are not inclined to dwell on the merit of the case.

The Appeal, accordingly, succeeds.

Hence,

O R D E R E D

The Appeal stands allowed on contest against the Respondent.  The impugned order is hereby set aside.  The Respondent shall be at liberty to approach the appropriate Court of Law, if it chooses so.