BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

BENGALURU – 560 027.

DATED THIS THE 20^th DAY OF MARCH 2021

CONSUMER COMPLAINT NO.916/2018

PRESENT:                                                          

Sri.K.S.Bilagi, B.com, M.A., LL.M.….   PRESIDENT

Smt.L.Mamatha, B.A., (Law), LL.B.….    MEMBER

Sri. M.B. Seena, B.A., (Law), LL.B.             ….        MEMBER

Sri.Raviprasad Venkata Subbaiah,

Aged about 52 Years,

Residing at No.1501,

Brookvale Dr.Apts,

San Jose CA 95129 USA.

Represented by GPA

S/o Late T.R.Byatarao,

Aged about 78 Years,

Residing at No.57,

Basaveshwaranagar,

(Complainant is Rep by Dr.P.Ravi Shankar, Adv)

V/s

OPPOSITE PARTIES:

1. The Managing Director,

LIC Housing Finance Limited,

Corporate Office No.131,

“F” Premises, G.D.Somani Marg,

Cuffe Parade,

2. The Manager (Operations)

LIC Housing Finance Limited,

Back Office, Heyes Road,

(Opposite Parties are Rep by Sri.Rajesh Shetty, Adv)

WRITTEN BY SRI K.S.BILAGI., PRESIDENT

******

//ORDER ON MERIT//

1. This complaint has been filed through GPA Holder of the Complainant to direct the Opposite Parties to pay maturity amount of Rs.2,80,080/- with interest at 18% from January-2001 to till the date of realization, compensation of Rs.20,000/- and other reliefs.

2. The case of the Complainant in brief is as under:

The Complainant has opened Home Loan Account dt.13.01.1994 with Opposite Parties and he has paid Rs.1,500/- under every pay-in slip between 01.01.1994 to 22.01.2000.

3. The Complainant also asserts that the 2^nd Opposite Party has informed him by letter dt.01.09.2004 i.e., Account No.D83 has been closed as five years period came to be completed.  The Complainant has been working in USA.  Despite his repeated requests, the Opposite Parties failed to pay his dues as on 31.12.2004 a sum of Rs.2,80,080/- was lying with Opposite Party No.2.  On 06.04.2018 the Complainant had addressed a letter to the Opposite Parties for payment, but Opposite Parties failed to make payment.  Hence this complaint.

4. After receipt of notice, the Opposite Parties appear and file version.  The complaint is false, vexatious and not maintainable.  The complaint is barred by limitation.  As admitted by the Complainant that he has received letter dt.01.09.2004, the filing of complaint on 25.05.2018 is barred by limitation.  Mr.T.B.Varadaraju has no authority to represent the Complainant.

5. The Opposite Parties admit that the Complainant had opened Housing Loan Account No.D-000083 with the Opposite Parties by letter dt.13.01.1994, but the Complainant was not regular in payment under pay in slip.  The Complainant remained silent for a long period of 13 years without filing the complaint.  Hence the Complainant is not entitled to any reliefs. 

6. After amendment of the complaint, the additional version has been filed.  The Complainant has not clarified as to how he has arrived an amount of Rs.2,80,080/- and Complainant is not entitled to this claim with interest.  Therefore, the Opposite Parties request this Commission to dismiss the complaint.

7. The affidavit evidence of GPA Holder of the Complainant has been filed.  The Complainant relies on 15 documents.  The affidavit evidence of official of Opposite Parties has been filed.

8. Heard the arguments of both side and perused the records. 

9.  The points that arise for our consideration are;

1. Whether the Complainant has been duly represented by the authorized person?

2. Whether the complaint is parred by limitation?

3. Whether the Complainant proves deficiency of service on the part of the Opposite Parties?

4. Whether the complainant is entitle to reliefs mentioned in the complaint ?

5. What order ? 

10. Our findings on the above points are as under:-

1. POINT NO.1       : Affirmative
2. POINT NO.2 to 4: Negative

3. POINT NO.5       : As per the final order for

                           the following;

:REASONS:

11. POINT NO.1:- This complaint has been filed by the Complainant through his Power of Attorney Holder Sri.T.B.Varadaraju.  The Opposite Parties contend in the version that T.B.Varadaraju has no authority to represent the Complainant.

12. This complaint came to be filed on 28.05.2018.  The original GPA Deed dt.20.06.2015 has been produced.  This Power of Attorney has been executed by the Complainant infavour of T.B.Varadaraju by executing the same before the notary public.  It also bears the seal and signature of notary public.  Under such circumstances, the Opposite Parties are not right in saying that T.B.Varadaraju is not competent to represent the Complainant.  In view of production of original power of attorney which has been executed much prior to filing this complaint, T.B.Varadaraju is the competent person to represent the Complainant in this case.  Therefore, we answer this point infavour of the Complainant.

13. POINT No.2:- This complaint came to be filed on 28.05.2018 stating that the Opposite Parties addressed a letter dt.06.04.2018 account not traced. Therefore, this complaint has been filed.  According to the Opposite Parties, Complainant has received the letter of Opposite Parties dt.01.09.2004 and complaint filed in the Year 2018 is barred by limitation.

14. In order to appreciate the contention of both parties, it is relevant to refer S-24(A) of Consumer Protection Act, 1986 which reads thus;

24A.Limitation period. - (l) 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 (l), 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.

15. According to the above provision, the complaint is to be filed within two years from the date of cause of action before the District Commission/Forum and complaint can be filed even after lapse of two years from the date of cause of action by assigning good reason for delay in filing the complaint.  The Complainant has not filed any application u/s-24(A) of the Consumer Protection Act, 1986 for condonation of delay.  According to the Complainant, the complaint is within time.  The Complainant asserted in Para-7 of the complaint that the 2^nd Opposite Party by letter dt.01.09.2004 informed the Complainant i.e., loan account with them has been closed as 5 years period is completed. 

16. The Counsel for the Opposite Parties taking the clue from Para-7 of the complaint vehemently argues that the complaint is barred by limitation.  Whereas, it is stated in the affidavit evidence of the GPA Holder of the Complainant that despite letter dt.28.11.2016 & 01.06.2017, the Opposite Parties failed to pay the amount and Opposite Parties informed the GPA Holder of the Complainant on 06.04.2018 rejecting the requests of the Complainant.  Therefore, the Complainant contends that in view of these three correspondences, the complaint is well within time. 

17. The Advocate for the Opposite Parties placing reliance on the decision of Hon’ble Supreme Court of India reported in AIR 2009 Supreme Court 2210, in the matter between State Bank of India V/s B.S.Agricultural Industries vehemently argues that despite receipt of letter dt.01.09.2004, the Complainant and his P.A.Holder were remained silent for a period of 13 years without filing the complaint. 

18. We carefully perused the facts and ratio involved in the above decision, the Hon’ble Supreme Court of India categorically held that “the provision as to limitation is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years”.

19. Even documentary evidence produced by the Complainant has been taken into consideration, document No.2 to 12 are the period from 13.01.1994 to 05.04.2005, only in the year 2016 the GPA Holder of the Complainant made a correspondences with Opposite Parties for refund of the amount.  When the Complainant received intimation about expiry of the period of account on 01.09.2004, the Complainant was supposed to file complaint with 2 years from 01.09.2004.  If document No.12 dt.05.04.2005 is taken into consideration, the Complainant was supposed to be filed a complaint within 2 years from 05.04.2005.

20. The question arises, whether subsequent correspondence between 2016 to 2018 save the limitation. 

21. It is settled proposition of law that once a period of limitation starts, it cannot be enlarged or extended by prolonged correspondence between parties.  Therefore, the correspondence between the PA Holder of the Complainant and Opposite Parties between 2016-2018 does not extend the period of limitation.  This reasoning of us is supported by the decision of Hon’ble National Commission reported in IV (2011) CPJ 114(NC), in the matter between Ramratan M.Shriwas V/s Jayant H.Thakkar.  The Hon’ble National Commission has categorically ruled as under;

Consumer Protection Act, 1986-S-2(1)(g), 21(b), 24-A Flat Agreement Non-honouring of commitments Limitation Forums dismissed complaint.Hence revision Contention, continuous and long correspondence between parties and hence case of continuing cause of action-Not accepted-Once a period of limitation starts, it cannot be enlarged or extended by prolonged correspondence between parties.Provision regarding limitation being of mandatory nature, Fora below was duty bound to determine whether complaint is within limitation period-Complaint barred by limitation.

22. It is the mandate S-24(A) of the Consumer Protection Act, 1986 that the complaint has to be filed within 2 years from the date of cause of action.  Even after receipt of letter of the Opposite Party No.2 dt.01.09.2004 about closure of HL Account No.D-000083 of the Complainant, after expiry of five years, the Complainant for the reasons best known to him remained silent for a long period of 12 to 13 years without filing the complaint.  At this stage, it is relevant to refer the decision of Hon’ble National Commission reported in 2020(1) CPR 265(NC), in the matter between Vikalp Mohan and another V/s M/s Umang Realtech Private Limited and others.  The Hon’ble National Commission has categorically ruled in Para-7 of its order reads thus;

(7) It would be seen from a perusal of the possession letter and the possession slip extracted hereinabove that the physical possession of the allotted flat as well as of open car parking was taken by the Complainants on 05.09.2015.  However, the said possession letters were not even mentioned by him in the Consumer Complaint stipulated before the State Commission, as was noted by the State Commission.

As per Section-24(A) of the Consumer Protection Act, 1986, the complaint had to be filed within two years from the date of cause of action.  The cause of action to seek compensation for the delay in delivery of possession and to seek refund of some charges alleged to have been wrongly taken from the Complainants arise on 05.09.2015.  The Consumer Complaint, therefore, ought to be even stipulated by 05.09.2017.

Though the sale deed has been executed on 09.03.2017 that in my opinion, would not be relevant for the purpose of limitation in a Consumer Complaint seeking compensation for the delivery of possession and refund of the amount alleged to have been wrongly charged from the Complainants. Though the delay could be contained, if sufficient cause for this purpose was shown, no application in terms of Section-24-A(2) of the Consumer Protection Act, 1986, was filed by the Complainants appellants. Therefore, the State Commission, in my opinion, was justified in dismissing the complaint as barred by limitation.  The order passed by the State Commission was justified on the aforesaid facts and does not call for interference by this Commission, in exercise of its appellate jurisdiction.  It is, however, made clear that the dismissal of the Appeal shall not come in the way of the Complainants/appellants approaching a Civil Court or any other Forum except a Consumer Forum for redressal of their grievances.    

23. In view of these discussion, the complaint is barred by Limitation.  Therefore, we answer this point against the Complainant.
24. POINT NO.3 & 4:-  These two points do warrant common course of the discussion.  Both parties have been reiterated the facts pleaded in the complaint and version through their affidavit evidence.  The Complainant relies on 15 documents in support of his contention.  It is proved from the original General Power of Attorney Holder that the Complainant authorized his father-in-law T.B.Varadaraju to initial proceeding and give evidence.  Accordingly, this complaint has been filed through the GPA Holder of the Complainant.  The Power of Attorney has been duly executed before the notary public.

25. It is admitted and proved from document No.2 letter of the Opposite Parties dt.13.01.1994 that the Complainant opened HL A/c No.D-000083 and agreed to remit the amount through pay in slip and interest will be credited upto 31^st March of every year and the Complainant was supposed to remit the amount through Central Bank of India, Brigade Road.  It further indicates that 10 pay-in-slip book at serial No.96 came to be furnished to the Complainant.  It is proved from document No.2 and produced EX.P3 to P12 that the Complainant has remitted a sum of Rs.1,17,500/- and earned interest from time to time.  The Opposite Parties had issued Certificate from time to time about receipt of the deposit amount and interest accrued. 

26. According to the Complainant, the Opposite Parties by letter dt.01.09.2004 informed the Complainant i.e., above loan account has been closed as 5 years period completed.  But despite such intimation the Complainant has not approached the Opposite Parties for refund of his deposited amount with interest.  However only from 28.11.2016 the GPA Holder of the Complainant made correspondence with the Opposite Parties for remittance.  On 06.04.2018 the Opposite Parties informed the GPA Holder of the Complainant that they were expected to preserve the records for 8 years. 

27. The Opposite Parties relies on S-209(4A) of the Companies Act, 1956.  In support of their contention that the Opposite Parties being the Company were supposed to keep the books of account for a period of 8 years immediately preceding the current year.  It is relevant to refer the above provision which reads thus;

S-209(4A)The books of account of every company relating to a period of not less than eight years immediately preceding the current year (together with the vouchers relevant to any entry in such books of account) shall be preserved in good order:

Provided that in the case of a company incorporated less than eight years before the current year, the books of account for the entire period preceding the current year (together with the vouchers relevant to any entry in such books of account) shall be so preserved).                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

28.  Eventhough, the account of the Complainant came to be closed in the Year 2004.  The Complainant for the reasons best known to him never requested the Opposite Parties to refund his amount prior to 2016.  The Complainant has made vague allegation that he made oral enquiry for refund of his amount with the Opposite Parties.  The Complainant and PA Holder of the Complainant are educated person, no ordinary prudent like the Complainant would keep quiet for a long period of 12 to 13 years without asking the concern Company to refund his amount.  The Complainant himself was negligent and kept quiet without asking the Opposite Parties to refund the amount.  The Complainant cannot expect the Opposite Parties to keep the account of the Complainant for a long period.  Under such circumstances, the Complainant is not right in saying that there is a deficiency of service on the part of the Opposite Parties and Opposite Parties are negligent to refund his amount. Under such circumstances, the Complainant is not entitled to any reliefs.  Therefore, we answer these points against the Complainant.

29. POINT NO.5:- For the reasons stated in the preceding paragraphs and after verifying the records, we are of the opinion that the complaint requires to be dismissed. We proceed to pass the following;

         The complaint is dismissed without cost.

       Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to both the parties.

 (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced by the open Forum on 20^th day of March 2021)                                            

• M.B. SEENA )         (L.MAMATHA)          (K.S.BILAGI)    
•  

//ANNEXURE//

Witness examined for the complainants side:

• , GPA.Holder of the complainant has filed his affidavit.

Documents marked for the complainant side:

1. General Power of Attorney dt.20.06.2015.
2. Letter addressed to Complainant dt.13.01.1994.
3. Payment slips for the years (various dates).
4. Certificate for deposit of amount and accrued interest dt.17.07.1999.
5. Certificate confirming outstanding balance dt.07.04.2000
6. Certificate confirming the balance dt.04.04.2001.
7. Certificate for accrued interest dt.14.07.2001.
8. Certificate for Deposit and accrued interest dt.18.06.2002.
9. Certificate for income tax purpose dt.19.03.2003.
10. Receipt for payment dt.25.03.2003.
11. Certificate for Income Tax dt.19.03.2003.
12. Certificate for Income Tax dt.05.04.2005.
13. Letter addressed to Manager Operation dt.28.11.2016.
14. Letter addressed to Manager Operations dt.01.06.2017.
15. Regret letter denying payment dt.06.04.2018.

Witness examined for the opposite party side:                  

Smt.Latha Chandrashekar, Chief Manager of the Opposite Party Company has filed her affidavit.

Documents marked for the Opposite Parties side:

• M.B. SEENA )         (L.MAMATHA)          (K.S.BILAGI)    
•